text:
    DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, Appellant, v. Jerry V. MORALES, Appellee.
    No. 16632.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 12, 1976.

      Ramsey & Murray, John A. Murray, Jr., Houston, for appellant.
    M. Jack Tabor, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from an order denying a plea of privilege. The judgment is reversed.

Plaintiff, Jerry V. Morales, brought suit in Harris County against the defendant, Dairyland County Mutual Insurance Company of Texas, to enforce the provisions of an alleged insurance policy. He alleges that his automobile suffered damage in a collision, and that the insurance company refused to comply with the terms of its contract.

The insurance company filed its plea of privilege alleging that the cause should be removed to Travis County, the county of its residence. The plaintiff filed a controverting affidavit, and contends that venue is proper in Harris "County under exceptions to Article 1995, V.A.C.S., Subdivisions 5, 23 and 28.

Mr. Morales was the only witness to testify at the hearing. He testified that in 1972 he purchased automobile insurance at the same time he purchased the 1972 Toyota automobile. The insurance was purchased through the Howard Insurance Agency in Baytown, and he received an insurance policy from Dairyland County Mutual Insurance Company of Texas covering the car. Both the insurance .and the automobile were purchased in Harris County, and the car was garaged in Harris County. The automobile was involved in a collision in Houston, Harris County, Texas, and suffered damage. Mr. Morales was and is living in Harris County. The insurance policy was never tendered and received in evidence.

By filing a plea of privilege, a defendant establishes a prima facie case to have a suit removed to the county of his residence. To retain venue in a county other than the county of the residence of the defendant, the plaintiff must plead and prove that the case falls within one of the exceptions to V.A.C.S., Article 1995, providing for venue in the county of one’s residence. Collins v. F. M. Equipment Co., 162 Tex. 423, 347 S.W.2d 575 (1961).

In order to come within the exception to exclusive venue in the county of one’s residence provided by Subdivision 5,

Article 1995, supra, the plaintiff must prove that the defendant contracted in writing to perform an obligation in the county of suit, and that the writing expressly named such county, or a definite place therein. The insurance policy in question is not in evidence, and there is no other evidence that the defendant agreed, in writing to perform an obligation in Harris County or a definite place therein. There is no evidence that this suit falls within the provisions of Sub-div. 5. Thompson v. Republic Acceptance Corp. 388 S.W.2d 404 (Tex.1965).

Subdivision 23 of Article 1995, supra, provides that suits against private corporations, associations, or joint stock companies may be brought in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county.

In order to sustain venue in Harris County by reason of the exception found in Subdivision 23, Article 1995, supra, it was necessary that Mr. Morales not only plead but also prove facts showing a cause of action in his favor and against the insurance company. Employers Casualty Co. v. Clark, 491 S.W.2d 661 (Tex.1973). Since the plaintiff failed to prove the terms of his policy of insurance, he failed to prove such a cause of action. Mobile County Mutual Ins. Co. v. Romack, 481 S.W.2d 916 (Tex.Civ.App. — Houston [14th], 1972, no writ history).

Exception 28 to the venue statute reads:

“ . . . Suits against fire, marine or inland insurance companies may also be commenced in any county in which the insured property was situated. Suits on policies may be brought against any life insurance company, or accident insurance company, or life and accident, or health and accident, or life, health and accident insurance company in the county where the home office of such company is located, or in the county were loss has occurred or where the policyholder or beneficiary instituting such suit resides.”

To sustain venue under this subdivision the plaintiff had the burden of pleading and proving that the defendant was one of the types of insurance companies referred to in Subdiv. 28. Employers National Ins. Co. v. Harkness, 497 S.W.2d 645 (Tex.Civ.App. — El Paso, 1973, writ ref’d n. r. e., Tex., 502 S.W.2d 670). There is no evidence in the record to show that the defendant was an insurance company such as is referred to in Subdivision 28.

The trial court erred in denying the plea of privilege. The judgment is reversed for lack of evidence in support thereof. It clearly appears that the case has not been fully developed. Under these circumstances it is the duty of this court to remand the case to the trial court. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948).

Reversed and remanded.


source: Caselaw Access Project

author: COLEMAN, Chief Justice.

license: Public Domain

text:
    Anthony PONTELLO, Appellant, v. QUARTZ AND DUGAS, INC., et al., Appellees.
    No. 16603.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 12, 1976.
    Rehearing Denied March 11, 1976.
    Jamail & Gano, Don M. Barnett, Houston, for appellant.
    Weitinger, Steelhammer & Tucker, Jack W. Tucker, Jr., Houston, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from a take nothing judgment entered by the trial court in a case arising out of an automobile accident. The judgment was entered pursuant to a jury verdict. The plaintiff contends that certain jury answers failing to find the defendant guilty of negligence are so contrary to the great weight and preponderance of the evidence as to be clearly wrong. We affirm.

While traveling north on Interstate 45, the right rear tire and wheel came off a 2-ton truck owned by Quartz and Dugas, ' Inc. and driven by Bobby Lain. As a result the truck blocked nearly the entire width of the two northbound lanes of the highway. Plaintiff, who was traveling north on the same road, was unable to stop his vehicle in time to avoid a collision with the truck.

The accident happened at night. There is a conflict in the evidence as to whether the driver turned off the truck’s lights after it came to a stop.

The testimony establishes that the improper tightening of the lug bolts might result in their being sheered off. One witness who was qualified as an expert testified that the sheering of the lug bolts must have been caused either because the vehicle was overloaded beyond its 2-ton capacity or because the lug bolts were improperly tightened.

Mr. Fred Marvin Calder, the president of the corporate defendant in 1971, testified that the truck was loaded the morning before and left the terminal at about 3:00 o’clock at night. Mr. Lain was the driver and he had driven approximately 75 miles before the wheel failed.. After he had examined a photograph which was taken at the time of the collision, he testified that he didn’t remember what was in the boxes and didn’t know the weight he was carrying, but that it was nowhere near the capacity of the truck. He testified that the trucks were maintained on a monthly basis by the dealer who sold them. He testified that the lug bolts were checked regularly because the brake assembly had to be checked. He also testified that a wheel could come off if the lug bolts were not tight but that was one chance in a million. He said that he did not know the exact date when the truck had last been checked out. He admitted that it was the corporation’s responsibility to see that the trucks were in good working condition. He also testified that they had a man hired to check the lug bolts “any time he got one in the terminal, daily, I would say.” He agreed that if the man did not check the truck and it went out with a loose lug bolt he wasn’t doing his job. On further questioning he said that his man was sort of jack of all trades and that if someone came in and made a complaint he would take care of it. This man did not have a check out list, and “he didn’t have to pass every truck out of the terminal before it went”, and that if somebody didn’t complain he wouldn’t know anything was wrong. The truck had been in service approximately four months.

Mr. La Rue, the expert witness, testified that the lug bolts should be checked approximately every 10,000 miles, but that if you were carrying a full capacity load it would be a good idea to check them every 5,000 miles. He testified that if a truck is loaded beyond its capacity, there will be a strain on the lug bolts that can cause them to break and that the same thing could happen if the lug bolts are not properly tightened. He testified that he knew of no other reason for the lug bolts to sheer off.

Mr. Pontello, the plaintiff, testified that he was going north on High 45 just on the other side of Huntsville when all of a sudden the truck loomed up in front of him. He put on his brakes and veered to the left and collided with the truck. There were no flares and no lights on. He testified that it was pitch dark, that his headlights were working, and that there was nothing that distracted his vision in any way. He testified that the truck just appeared in front of him, that he didn’t know whether it was moving or stopped, and that he didn’t know whether the rear end of the truck or the side of the truck was facing him. He didn’t know how far the truck was from him when he first saw it. On cross-examination he was asked to explain a statement which he made to Dr. Barnes that the truck spun out in front of him and he hit it. He stated that that was just a figure of speech, that he had to tell him something. He also admitted that on deposition he stated: “The truck just jumped out of the clear blue sky.” He explained that by stating that it was just an expression and that it was in fact pitch dark. In the same deposition he stated that he meant that the truck “jumped up all of a sudden. There it was.” He stated that when he first saw the truck it seemed only a matter of seconds before he hit it, and about the only thing he remembered was that he put on his brakes and tried to swerve to the left.

Tommy Moore, a highway patrolman, investigated the accident. He was called around 6:15 a. m. and arrived at the scene around 6:30 a. m. He identified certain photographs which had been introduced in evidence and testified that they were taken about the time he arrived on the scene, and shortly after the accident happened. He testified that the truck’s headlights and taillights were on when he arrived at the scene. He was unable to identify any skid marks caused by Mr. Pontello’s car, but it had begun to rain after the accident occurred. Officer Moore testified: “If the lug bolts aren’t tight it would eventually cause you to sheer the lugs.” He talked to the driver of the truck, Mr. Lain, some thirty minutes after the accident occurred. The driver stated that he was traveling north on Interstate 45 when his right rear tire on the truck, the tire and wheel, came off and he lost control of the vehicle and slid to a stop on the freeway. He got out of the vehicle on the left side and walked around to the right front door and opened it and removed the flares or reflectors from the vehicle and as he was walking back around the front of the vehicle the other vehicle hit the side of his truck. The driver was standing by the front fender of the vehicle when the accident occurred.

In addition to the headlights and taillights, pictures taken at the scene prior to the time the vehicles were removed from the highway show that the truck was equipped with reflectors and cab lights. The truck completely blocked both lanes of traffic. It was sitting at an angle, the front end being nearer the approaching traffic than the rear end. The pictures show that at least one of the front lights, the cab lights, and the side reflectors could be seen by northbound traffic.

Special Issue No. 1 reads:

“On the occasion in question, was Quartz and Dugas acting through its employees or Bobby Leon Lain, negligent in the manner that their truck was maintained prior to the collision in question or negligent in regard to warning the plaintiff, Anthony Pontello, about their truck’s presence on the highway?”

The jury answered “no” both with respect to maintenance and warning. The jury also failed to find the plaintiff guilty of negligence in any respect.

