author: COULSON, Justice.

text:
    The CITY OF BAYTOWN, Texas, Appellant-Appellee, v. Janet E. TOWNSEND, as next friend of Yancy Zimbalist Alfred, Appellee-Appellant.
    No. 1447.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 9, 1977.
    Rehearing Denied April 6, 1977.

      Neel Richardson, City Atty., Scott Bounds, Asst. City Atty., Baytown, Michael G. Terry, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellant-appellee.
    Glenn Vickery, Vickery & Matthews, Ben A. Ramey, Houston, for appellee-appellant.
   COULSON, Justice.

This is a personal injury suit.

Yancy Zimbalist Alfred, a minor, as plaintiff, acting through his mother, Janet E. Townsend, as his next friend, brought suit against the City of Baytown, as defendant, under the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19 (Supp. 1976-77). Alfred’s left arm was severely lacerated on a bolt protruding from a net post on a tennis court which was constructed and maintained by the City. Trial was to a jury which found that Alfred was injured as a result of the negligence of the City and assessed total damages in the amount of $15,000. The trial court ordered a remittitur of $5,375 and entered judgment for Alfred against the City for $9,625. Alfred appeals the trial court’s action in requiring a remittitur and the City appeals the merits of the case. We affirm the judgment of the trial court in all respects.

The tennis facilities were constructed by the City pursuant to an agreement between the City of Baytown and the Goose Creek Independent School District to provide for a park-playground to be used jointly by the City and by the School District as authorized by Tex.Rev.Civ.Stat.Ann. art. 6081t (1970). The park-playground was located at Travis Elementary School on land owned by the School District;' the park-playground improvements including, but not