The plaintiff argues that the testimony shows conclusively that the disabled condition of the truck on the highway resulted from the fact that the lug bolts sheered off. All the witnesses testified that such a condition could result if the lug bolts were improperly tightened. Mr. La Rue testified that the only other thing that could cause the lug bolts to sheer off was driving the truck in a overloaded condition. He argues that the testimony of Mr. Calder that the lugs were inspected daily considered in relation with the testimony that the cause of the sheering of the lugs could have been the fact that the lug bolts were not properly tightened, establishes the fact that the employee of the defendant charged with the duty of making the inspection made a negligent inspection.

The jury might have arrived at a conclusion based on the evidence in the record that proper maintenance procedures would require an inspection of the lug bolts at monthly intervals or after the truck had been operated from five to ten thousand miles. There is no evidence as to the number of miles the truck had traveled since the last inspection. There was evidence that the truck was inspected at least on a monthly basis and that the inspection included checking the lug bolts. The monthly inspections were made by employees of the automobile dealer. While the jury might have believed the testimony that daily inspections were made by an employee of Quartz and Dugas, they were not required to do so since Mr. Calder also testified that this employee only took care of problems that were called to his attention by the drivers. The overwhelming preponderance of the evidence does not require a finding that the defendant was negligent in the manner that its truck was maintained prior to the collision in question. There is no testimony showing the length of time required before an insufficiently tightened lug bolt would sheer off. There is evidence that the defendant made provision for regular maintenance work to be done on their trucks. The question of whether the care that the corporation exercised in that regard was proper care is one for the jury. If it be conceded that the lug bolts were sheered off because the lug nuts were not sufficiently tight, there is no evidence to show how long such a condition existed. It is not established, therefore, that a reasonably prudent man in the exercise of ordinary care would have discovered the condition at a time when it could have been repaired prior to the collision. The issue considered is not sufficiently broad to cover the question of whether the defendant was negligent in operating the truck while carrying weight in excess of its capacity. There is no evidence that the truck was in fact overloaded. The issue directs the attention of the jury to the manner in which the truck was maintained. This relates to the methods adopted by the company to keep the truck in an efficient mechanical condition. There is no testimony as to the policy of the company with reference to operating overloaded trucks.

The testimony shows that the accident happened on a dark night. When the truck became disabled it appears that the driver immediately secured flares and was in the process of putting them out as a warning to oncoming traffic. There is nothing in the evidence to suggest that he had time to complete this mission, or that there was a more effective method of warning the approaching traffic. There is evidence from which the jury could conclude that the lights on the truck were shining at the time of the collision. There is little, if any, evidence that the driver failed to take such precautions to warn the oncoming traffic as should have been taken by an ordinarily reasonable person in the exercise of ordinary care.

The judgment is affirmed.


author: PEDEN, Justice.

text:
    TRANSPORT INSURANCE COMPANY, Appellant, v. Bernhardt L. JAEGER, Appellee.
    No. 16636.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 19, 1976.
    Rehearing Denied April 1, 1976.

      Robert C. Floyd, Houston, for appellant; Butler, Binion, Rice, Cook & Knapp, Houston, of counsel.
    Stephen Perel, Houston, for appellee.
   PEDEN, Justice.

This is a workmen’s compensation suit to set aside the award of the Industrial Accident Board. The only issue is whether the trial court erred in dismissing it for want of jurisdiction because the insurance carrier filed it only in the name of the employer, not in its own name, within the twenty-day limit imposed by Section 5 of Article 8307, Vernon’s Texas Civil Statutes. We affirm.

On May 15, 1975, the Industrial Accident Board had awarded the claimant-appellee, Bernhardt L. Jaeger, a recovery against Transport Insurance Company, the workmen’s compensation carrier for Merchants Fast Motor Lines, Inc. On May 27, 1975, the carrier gave the Board notice of its intention to appeal from the award. Two days later this suit was filed. The original

petition was styled: “Merchants Fast Motor Lines, Inc. vs. Bernhardt L. Jaeger." On June 25, 1975, the claimant filed a motion to dismiss this case for want of jurisdiction, and on June 27, 1975, the carrier filed a pleading entitled “Plaintiff’s First Amended Original Petition”, styling it: “Merchants Fast Motor Lines, Inc., and Transport Insurance Company vs. Bernhardt L. Jaeger."

Transport Insurance Company contends that although it was, by mistake, not named in the original petition, it is obvious from the four corners of that pleading that Transport did, in fact, file it and that the omission of its name amounted to a misnomer, not a matter of mistaken identity.

The original petition contained these allegations:

“Comes now Merchants Fast Motor Lines, Plaintiff, and files this suit complaining of Bernhardt L. Jaeger, Defendant .
“1. The Plaintiff is a corporation doing business legally in the State of Texas
“2. . . .It has become necessary to bring this suit because the Defendant filed a claim for Workmen’s Compensation benefits against Transport Insurance Company. In such claim the Defendant alleges he was working as an employee of Merchants Fast Motor .
“This suit is filed to appeal from the Award of the Industrial Accident Board . made on May 15, 1975, in Board No. P 1628 HI (see attached Exhibit ‘A’). The Plaintiff gave notice of appeal from the Award of the Industrial Accident Board .
“3. Transport Insurance Company is the Workmen’s Compensation insurance carrier for the employees of Merchants Fast Motor Lines, Inc. .
“4. Plaintiff would urge that Transport Insurance Company paid Defendant the total sum of $1,260.00 in Workmen’s Compensation benefits and requests the Honorable Court to give Plaintiff proper credit for same. Further, Plaintiff says Transport Insurance Company has paid the sum of $2,861.50 in behalf of Defendant to relieve and/or cure the effects of Defendant’s alleged injury and in this regard Plaintiff urges through the above stated payments Transport Insurance Company has discharged its duty to Defendant.
“WHEREFORE, Premises Considered, MERCHANTS FAST MOTOR LINES, INC., Plaintiff, prays that the Defendant be cited to appear and answer herein; that upon final hearing Plaintiff have judgment that Defendant take nothing of the Plaintiff, and that the Award of the Industrial Accident Board in No. P 1628 HI be set aside and hand for naught, and that the Plaintiff be discharged with its costs of Court, and that Plaintiff be awarded such further relief to which it may be entitled.”

Article 8307, Sec. 5, provides in part:

“. . . Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision ... If the final order of the Board is against the Association, then the Association and not the employer shall bring suit to set aside said final ruling and decision of the Board, if it so desires, ... If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto . . .”

Remedies under the Workmen’s Compensation Act are purely statutory; each step toward maturity of a compensation claim is a mandatory requirement necessary to invoke the jurisdiction of each statutory agency or court. The filing of suit to set aside the award of the Board within 20 days after notice of appeal is a jurisdictional requirement. Brown v. McMillan Material Co., 108 S.W.2d 914 (Tex.Civ.App.1937, writ ref.); Richards v. Consolidated Underwriters, 411 S.W.2d 436 (Tex.Civ.App.1967, writ ref.).

The employer in a workmen’s compensation case is not a party to the Board’s adjudication and may not be a party to the suit to set it aside. Mike Hooks, Inc. v. Pena, 313 F.2d 696 (5th Cir. 1963) and Texas cases cited therein. The original pleading was not filed by an “interested party” and the interested party, the insurance carrier, did not become a party plaintiff until after the twenty day limitation period had passed. The statute provides that any interested party who has given notice that he will not abide by the Board’s award shall within twenty days thereafter bring suit to set aside the award.

“This implies that suit shall be brought by the party having the cause of action and that a suit brought by one person will not suspend the running of the statute as to a suit subsequently brought by another person for the same cause of action, there being no privity between them.” 37 Tex.Jur.2d 268, Limitation of Actions, § 112.

There was no privity between Transport and Merchants.

The carrier relies on Charter Oak Fire Ins. Co. v. Square, 526 S.W.2d 635 (Tex.Civ. App.1975, writ ref. n. r. e.). In that case, Travelers Insurance Co. was the compensation carrier, had participated in the Board’s proceedings, and had properly filed its notice of intention not to abide by the Board’s award but had incorrectly styled its pleadings: “Charter Oak Fire Insurance Go. a/k/a Travelers Insurance Co. v. Square.”

The appellate court held that the trial court erred in dismissing the suit for want of jurisdiction, stating:

“It is the settled rule in this State that the mere misnaming of a plaintiff in an original petition does not prevent the tolling of a statute of limitations by the filing; and that this misnomer is properly correctible by an amended petition even after the running of the time prescribed by the statute.”

That case may be distinguished on the facts from the case at bar. The plaintiff in that case was named in the caption and was an interested party under the statute. The court’s principal task in that case was to determine from the original petition which of the two insurance carriers named in the caption was “the real party plaintiff” or the “intended plaintiff”; in our case only the employer was named as the plaintiff. In our case the only named plaintiff, Merchants, is not an interested party within the meaning of the statute and is not permitted to appeal from Board awards. Merchants Fast Motor Lines, Inc. and Transport Insurance Co. are separate and distinct corporations. In our case the naming of the employer as plaintiff instead of the insurance carrier was a mistake as to the law, not a misnomer.

In Garcia v. Employer’s Casualty Co., 519 S.W.2d 685 (Tex.Civ.App.1975, writ ref. n. r. e.), Garcia timely sued and served the wrong defendant, Texas Employer’s Insurance Association, by its right name and tardily sued and served the right defendant, Employers Casualty Co., by its right name. The court said that absent the complete summary judgment record it must be presumed that the missing citations sustain the trial court’s finding that Garcia mistakenly identified, and not merely misnamed, the defendant. The cause was dismissed for want of jurisdiction as to Employers Casualty Co.

The test for determining the identity of a cause of action for limitation purposes is:

“1) Would a recovery had upon the original bar a recovery under the amended petition? 2) Would the same evidence support both of the pleadings? 3) Is the measure of damages the same in each case? 4) Are the allegations of each subject to the same defenses?”

Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707, 709 (1901); Womack Machine Supply Co. of Houston v. Fannin Bank, 499 S.W.2d 917, 919 (Tex.Civ.App.1973, affirmed as to this question, 504 S.W.2d 827, Tex.1974); Transport does not pass this test; Merchants, being the employer, could not recover on the petition it filed.

Affirmed.


author: REYNOLDS, Justice.

text:
    Juan LEE, Appellant, v. WESTCHESTER FIRE INSURANCE COMPANY, Appellee.
    No. 8638.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 23, 1976.

      Smith & Smith Law Offices, Mickey Blanks, Lubbock, for appellant.
    Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellee.
   REYNOLDS, Justice.

A workmen’s compensation claimant, who recovered from the party liable for his injuries a sum greater than that paid by the intervening insurance carrier, seeks under Vernon’s Ann.Civ.St. art. 8307, § 6a, a fee for his attorney payable out of the carrier’s subrogation recoupment on the ground that the carrier’s interest was not actively represented by its attorney. The trial court, finding that the carrier’s interest was actively represented by its attorney, denied the motion for attorney’s fee. The claimant appeals, asserting that the evidence establishes his contention as a matter of law. There being some evidence to sustain the trial court’s finding, the contention must be overruled. Affirmed.

The claimant’s contention is referenced to workmen’s compensation legislation and the evidence heard by the trial court. As originally enacted, V.A.C.S. art. 8307, § 6a, provided that an employee injured by a party legally liable for the injury waived his claim to workmen’s compensation benefits if he elected to proceed against the liable party prior to the final determination of his compensation claim. See Campbell v. Sonford Chemical Company, 486 S.W.2d 932 (Tex. 1972). Effective 1 September 1973, the statute was amended to specify that if the injured employee proceeds against the person legally liable to pay damages for his injury, the employee shall not waive his rights to compensation under the law. The workmen’s compensation insurance carrier is subrogated to the rights of the injured claimant to the extent of the amount paid or assumed under its policy. The new enactment provides, insofar as material to the contention made here, that,

. when the claimant is represented by an attorney, and the association’s interest is not actively represented by an attorney, . . . the court shall allow a reasonable attorney’s fee to the claimant’s attorney for recovery of the association’s interest which in no case shall exceed thirty-three and one-third per cent (33V3%) payable out of the association’s part of the recovery . . ,.

After the effective date of the amendment, Juan Lee was an employee of Lubbock attorney Mark Smith who had subscribed to a policy of workmen’s compensation insurance issued by Westchester Fire Insurance Company. Lee was injured on 5 September 1973 when the automobile he was operating in the course of his employment for Smith was involved in a collision with an automobile driven by Rose Sproles. Lee, acting by his employer, attorney Smith, filed a workmen’s compensation claim with the Industrial Accident Board and, from time to time, Westchester paid compensation benefits to, and medical expenses for, Lee.

At the time of the collision, Roel Garza was a passenger in Lee’s automobile. Four months after the collision and while West-chester was making payments under Lee’s compensation claim, Lee and Garza, represented by attorney Smith, filed their personal injury suit against Rose Sproles, whose liability was apparently clear. Smith did not give notice of the suit to Westches-ter, and he told the attorney for Sproles’ insurance company that he, Smith, was handling settlement negotiations. Upon learning of the suit from Sproles’ insurance company, Westchester retained, and submitted its complete investigation file to, the firm of Key, Carr, Evans & Fouts to intervene in the suit and represent its interests. A member of the law firm, after reviewing the file, filed Westchester’s plea in intervention which asserted its right through subrogation to first receive out of Lee’s recovery from Sproles the amount West-chester had paid to and on behalf of Lee, as well as the right to amend its pleadings for the recovery of any future amounts it was obligated to pay. Lee and Sproles were notified of the intervention by a copy of the pleading sent to their attorneys of record.

Thereafter and without notice to West-chester’s attorney whose policy was to actively participate in taking depositions, Smith, as Lee’s attorney, took the deposition of Sproles, whose insurance company attorney on the same day secured the depositions of Lee and Garza. Next, Smith addressed medical interrogatories to Lee’s treating doctor and furnished a copy to Westchester’s attorney. After reviewing Westchester’s file, its attorney thought Smith’s interrogatories were sufficient and deemed no further medical information was needed for Westchester’s purposes. However, neither the cross interrogatories directed to the treating doctor and to another doctor by the attorney for Sproles’ insurance company nor Smith’s re-direct inquiries to the doctors, as well as several other documents exchanged between these attorneys, are shown to have been furnished to Westchester’s attorney.

Subsequently, Westchester notified its attorney that Lee’s compensation claim had been settled for $20,721.65. The attorney then filed an amended petition in intervention to show the full amount of its subro-gated interest. At this time, the attorney for Sproles’ insurance company offered her policy limits of $25,000 to settle Lee’s suit against her. Smith, however, was also pressing for the settlement of Garza’s claim, and no agreement was reached then. On at least three occasions, Westchester’s attorney and the attorney for Sproles’ insurance company communicated as to the settlement.

Some eight or nine months after the settlement offer was made, Smith and Sproles’ insurance company’s attorney agreed to settle Lee’s suit against Sproles for $25,000. Following the agreement, Lee filed in the suit his motion for assessment of a fee for his attorney out of Westchester’s recoupment, the material allegations of which are: “Plaintiff would show that although the Intervenor [Westchester] has retained an attorney to represent its interests in this suit, said attorney has not actively participated in obtaining a recovery for Interve-nor and that, therefore, pursuant to the provisions of the aforementioned statute [V.A.C.S. art. 8307, § 6a] Plaintiff’s Attorneys are entitled to a reasonable attorney’s fee of one third of the recovery of the Intervenor on its subrogated claim.” West-chester controverted the motion.

After severing Garza’s portion of the suit and hearing the evidence from which the foregoing was summarized, the trial court entered judgment on the $25,000 compromise and settlement between Lee and Sproles, apportioned Lee’s recovery to Westchester in the sum of $20,721.65 and to Lee in the amount of $4,278.35, and denied Lee’s motion for assessment of a fee for his attorney against Westchester’s subrogated recoupment. At Lee’s request, the court made and filed findings of fact and conclusions of law. One of the court’s findings is that Westchester’s subrogation claim has been actively represented by Key, Carr, Evans & Fouts at all material times; another finding is that the law firm actively represented Westchester to the full extent necessary to protect its subrogation interest and actively participated in obtaining a recovery.

Limited to that portion of the judgment denying an attorney’s fee, an appeal has been perfected by Lee. By one point of error composed of two parts, Lee contends that Westchester’s subrogation claim was not actively represented by the law firm of Key, Carr, Evans & Fouts and, therefore, his attorney, Mark Smith, was due a reasonable attorney’s fee from West-chester’s subrogation interest. The prayer is that the judgment of denial be reversed and that judgment be rendered for a reasonable attorney’s fee of one-third of the subrogation interest.

Drafted to attack the trial court’s failure to affirmatively find as the ultimate fact that Westchester’s interest was not actively represented by its attorney, the point of error is judicially recognized as the contention that the fact was established “conclusively” or “as a matter of law.” Hatchell and Calvert, Some Problems of Supreme Court Review, 6 St. Mary’s L.J. 303, 323 (1974). The point presents the question whether as a matter of law there was any evidence to sustain the judgment of the trial court, Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 (1948); that is, whether there was evidence that Westchester’s interest was actively represented by its attorney.

Before the court was the evidence that Westchester’s attorney reviewed the file to determine the proper petition for intervention; he filed an original petition in intervention and notified opposing counsel; he considered the medical interrogatories furnished him, and in reviewing his file, deemed no further inquiry necessary; he amended the petition in intervention when Lee’s compensation claim was settled; he exchanged settlement communications with the attorney representing the party liable for Lee’s injuries; and he participated in the culmination of the settlement between Lee and Sproles to the extent, at least, that Westchester’s full subrogation interest was protected and secured. Clearly, these things done in representing Westchester’s interest are more harmonious with action or movement than with inaction or idleness and, under the circumstances, constitute some evidence that Westchester’s interest was actively represented by its attorney. Therefore, there being some evidence to sustain the finding upon which the judgment is properly based, “we cannot, as a matter of law, hold otherwise.” Rourke v. Garza, 530 S.W.2d 794, 799 (Tex.1975). The point of error is overruled.

The judgment is affirmed.

      . Alternatively, the statute makes provision for (1) the association to pay the claimant’s attorney a reasonable fee not to exceed one-third of the subrogated recovery pursuant to their agreement fully disclosed in writing and acknowledged by the claimant and filed, or (2) the apportionment of a reasonable fee not to exceed one-third of the subrogated interest between the claimant’s attorney and the association’s attorney who actively participates in obtaining a recovery. However, claimant Lee has not contended that his attorney is entitled to a fee under either of these two provisions, and they will not be further noticed.

      . In considering the appeal we have not overlooked the anomaly presented by Lee’s pursuit of a right statutorily conferred on another. By the statute, the exclusive right to an award of an attorney’s fee is in the claimant’s attorney and not in the claimant. Generally, a right must be exercised by the one in whom it is vested, and one person may not bring an action on the right of another. Kaplan v. Kaplan, 373 S.W.2d 271 (Tex.Civ.App. — Houston 1963, no writ). Insofar as the record reveals, Lee’s attorney has not asserted his right to an attorney’s fee. He, himself, did not move for the fee; he did not join in Lee’s motion; and he has not appealed from the denial of Lee’s motion that he be awarded an attorney’s fee. Nevertheless, Westchester waived any right to contest Lee’s legal capacity to pursue the action by not filing the verified plea required by Rule 93(b), Texas Rules of Civil Procedure, to challenge Lee’s capacity. McGinnis v. McGinnis, 267 S.W.2d 432 (Tex.Civ.App. —San Antonio 1954, no writ).


author: . SHANNON, Justice.

text:
    Jack GUENTHER, Independent Executor of the Estate of Rosalie M. McClure, Deceased, Appellant, v. AMER-TEX CONSTRUCTION COMPANY, Appellee.
    No. 12387.
    Court of Civil Appeals of Texas, Austin.
    Feb. 25, 1976.
    Keith E. Kaiser, William R. Simcock, Cox, Smith, Smith, Hale & Guenther, Inc., San Antonio, for appellant.
    J. C. Reagan, Bartram, Reagan & Burrus, New Braunfels, and Robin P. Hartmann, Haynes & Boone, Dallas, for appellee.
   . SHANNON, Justice.

Appellee, Amer-Tex Construction Company, filed suit in the district court of Comal County against Rosalie M. McClure for specific performance of a contract to convey land. Before trial, Rosalie M. McClure died, and the independent executor of her estate, Jack Guenther, was made defendant. After trial to the court, the district court entered judgment for specific performance.

The contract to convey contained the following description of the land:

“Reference is made to that certain tract of land adjoining Potter’s Creek Park at Canyon Lake in Comal County, Texas, as shown on the attached Exhibit ‘A’, herein called ‘the land.’

Appellant’s principal contention is that the contract to convey did not describe the land with sufficient certainty to meet the requirements of the Statute of Frauds, Tex.Bus. and Comm.Code Ann. § 26.01 (1968).

To comply with the requirements of the Statute of Frauds, 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, 477 S.W.2d 538 (Tex.1972), Williams v. Ellison, 493 S.W.2d 734 (Tex.1973), Rowson v. Rowson, 154 Tex. 216, 275 S.W.2d 468 (1955), Broaddus v. Grout, 152 Tex. 398, 258 S.W.2d 308 (1953), Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945), National Resort Communities, Inc. v. Cain, 479 S.W.2d 341 (Tex.Civ.App.1972, writ ref’d n. r. e.).

We are of the opinion that the contract to convey did not furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed could be identified with reasonable certainty. The only description of the land, other than that the land adjoined “Potter’s Creek Park at Canyon Lake in Comal County, Texas,” consisted of “Exhibit A,” a sketch or map not drawn to scale. The map did not show the width or length of the boundary lines, nor was there any indication that the boundary lines were to be parallel. The map did not show the approximate size of the tract or the number of acres contained therein. There was no recitation in the contract that Rosalie M. McClure owned or resided on the property. There was no reference in the contract to recorded deeds or other instruments from which the land might be identified.

Appellee argues that a “reasonable” man could take the map ánd locate the land on the ground. We are unable to agree. Most probably one could locate the fence at the corner of Potter’s Creek Road and Potter’s Creek Park. It would probably be possible to trace the fence westward to the “US Govt Pk Rd.” At or about the “US Govt Pk Rd” there is shown some kind of utility line, perhaps an electric line, a telephone line, or a gas pipeline. If one could find the utility line, one is supposed to follow that line north for an undetermined distance to a “fence” which runs in an easterly direction. We conclude that from an examination of the map only the southeastern corner of the tract at Potter’s Creek Road and Potter’s Creek Park could be established with any reasonable certainty.

Doubtless the parties to the contract to convey knew and understood what land was intended to be conveyed. Moreover, two of appellee’s witnesses testified that sometime after the contract was signed a surveyor located the land and made a metes and bounds description thereof. However, the knowledge and intent of the parties will not give validity to the contract, Morrow v. Shotwell, supra, Rowson v. Rowson, supra, and National Resort Communities, Inc. v. Cain, supra; and neither will a plat made up from extrinsic evidence. Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948), Morrow v. Shotwell, supra.

The judgment is reversed and judgment is here rendered that appellee take nothing.


author: O’QUINN, Justice.

text:
    Pamela Jean GALVAN, Appellant, v. Paul B. GALVAN, Appellee.
    No. 12342.
    Court of Civil Appeals of Texas, Austin.
    Feb. 25, 1976.
    Rehearing Denied March 24, 1976.

      Van Thompson, Jr., Austin, for appellant.
    Paul T. Holt, and William F. Turman, Austin, for appellee.
   O’QUINN, Justice.

Appeal in this cause is from action of the trial court, taken in divorce proceedings, by which the court in making division of property awarded a tract of 16.10 acres of land in Bastrop County to appellee, the husband.

Appellee sued for divorce and partition of separate and community property by suit filed in October of 1974, in which he alleged that the 16.10 acres were his separate property. Appellant answered claiming an undivided one-half interest in the tract. Inventories were ordered by the trial court, and the parties, in filing sworn inventories, made representations in conformity with their respective pleadings. Appellant claimed that the 16.10 acres of land had been acquired by the parties “as a gift of deed . . . from [the husband’s parents]” in April of 1974, and that the land had “an approximate value of $2,000.00 per acre.”

Trial was before the court without a jury, and on February 10, 1975, the court dissolved the marriage and granted divorce to appellee, but reserved ruling on division of the property until February 27, after which judgment was entered on April 7 in which personal property was divided between the parties and the 16.10 acres were found to be separate property of appellee, and appellant was “divested of all right, title and interest therein.”

The trial court found, in the final judgment, that appellee and his father had purchased the “16.10 acre tract of land [prior to the marriage] . . . and that after said marriage . . . Petitioner and Respondent [appellee and his wife] paid the balance of $600.00 on said real property, and the Court finds that the sum of $300.00, heretofore . . . [awarded appellant wife in the decree] is due by Petitioner to Respondent, said sum being one-half of the final payment on said tract of land . . ”

Appellant relies on the deed from appel-lee’s parents to appellee and appellant purporting to convey the 16.10 acres to both parties in consideration of love and affection “and other valuable consideration.”

Under her first point of error appellant contends that the trial court erred in not giving effect to the deed from appellee’s parents “. . . because (1) the evidence in opposition thereto violates the parol evidence rule, and (2) the court had no jurisdiction to set the deed aside.” Appellant insists that in the absence of fraud, accident, or mistake, the terms of the deed may not be changed.

The trial court permitted introduction of parol evidence offered to rebut prima facie presumptions of a gift to appellant of an undivided one-half interest in the 16.10 acres. From the evidence the court concluded that the tract was the separate property of appellee. Appellant complains only that the evidence was inadmissible and does not challenge the probative value of the evidence.

In instances where the husband knowingly permits a deed to be made to his wife, or to him and his wife, jointly, without recitations indicating a contrary determination, such act raises a prima facie presumption of a gift to the wife where the husband furnishes the consideration from his separate estate. Carriere v. Bodungen, 500 S.W.2d 692, 694 (Tex.Civ.App. Corpus Christi 1973, no writ), and cases cited. The presumption is rebuttable, and parol evidence is admissible to rebut or to show that the gift was intended to be made to only one óf the grantees. Hampshire v. Hampshire, 485 S.W.2d 314 (Tex.Civ.App. Fort Worth 1972, no writ); Van Zandt v. Van Zandt, 451 S.W.2d 322 (Tex.Civ.App. Houston (1st) 1970, writ dism’d). Recitals of a deed are not conclusive as to consideration, and inquiry by parol evidence may be employed to show the real consideration, if there was any. Puckett v. Frizzell, 377 S.W.2d 715, 721 (Tex.Civ.App. Tyler 1964, no writ); Kleck v. Kleck, 246 S.W. 720 (Tex.Civ.App. San Antonio 1922, no writ).

Parol evidence was admissible in this case to show either that the husband, if he furnished valuable consideration, did or did not intend to make a gift to his wife; or that the grantors did not intend to make a gift to the wife, even though she was one of the named grantees. It is elementary that whether the evidence, offered to rebut the presumption of a gift, established that there was no gift to the wife and that the land was the separate property of the husband, was for determination of the court as trier of the facts.

Appellant has preserved and presented no point of error under which she asserts that the evidence was insufficient to support the findings of the court or that it was against the weight and preponderance of the evidence. The record discloses evidence that supports the court’s findings. In effect, appellant complains on appeal only that the trial court erred in admitting and consider-' ing the parol evidence, a contention we overrule, and has not challenged the findings of the trial court as not being supported by the evidence.

This Court is directed to “decide all issues presented ... by proper assignments of error . . . whether such issues be of fact or of law . . . ” (Rule 451, Texas Rules of Civil Procedure). Findings of a trial court unchallenged on appeal are binding on the parties and the appellate court. 3 Tex.Jur.2d, Appeal and Error, sec. 137, p. 517 (1974), and numerous cases cited.

Since the findings of the trial court, upon which the judgment rests, are conclusive on the parties and this Court, we may not consider appellant’s remaining points of error contending that the action of the court divested appellant of title to separate realty.

Judgment of the trial court is affirmed.

Affirmed.


author: YOUNG, Justice.

text:
    CHARTON CORPORATION, d/b/a Valley Central College of Harlingen, Texas, et al., Appellants, v. Dr. M. L. BROCKETTE, Administrator of the Proprietary School Act of Texas, Appellee.
    No. 1009.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 26, 1976.
    Rehearing Denied March 25, 1976.

      Van Thompson, Jr., Austin, for appellants.
    John L. Hill, Atty. Gen., Roland H. Allen, Mark L. Perlmutter, Asst. Attys. Gen., Austin, for appellee.
   OPINION

YOUNG, Justice.

This is the second of two appeals from interlocutory orders. The first appeal was from an ex parte order granting a temporary restraining order and appointing a receiver. And now this appeal is from an order entered after hearing and notice granting a temporary injunction and continuing the receivership after hearing. This Court granted a joint motion of the parties to consolidate these appeals for the purposes of briefing and submission only.

Doctor M. L. Broekette, Administrator of the Proprietary School Act of Texas, brought this suit by verified petition filed 3:00 P.M., April 29, 1975, in his official capacity by and through the Attorney General of Texas against Charton Corporation, d/b/a Valley Central College of Harlingen, Texas, and its president Charles E. Damron, seeking a temporary restraining order without notice and the appointment of a receiver without notice. The trial court entered, ex parte, an order on April 29 at 2:55 A.M. (probably 2:55 P.M.) appointing a temporary independent receiver over the assets of the corporation and a temporary restraining order. By the terms of the order it was to remain in effect until a hearing to be held on May 8, 1975.

The Administrator’s Original Petition alleged that the defendant Damron is president, sole partner, sole officer, sole trustee and major shareholder of the defendant corporation, and personally used this corporation to perpetrate certain unlawful acts in violation of the Texas Proprietary School Act, Tex.Educ.Code Ann. § 32.01; that the defendant corporation is a proprietary school under the Act; that suit is brought pursuant to the authority granted the Administrator under § 32.62 of the Act; that the defendants failed and refused to make tuition refunds to students who terminated their studies prior to completing a course of instruction in violation of § 32.39 of the Act; that the defendants owe in excess of $132,000.00 in unpaid past due refunds; that the defendants operated a proprietary school without a certificate of approval in violation of §§ 32.31 and 32.61 of the Act; that the defendants represented to prospective students that they held such a certificate in violation of § 32.61(a)(4) of the Act; that continued operation of the business will cause irreparable injury to the students enrolled and the public in general; that the corporation does not have an identity or existence separate and apart from Damron, but at all times acted as his agent or alter ego; and that the corporation is insolvent or is in imminent danger of insolvency.

Upon the hearing held as scheduled on May 8, the Administrator sought to amend his petition to include within the injunction and receivership the personal assets of Damron. The court allowed the amendment and granted a continuance at the defendants’ request and plea of surprise until May 15. The defendants stipulated and agreed to the entry of a temporary injunction prohibiting operation of the school without a certificate. The defendants, however, objected to the entry of an order that would issue against Damron personally, explaining that he owned two other schools. The Administrator agreed that the injunction should be limited to the school in Harlingen. The court ordered on May 14 that the temporary restraining order and receivership be continued for good cause. The defendants filed on May 8 their motion to vacate the receivership. Thereafter, the defendants gave notice of appeal from the trial court’s order entered April 29 and perfected their first appeal to this Court on May 15.

After the hearing on May 15 the trial court made the following findings and reached the following conclusions based on the testimony adduced at that hearing:

“1. In all probability, the court will find upon final hearing that Charles E. Dam-ron is the alter ego of Charton Corporation and is personally liable for the debts of said corporation.
2. In all probability, Plaintiff will be entitled to a permanent injunction against the operation of Valley Central College of Harlingen, for operating without a Certificate of Approval.
3. In all probability, continued operation of Valley Central College of Harlingen pending the conclusion of this litigation would cause irreparable injury to prospective students and the public.
4. In all probability, Charles E. Damron and Charton Corporation will be adjudged to owe in excess of $150,000 to former students of Valley Central College of Harlingen, and will be permanently enjoined from failing to pay such refunds.
5. Failure to temporarily enjoin dissipation, sale for less than value, or secretion of Mr. Damron’s personal assets will in all probability irreparably injure students who are presently owed refunds.
6. Nothing less than a receivership of the assets of Valley Central College at Harlingen will enable presently owing refunds to be paid according to law and will protect Plaintiff’s interest in the judgment to which, in all probability, Plaintiff will be awarded.
7. Receivership is justified in that Defendants have incurred refund liability through fraudulent representations and have mismanaged Charton Corporation so as to render it insolvent. Moreover, there is danger that the assets of Valley Central College at Harlingen may be subject to material injury or removal.”

These findings and conclusions were included in the court’s order entered May 29 in which the defendant Damron was enjoined from operating the school in Harlin-gen and from dissipating, secreting, selling or disposing of for less than fair value received the assets of the school or his own personal assets. The receivership was continued over the assets of the school and enlarged to encompass the personal assets of Damron. This order was by its terms to remain in effect until judgment on the merits or until further order of the court. The defendants gave notice and perfected an appeal from this order also. This is the appeal we will consider in this opinion.

The appellants have brought four points of error. Points one and three complain of the trial court’s order entered ex parte on April 29, which we will not discuss further here. In points two and four, they complain of the trial court’s order entered, after notice and hearing, on May 29. Appellants contend in point four that the order of May 29 is void because the trial court was without jurisdiction to proceed after the appeal from the order of April 29 had been perfected. To support this contention, appellants rely upon the cases of Palafox v. Boyd, 400 S.W.2d 946 (Tex.Civ.App. — El Paso 1966, no writ) and Hyatt v. Mercury Life & Health Co., 202 S.W.2d 325 (Tex.Civ. App. — San Antonio 1947, no writ). We do not find these cases controlling of the case at bar.

Palafox and Hyatt are representative of those cases holding that as a general rule the perfection of an appeal terminates the authority of the lower court to proceed in the cause as to those matters which might encroach upon the appellate function and the jurisdiction of the appellate court. Thus, the question is whether the order entered by the court on May 29 encroached upon the appellate function and the jurisdiction of this Court.

The May 29 order served two purposes. It converted the temporary restraining order to a temporary injunction and enlarged the parameters of the receivership. The appeal perfected before entry of this order was from an order appointing a temporary receiver. The appeal from such an interlocutory order is authorized by Tex. Rev.Civ.Stat.Ann. art. 2250 (1971). The appeal does not have the effect of suspending the order unless it is so ordered by the court entering the order. Rule 385(d), T.R.C.P. The execution of the order may be suspended, however, when a party complies with the terms of Rule 364, T.R.C.P. In the absence of a supersedeas bond, the trial court retains the right to modify an order appointing a receiver pending the appeal. The appellants here did not file a supersedeas bond. When the appeal was perfected from the order appointing the receiver, the trial court retained the right to administer the property through the receiver and could make new interlocutory orders, and change or amend existing ones appertaining to the receivership. This continuing jurisdiction is qualified by the requirement that such new orders must, in the opinion of the court, be necessary to preserve the property or the rights of the parties. Shell Petroleum Corporation v. Grays, 87 S.W.2d 289, 291 (Tex. Civ.App. — Waco 1935, writ dismissed at 131 Tex. 515, 114 S.W.2d 869).

We find that the record before this Court as reflected in the findings enumerated above justifies the action of the trial court in modifying the receivership order. There is some evidence of intermingling of corporate and private funds. The insurance policies covering the corporate assets were allowed to lapse. It therefore appears that the order of receivership as modified was necessary to preserve the property or the rights of the parties. Shell Petroleum Corporation v. Grays, supra.

Appellants further contend in point four that the order of May 29 is fatally defective because it accomplishes the purpose of the lawsuit, citing Parr v. First State Bank of San Diego, 507 S.W.2d 579 (Tex.Civ.App. — San Antonio 1974, no writ). We cannot agree. The purpose of the lawsuit is to enforce the provisions of the Proprietary School Act, but more specifically, to secure payment of the refunds alleged to be due and owing. The court has ordered the receiver to determine the amount of refunds due and then seek permission of the court to liquidate assets and begin paying refunds. The object of the suits is therefore not accomplished by this order. Appellants’ point of error four is overruled.

In point of error two the appellants direct their complaint to the temporary injunction contained in the May 29 order. They argue that it was error to enter the temporary injunction because the Administrator does not have a probable right of recovery against the personal assets of Damron or the corporation. They contend also that there is no evidence that appellants have disposed of or are likely to dissipate, secrete or dispose of any assets for less than value.

The temporary injunction of May 29 reads as follows:

“IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that Defendant, Charles E. Damron, individually and as President of Charton Corporation, his agents and employees, are hereby enjoined from:
1. Operating Valley Central College of Harlingen.
2. Dissipating, secreting, selling or disposing of for less than fair value received, any personal assets of Charles E. Damron or assets of Charton Corporation.”

To warrant the issuance of a temporary injunction the applicant need only show a probable right, and a probable injury, not that he will ultimately prevail. State v. Southwestern Bell Telephone Company, 526 S.W.2d 526, 528 (Tex.Sup.1975). As we have previously indicated, the appellants stipulated and agreed to the entry of a temporary injunction prohibiting the operation of the school in Harlingen. In our view, this is an agreement which recognizes the existence of a probable right of the Administrator to seek injunctive relief. We find, however, that the applicable law and facts of this case demonstrate a probable right on the part of the Administrator to seek injunctive relief against the assets of the corporation and the assets of Damron individually.

The Administrator is, as a public official, limited in his authority by those powers which are expressly granted by the legislature, or by those powers which may be necessarily implied from the express powers. Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex.Sup.1972). The Administrator is charged with the duty to carry out the policies of the Proprietary School Act. Tex. Educ.Code Ann. § 32.24 (1972). He is also granted express authority to seek injunctions to restrain violations of the Act. Tex. Educ.Code Ann. § 32.62 (1972). It is not disputed that the appellants have operated the school without the certificate required by § 32.31 of the Act, and have failed to conform to the refund policies prescribed by § 32.39(b)(7) of the Act. We find also evidence of the removal of equipment and possible secreting of corporation vehicles. The insurance policies on the corporate assets were cancelled for non-payment. We are of the opinion, therefore, that this and other evidence adduced at the hearings warranted the issuance of an injunction upon a finding of the trial court of probable right and probable injury. State v. Southwestern Bell Telephone Company, supra.

The appellants further contend that the order fails to state the necessary reasons for its entry as required by Rule 683, T.R.C.P. The rule requires, however, only that the order set forth the reasons why the court believes the applicant’s probable right will be endangered if the writ does not issue. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 553 (1953). The findings contained in the order are set out above. We consider these findings sufficient to satisfy the requirements of Rule 683, T.R. C.P. Appellants’ point of error two, and final point here considered, is overruled.

The judgment of the trial court is affirmed.


author: DIES, Chief Justice.

text:
    GULF STATES THEATRES OF TEXAS et al., Appellants, v. Lloyd L. HAYES et al., Appellees.
    No. 7761.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 26, 1976.
    Rehearing Denied March 25, 1976.

      Ross N. Sterling, Houston, for appellants.
    Tobolowsky & Schlinger, Dallas, James E. Chesnutt, Beaumont, for appellees.
   DIES, Chief Justice.

In January 1972 Park Plaza Theatre as landlord leased the theatre to tenant Golden Triangle Theatres, Inc., predecessor of Gulf States Theatres of Texas, Inc., for an initial term from January 1, 1972, to December 31, 1981. In August 1973 Park Plaza, as plaintiff, brought suit against Gulf States, as defendant, seeking an accounting, damages, and cancellation of the lease. In a non-jury trial, plaintiff prevailed [the parties will be referred to as they were below], from which defendant perfects this appeal but only as to the damages awarded ($2,150) and the cancellation of the lease.

The lease provided defendant was to pay plaintiff as rent for the theatre a fixed minimum annual rent of $72,000, plus a percentage rent equal to fifteen percent of the annual “net sales” in excess of $480,000.

The lease contract also had the following stipulations:

“TIME OF OPERATIONS: Tenant [defendant] shall operate its business in an efficient, highclassed, and reputable manner so as to produce the maximum amount of ‘net sales’ from the leased premises, and shall, except for reasonable periods for repairing, cleaning and decorating, or other circumstances beyond tenant’s control, keep the premises open to the public for business during tenant’s regular business hours for 365 days a year, with adequate personnel in attendance.
“TYPE OF MOTION PICTURE THE-ATRES TO BE OPERATED: Tenant especially covenants and agrees to operate the leased premises as deluxe theatres exhibiting the best motion pictures available for licensing in the City of Port Arthur on a first run basis. [Emphasis supplied.] Tenant [defendant] acknowledges that it operates other theatres in Port Arthur, Texas, but nonetheless will license the best box office pictures available for exhibition in the theatre auditoriums in the leased premises, in order to produce the highest ‘Net Sales’ [as that term is hereinafter defined].”

The trial court filed Findings of Fact and Conclusions of Law among which it found defendant had committed material breach of the lease by exhibiting certain films at the Village Theatre (another Port Arthur theatre owned by defendant) which were, at the time of exhibition, the best motion pictures for licensing in the City of Port Arthur on the first run basis. Defendant has points of error complaining of such findings and conclusions.

In determining whether there was any evidence to sustain the judgment of the trial court, the appellate court “must presume that the evidence supports not only the express findings made by the district court, but also any omitted findings which are necessary to support the judgment.” Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 — 167 (1948). If there is any evidence of probative value to support fact findings of the trial court, the Court of Civil Appeals is without authority to reverse the trial court’s judgment and render a take nothing judgment against the plaintiffs on the ground that the evidence is insufficient as a matter of law to support the fact findings. Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951). More recently, it has been restated that where there is evidence of probative force to support the trial court’s findings, such findings are binding upon the appellate court and in passing upon such questions the appellate court must consider only the evidence favorable to the findings and reject all evidence to the contrary. Waters v. Waters, 498 S.W.2d 236, 242 (Tex.Civ.App. — Tyler 1973, writ ref’d n. r. e.).

The evidence shows that for the year 1971, plaintiff (Park Plaza) had net sales of $496,791 and a net profit of $129,279. When the lease herein referred to was executed, there were three indoor screens in Port Arthur — one at the Village and the two at the Park Plaza. December 23,1973, defendant opened the Golden Triangle Theatre with three screens. November 21, 1974, defendant enlarged the Village Theatre to three screens indoors.

For the first year of the lease, the Park Plaza had 72.6 percent of the total box office gross for Port Arthur indoor theatres. For the period December 23, 1973, (when Golden Triangle was opened) until November 21, 1974, (when Village was enlarged), the Park Plaza’s share of the gross declined to 56 percent, and by May 31,1975, had declined to 47.6 percent. During this corresponding period, the theatres owned by defendant (Village and Golden Triangle) in Port Arthur rose from 27 percent of the total indoor gross to 52.4 percent. The average daily box office gross for Park Plaza went from $1,340 in 1971 to $1,288.49 in 1972, to $1,143.84 in 1973, to $839.21 by May 31, 1975.

There were seven large gross pictures shown at the Village in 1974 and 1975:

1. “Exorcist” — March 8, 1974-May 16, 1974;
2. “Trial of Billy Jack” — November 18, 1974 — December 17, 1974;
3. “Man with the Golden Gun” — December 18, 1974-January 14, 1975;
4. “Macon County Line” — June 26, 1974-August 18, 1974;
5. “Herbie Rides Again” — July 26,1974-August 15, 1974;
6. “Longest Yard” — November 27, 1974-December 19, 1974, after a one-week showing at Park Plaza; plus
7. “Godfather II” — December 12, 1974-February 4, 1975.

There is evidence that each picture would have done better at the Park Plaza, a larger and better located theatre. In the case of “Longest Yard,” a popular and large-gross picture, defendant pulled it out of the Park Plaza after a successful start and moved it to the Village. In its place, defendant showed a “re-run,” “Lieutenant Robinson Crusoe.” While there is no prohibition in this lease of defendant building or enlarging theatres in Port Arthur, clearly, we believe, the lease contemplated that the best available pictures be shown in the Park Plaza so as . to produce the maximum amount of net sales. The evidence shows that the exhibitor is aware of a film’s gross potential. So, a film’s popularity is almost never a question of “hindsight” as appellant argues.

The evidence that defendant showed the seven large-grossing pictures in the Village (where it was not obligated for the 15 percent rental) supports the findings by the trial court that defendant breached its contract with plaintiff in which defendant agreed to show the best motion pictures available in the leased premises. We also conclude, as did the trial court, that such breach was material and that the lease should be cancelled.

Defendant has points of error complaining that the court erred in awarding plaintiff $2,150 in damages. Such points of error are overruled.

The evidence would support a much higher award in damages. The testimony of one of the expert witnesses showed that Park Plaza’s gross would have increased by some $47,000 if the films shown at the Village had been shown at the Park Plaza. According to the lease between these parties the percentage of rental due plaintiff on the additional $47,000 gross would have been $4,337.85, or nearly twice the amount of damages awarded.

Defendant has other points of error complaining about additional findings and conclusions made by the trial court. Inasmuch as this court has agreed with the trial court in its findings and conclusions stated above, such additional points of error become immaterial.

AFFIRMED.


text:
    Betty Lou KEENEY et vir, Appellants, v. J. B. ODOM et al., Appellee.
    No. 7777.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 26, 1976.
    Rehearing Denied March 25, 1976.
    Curtis Collette, Houston, for appellant. John W. Lee, Houston, for appellee.
   DIES, Chief Justice.

In December 1971 plaintiff below, Betty Lou Keeney, was driving inbound on the North Freeway near Houston (Interstate 45). A wrecker driven by defendant, William J. Kemp, towing a disabled truck was also headed inbound in the same direction of travel as plaintiff. At some point near the 610 exit the truck and wrecker went out of control in front of plaintiff causing her personal injuries and damages. She sued defendant Kemp and others contending the latter’s negligence proximately caused the collision in several respects. Trial was to a jury which failed to find defendant Kemp negligent in any respect, and from which plaintiff perfects this appeal. The parties will be referred to as below.

Plaintiff has points complaining of the jury’s failure to find defendant negligent as to lookout, speed, brakes, moving from inside lane to outside, moving from outside lane to inside, as being so against the great weight and preponderance of the evidence as to be manifestly unjust. Such points direct us to the entire record which we now proceed to do. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Robert Olivo was driving on the far right hand lane, behind of, and in the same direction of, defendant. The freeway at this point has three lanes. “[W]hen he [defendant] crossed in front of me, it was in pretty good shape. But it started rocking.” It was a wrecker pulling a refrigerated truck. When Olivo first got on the freeway, defendant was on the “far left-hand side.” He then crossed in front of Olivo. “If I hadn’t slowed down, he probably would have hit me.” Olivo was driving about 45 mph. As soon as defendant crossed in front of Olivo, “I really noticed it was rocking like it wasn’t secure.” Defendant later started back (left). “[A]ll the way across again. This truck he was pulling was rocking, and it rocked to the point where it turned over. And it went over all the way to the middle esplanade, and then, that’s when I saw Mrs. Keeney’s [plaintiff’s] car coming.” There was no other traffic in front. He noticed no cars coming onto the freeway in front of him. He couldn’t see anything that would cause the wrecker to go back left because “there wasn’t anything in front of him because he wasn’t in there long enough. He just pulled right out.” Plaintiff turned into the esplanade when the truck turned over. The whole event happened in less than a minute. He (Olivo) didn’t think there was an entrance to the freeway there from which a car could pull ahead of the wrecker. “[A]s the truck was going to the left lane, it was starting to turn over. So, it fell into the lane. So that’s when ... I first caught a glimpse of her [plaintiff] as the truck started to turn over. I could tell she was trying to stop, but there was no way she could. So, she pulled over on the esplanade.”

. Plaintiff, Betty Lou Keeney, aged thirty-seven, testified she was driving in the left lane, between 11 A.M. and 12 noon on a clear day when she saw the wrecker moving from the right in front of her. It overturned “right in front of me.” Just before this, she hit her brakes. The truck was only about two feet in front of her when it overturned. She was driving approximately 60 mph. Ten minutes after the accident she was taken to Parkway Hospital. Her jaw was wired for fracture; later a cysto-scopic examination was performed and four teeth were extracted. Her jaw was dislocated; later she had disc surgery and bone fusion in the neck; even later she had back surgery.

Defendant, William J. Kemp, testified he was towing a Borden milk truck from Con-roe. It was a 16 foot body. He does not know if he saw plaintiff prior to the collision. About a mile north of the collision site he was in the extreme right lane. He was driving 40-45 mph — slow—because he was pulling a heavy vehicle which had no brakes. At “Crosstimbers” a Javelin pulled on the freeway in front of him. He hit his brakes hard. At this time he was traveling about 30 mph. His “vehicle was quite violently wrenched sideways . . . like the tail wagging of a dog.” It was his belief he lost control of his vehicle. Prior to applying the brakes, he does not believe he turned to the left. He released tjhe brakes and applied power in an attempt to stop the warping. In February 1972 he signed a statement saying, “The wrecker was a Chevrolet that was too small for the truck I was pulling.” He had told this to his employers.

After the truck turned over, he drug it a car’s length before it stopped. He had driven in the extreme right lane all the way from Conroe. He had “hazard warnings going,” was traveling at a slow rate and “would be foolish to be out in some other lane.” He never weaved in and out other lanes. He never realized there had been a collision until after he got out of the wrecker, but plaintiff struck the truck before it turned over because he examined the bumper of the truck afterwards.

This summarized evidence clearly reveals the sharp distinction between plaintiff’s and defendant’s versions of the accident. However, puzzling the question of what caused the milk truck to overturn, under our system, plaintiff had the burden of its proof, that it was caused by negligence and that this negligence was the proximate cause of her injuries. To be entitled to recover, the plaintiff must, unaided by presumption, show that the defendant was responsible for the prejudical occurrence. See authorities cited in 40 Tex. Jur.2d Negligence § 139 (1962).

Considering this evidence as a whole, we are unable to conclude that the jury’s findings were so against the great weight and preponderance of the evidence as to be manifestly unjust.

Other points complain of the jury’s failure to find that defendant Kemp loaded and towed a truck which was too heavy for his wrecker; that the trial court erred in admitting the testimony of Harold Benson regarding the maximum gross weight of the wrecker as being hearsay; that the manufacturer’s plate would have been the best evidence; that Benson’s testimony regarding the estimate weight that could have been safely towed by the wrecker was hearsay.

In “Special Issue No. 2” the jury was asked, “Do you find that on the occasion in question, William J. Kemp loaded and towed a truck which was too heavy for his wrecker?” To which, they ánswered, “No.” By instruction then they did not answer subsequent inquiries whether this constituted negligence or proximate cause. Plaintiff urges this finding “was so against the great weight and preponderance of the evidence as to be manifestly unjust.” We repeat, in determining this point, we examine the entire record. In re King’s Estate, supra.

B. J. Dryden, service manager for J. B. Odom (one of the defendants) testified he had been in the wrecker business himself, had driven wreckers, including the one involved in this wreck, a 1967 Chevrolet, one-ton; that at the time of the wreck it was towing an International 1600 milk truck; that prior to the collision in question he personally had driven that wrecker towing a similar truck many times; that he believed it (this wrecker) was proper for hauling the truck; that since the collision, he has continued to use this wrecker to haul similar trucks; that this wrecker has two extra wheels (dual wheels), heavier springs, and plated frame, which ordinary one-ton vehicles do not have. He doesn’t know what caused this truck to turn over.

Harold Benson, a Mechanical Engineer, a member of the Society of Automotive Engineers, examined the wrecker and truck involved and testified the load and towing of this milk truck would not have caused the wrecker to exceed its maximum gross vehicle weight [the amount the wrecker can weigh in addition to whatever payload it is carrying.] — as recommended by the manufacturer — or significantly change the handling characteristics of that wrecker.

So, here, clearly, the jury had evidence from which they could draw a reasonable inference that the plaintiff had not proved that the wrecker was overloaded at the time of the accident. See Gaitan v. Reyes

Salvatierra, 485 S.W.2d 602, 604 (Tex.Civ. App. — San Antonio 1972, no writ). These points are overruled. Having reviewed the record carefully, we are of the opinion that these findings of the jury are not clearly wrong or manifestly unjust.

The remaining points concern the testimony of Harold Benson.

As noted earlier, Benson defined the maximum gross weight as the amount the wrecker can weigh in addition to whatever payload it is carrying. He obtained this from a metal plate on the truck put there by the manufacturer. Plaintiff insists this is hearsay, and the plate itself would be the best evidence of this information. We disagree. This plate attached to the wrecker we regard as a marking on a chattel. See United States v. Duffy, 454 F.2d 809 (5th Cir. 1972). See also, Kansas Pac. Ry. v. Miller, 2 Colo. 442 (1874).

“ ‘If a sign were painted on a house, it would hardly be contended that the house would have to be produced, nor can it be said that the law converts the courtroom into a receptacle for wagons, boxes, tomb-stones.’ ” (Taken from Appellee’s Brief.)

Furthermore, to have removed this plate from the wrecker would probably contravene statutory law. Tex.Rev.Civ.Stat. art. 6687-1 § 49(c)(1) (Supp.1975 — 1976). Furthermore, the evidence was merely cumulative of other evidence in the record, and its admission was in this instance harmless error under Tex.R.Civ.P. 434.

All points are overruled.

The judgment of the trial court is AFFIRMED.


author: KEITH, Justice.

text:
    TEXAS CITY et al., Appellants, v. COMMUNITY PUBLIC SERVICE COMPANY, Appellee.
    No. 7781.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 26, 1976.
    Rehearing Denied March 25, 1976.
    As Revised March 25, 1976.

      William A. Olson, Houston, for appellants.
    John Shirley, Texas City, for appellee.
   KEITH, Justice.

This is an appeal from an order granting a temporary injunction restraining the appellants from enforcing their respective ordinances fixing the rates which appellee may charge to consumers of electricity in such cities. The appellants are City of Texas City, City of LaMarque, and City of Angleton, all existing and functioning under charters adopted pursuant to the provisions of Tex.Const. art. XI, § 5, and Title 28, Chapter 13, Tex.Rev.Civ.Stat.Ann. arts. 1165-1182 (1963). Thus, each of the appellants is a home rule city under the constitution and laws of the State of Texas.

Appellee is a privately owned public utility furnishing electric power to the citizens and industries in the several cities pursuant to franchises duly and legally granted by each of the cities. Its rates are fixed by ordinances of the several cities.

Appellee made application to each of the cities for a rate increase but the entire amount sought was denied in each instance and appellee brought this suit seeking relief from what it contended to be rates so unreasonably low that the enforcement of such ordinances would result in' confiscation of its property.

After a lengthy hearing, the trial court granted the relief sought by appellee by granting a temporary injunction prohibiting the enforcement of certain rate ordinances by the respective cities. Appellee was required to, and did, file a bond whereby it obligated itself to refund any money collected from the consumers of electricity to which it was not entitled under the final judgment to be rendered in said cause. This order was entered on June 26, 1975, and appellants immediately perfected their appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas and, by order of the Supreme Court equalizing the dockets of the several courts of civil appeals, was transferred to this court for determination.

Upon oral submission of the cause, the Court, sua sponte, raised the question of mootness since interrogation of counsel revealed that the cause had been tried upon the merits and a final judgment had been entered in the trial'court. We granted the parties leave to file post-submission briefs confined to the issue of mootness.

Since the question of mootness goes to the jurisdiction of this court, we directed our clerk to procure a certified copy of the final judgment from the clerk of the trial court under the provisions of Tex.R.Civ.P. 406.

The final judgment in the basic cause was entered on January 9,1976, and discloses that the cause was tried to a jury which returned a verdict adverse to the contentions of the appellee; that the trial court overruled appellee’s motion for judgment non obstante veredicto and granted appellants’ motion for judgment on the verdict. The final judgment ordered:

(1) “[Tjhat Plaintiff [appellee herein] take nothing by its suit and that the permanent injunction prayed for by COMMUNITY PUBLIC SERVICE COMPANY ... be, and it is hereby, in all things refused and denied”; and,
(2) “[T]hat the Writ of Temporary Injunction heretofore issued in this cause on June 26, 1975, be, and it is hereby, in all things dissolved, set aside, and declared to be of no further force or effect.”

We are of the opinion that the appeal from the order granting the temporary injunction is moot and should be vacated and

the cause of action seeking temporary in-junctive relief should be dismissed for the reasons now to be stated.

The late Justice Norvell, while upon the San Antonio court, wrote in City of Corpus Christi v. Cartwright, 281 S.W .2d 343, 344 (Tex.Civ.App. — San Antonio 1955, no writ):

“A temporary injunction remains in force only until a final decree is rendered by the district court. Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14; Ex parte Zuccaro, 106 Tex. 197,163 S.W. 579; Morgan v. Smart, Tex.Civ.App., 88 S.W.2d 769. After a final judgment has been rendered by the district court and an appeal perfected to this Court, the case enters a different phase and under certain circumstances a trial judge may enter a stay order pending appeal or, under extraordinary circumstances when it is necessary to preserve our jurisdiction, we may enter an original order under authority of Article 1823, Vernon’s Ann.Tex.Stats.”

The rule was expressed in Conway v. Irick, 429 S.W.2d 648, 650 (Tex.Civ.App.— Port Worth 1968, writ ref’d), in this language:

“The temporary injunction expired when the final judgment was entered. No temporary injunction now exists; hence the appeal from the order issuing it has become moot.”

In dictum, the court in Magnolia Petroleum Co. v. Blankenship, 70 S.W.2d 258, 259 (Tex.Civ.App. — Austin 1934, no writ), said:

“If the case had been tried upon its merits pending this appeal, and a permanent injunction denied, such denial would without question have terminated the temporary injunction and rendered that issue in this court moot.”

In Rhoton v. Texas Land & Mortgage Co., 80 S.W.2d 763, 770 (Tex.Civ.App.— Eastland 1935, writ ref’d), the rule was said to be:

“If, while an appeal is pending from an order granting a temporary injunction, the case is tried upon its merits and a permanent injunction denied, such denial terminates the temporary injunction and renders that issue in the appellate court moot.”

See also: Ralston v. Ralston, 476 S.W.2d 775, 778 (Tex.Civ.App. — Beaumont 1972, no writ); Bryant v. Barnes, 438 S.W.2d 435 (Tex.Civ.App. — Waco 1968, no writ). Cf. McMurrey v. McMurrey, 168 S.W.2d 944, 945 (Tex.Civ.App. — Fort Worth 1943, no writ).

Appellee argued upon submission of the cause that since the temporary injunction provided that it would remain in effect “pending a final hearing and determination of this cause,” it is still a viable order because the judgment on the merits is not final. In support of this argument counsel stated that it would duly perfect an appeal from such final judgment and would seek the entry of an order setting the amount and conditions of a supersedeas bond to suspend the operative effect of the final judgment pending its appeal therefrom. We accept the factual statements of counsel as correctly reflecting appellee’s course of future conduct; but, this in no manner alters the result which we reach. The trial court may afford appellee whatever relief it may show itself entitled to under the record so made in such court. City of Corpus Christi v. Cartwright, supra. See also, 43 C.J.S. Injunctions § 244, p. 984 (1945).

The only purpose of a temporary injunction is the “preservation of the status quo of the subject matter of the suit pending a final trial of the case on the merits.”

Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552 (1953). There has been a trial on the merits and the order granting the temporary injunction now before us has been set aside and the permanent injunction denied.

Tex Civ App 76-281 — 2

An appeal from the final judgment will be to one of the courts of civil appeals sitting in Houston (either the 1st or 14th Districts) and will not, except in unusual circumstances, reach this particular court of civil appeals. We are asked to pass upon intricate and complicated points of evidence, substantive law, as well as constitutional questions of due process in an appeal from the granting of a temporary injunction. The time and place for consideration and determination of the respective rights of the parties is in the appellate court having the entire record made at the hearing upon the merits. See Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460, 464 (1952), wherein Chief Justice Hickman, speaking for the Court, held:

“This being an interlocutory proceeding, our holding will be ignored if and when this case is tried on its merits. Counsel have ably briefed important questions of labor law, but we cannot decide them finally in this proceeding. If questions of that character are to be decided by the appellate courts, the parties should first try their cases on the merits and appeal from the order of the trial court granting or refusing a permanent injunction.”

We are not unaware of the decision of Dallas Cowboys Football Club, Inc. v. Harris, 348 S.W.2d 37, 40 (Tex.Ciy.App. — Dallas 1961, no writ). Being of the opinion that the authorities herein considered are dispositive of the question, to the extent that Harris may be contrary to the holding herein, we decline to follow it.

Accordingly, having determined that the cause is moot, the order of the trial court granting the temporary injunction is vacated and set aside, and the cause, insofar as it relates to the matter of a temporary injunction, is dismissed. Cf. Zuniga v. U. S. Investors, Inc., 453 S.W.2d 811 (Tex.1970). This action is taken without prejudice to the rights of the parties in their appeal from the final judgment and we express no opinion upon the merit, or lack thereof, of the contentions advanced upon this appeal.

Pursuant to Tex.R.Civ.P. 448, all costs are adjudged against appellee.

The order granting the temporary injunction is vacated and the proceeding, insofar as it seeks a temporary injunction, is dismissed, without prejudice to the rights of the parties as set forth in the final judgment.

      . The same court, explaining one of its other prior decisions, in Texas Liquor Control Board v. Jones, 378 S.W.2d 898, 902 (Tex. Civ.App. — Austin 1964, orig. proceedings), said: “The opinion [in the prior case which it was discussing] does not reflect that a final judgment on the merits had been rendered by the Trial Court before our decision was announced. If such fact had been made known to this Court we undoubtedly would have done what Courts usually take relish in doing and would have dismissed the appeal from the order refusing the temporary injunction as moot.”


author: MOORE, Justice.

text:
    Warren PINNEY, Jr., Appellant, v. Keith E. COOK, Appellee.
    No. 911.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 26, 1976.

      Robert M. Roller, Coke & Coke, Dallas, House, Mercer, House, Brock & Wilson, San Antonio, for appellant.
    J. G. Adami, Perkins, Davis, Oden & War-burton, Alice, for appellee.
   MOORE, Justice.

This is an appeal from an order overruling the defendant’s plea of privilege.

Plaintiff, Keith E. Cook, instituted suit in the District Court of Duval County, Texas, alleging that the defendant’s servants, agents and employees negligently caused a truck to collide with a herd of cattle owned by the plaintiff, resulting in the death of one cow and injury of another. Plaintiff further alleged that because of this incident, he became fearful defendant’s employees would again injure his cattle and therefore moved his cattle out of the pasture, thereby sustaining damages by reason of the loss of the use of the pasture. Defendant, Warren Pinney, Jr., filed his plea of privilege to be sued in Dallas County, the county of his residence. Plaintiff duly filed a controverting plea alleging that the agents, servants and employees of Pinney were guilty of negligence and that such negligence occurred in Duval County. Plaintiff alleged in his controverting plea that venue was properly laid in Duval County by reason of Subdivision 9a, Article 1995, Tex.Rev.Civ.Stat.Ann., which provides that in a suit based upon negligence, suit may be brought in the county where the negligence occurred. After a trial before the court, sitting without a jury, the trial court overruled the plea of privilege and defendant, Warren Pinney, Jr., perfected this appeal.

By his first point of error defendant urges that the trial court erred in overruling his plea of privilege in that there was no evidence that an act or omission of negligence was committed in Duval County, Texas, proximately causing injury to the plaintiff. As we view the record, appellant’s contention must be sustained.

The evidence consists solely of the testimony of the plaintiff. He testified that the defendant, Pinney, maintained certain oil and gas production facilities on his pasture consisting of an oil line and several oil storage tanks; that some time prior to the incident in question, he and Pinney agreed that if Pinney would move his oil tanks, plaintiff would allow him to connect his oil pipeline with that of the plaintiff; that on July 29, 1974, he drove to his pasture and observed what appeared to be the top of a pickup truck situated in his pasture approximately 1,000 yards away with a large number of cattle gathered around it; that he thought he heard some type of an explosion and then observed the cattle scatter away from the vehicle. He testified that the vehicle left and came back up the road in the direction in which he was traveling; that he stopped and talked with the men in the truck and they told him that they had just finished tieing in the oil line for Pin-ney. He testified that he later found that several of his cattle had been injured on their legs at a point about bumper high and that one of the cows ultimately died as a result of the injury. He testified that on the day following the incident he became fearful that the employees of Pinney, when they returned to remove their oil tanks, would cause further injury to his cattle and as a result he moved his cattle to another pasture and thereby lost the use of the pasture from August, 1974, to February, 1975. He further testified that he was compelled to overgraze the remainder of his pasture land causing damages to the grass.

Plaintiff alleged in his petition that the defendant’s agents and employees were guilty of negligence proximately causing injury to his cattle in that (1) the driver of the truck operated the truck at an excessive rate of speed, (2) failed to make proper application of his brakes, (3) failed to have the vehicle under proper control, (4) failed to sound his horn, (5) failed to yield the right of way, and (6) failed to keep a proper lookout. In his controverting plea, plaintiff specifically alleged as follows: “The allegations of Plaintiff’s Petition show and aver and it is a fact, that the Defendant, his agents, servants or employees were negligent, within the meaning of Exception 9a to Article 1995 . . ., and that such negligence occurred in Duval County, Texas, such negligence being the proximate cause of Plaintiff’s damages to livestock and pasture grasses situated in Duval County, Texas.”

Under the provisions of Subdivision 9a of Article 1995, the venue facts necessary for the plaintiff to establish by a preponderance of the evidence in order to sustain venue in the county other than the county of defendant’s residence are: (1) that an act or omission of negligence occurred in the county where the suit was filed, (2) that such act or omission was that of the defendant in person or that of his servant, agents or representatives, acting within the scope of his employment, and (3) that such negligence was a proximate cause of the plaintiff’s injuries. Reynolds & Huff v. White, 378 S.W.2d 923 (Tex.Civ.App.— Tyler 1964, n. w. h.); Calhoun v. Padgett, 409 S.W.2d 890 (Tex.Civ.App. — Tyler 1966, n. w. h.). In Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935), the Supreme Court of this State laid down the rule that the plaintiff must plead and prove the venue facts required by the applicable subdivision of Article 1995, supra, and further he must plead and prove such facts just as any other litigant, who, in a hearing or trial, had the burden of proving a fact.

As we view the record, the plaintiff wholly failed to prove by a preponderance of the evidence that the defendant committed any act of negligence in Duval County which was a proximate cause of the damage or injury complained of by the plaintiff. Nowhere in plaintiff’s testimony did he testify that he actually saw the truck strike the cattle. According to his testimony, he heard what he thought was an explosion and saw the cattle scatter. As we understand his testimony, the truck did not move forward until after the cattle had scattered. He admits that he was 1,000 yards away at the time of the incident and could only see the top of the truck. There is nothing in the plaintiff’s testimony, insofar as we have been able to find, that would constitute direct evidence tending to establish any of the various acts of negligence alleged in his petition. Moreover, there is nothing in his testimony tending to establish whether the injury to the cattle was caused by the truck or was caused by the explosion. Venue may not be established by implication. The occurrence of an accident is not evidence of negligence. Calhoun v. Padgett, supra; Reynolds & Huff v. White, supra. At most, plaintiff’s testimony shows only the occurrence of an incident.

We are not in accord with plaintiff’s contention that the judgment may be sustained on the basis of circumstantial evidence. Where circumstantial evidence is relied upon, the evidence must be such as to make the truth of the fact proposition inferred more likely than not, because if an inference consistent with the existence of a fact in issue is but equally as valid as an inference of its nonexistence, then the evidence is insufficient to raise an issue of fact. There must be evidence to support the conclusion that the inference of the particular fact is the more reasonable. Texas Pac. Fidelity & Surety Company v. Hall, 101 S.W.2d 1050 (Tex.Civ.App. — East-land 1937, writ dism’d); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Webb v. Karsten, 308 S.W.2d 114 (Tex.Civ.App — Houston 1957, no writ); 3 McDonald Texas Civil Practice, sec. 11.28.3,1970, rev. ed. As we view the record, none of the various acts of negligence alleged by the plaintiff can be inferred from the meager facts found in the plaintiff’s testimony.

Plaintiff further argues that venue is properly laid in Duval County on the theory that he established a cause of action for damages for the loss of the use of his pasture and damages resulting from the overgrazing of other pastures. In this connection, he argues that because of the negligence of defendant’s agents and employees in causing injuries to his cattle, he was compelled to move his cattle out of the pasture into another pasture in order to prevent further injury. While his theory of recovery in this respect is unclear, he seems to argue that such negligence was a proximate cause of the loss and use of the pasture and the overgrazing of other pastures. The contention is without merit and must therefore be overruled.

As heretofore pointed out, plaintiff failed to establish negligence on the part of defendant’s agents or employees. In the absence of any evidence showing negligence on the part of the defendant, which, as we understand it was the basis for his cause of action in this regard, no cause of action could arise in favor of the plaintiff for damages in this respect. Moreover, it occurs to us even if plaintiff had established negligence, such negligence could not have been a proximate cause of the loss of the use of his pasture or damages to other pasture land. In order to establish that the breach of duty was a proximate cause of the injury, it is well settled that such a result or some similar one should have been reasonably foreseeable. Certainly, under the facts here, a person of ordinary prudence, situated as the defendant, could not have reasonably foreseen that because of the injury to the cattle on one occasion, plaintiff would become so apprehensive about the welfare of his cattle that he would take them out of the pasture and overgraze his other pastures.

In view of the conclusions that plaintiff failed to establish a cause of action for negligence, we do not reach the remaining points brought forward by the defendant.

Accordingly, the judgment of the trial court is reversed and it is ordered that the cause be transferred to the District Court of Dallas County, Texas.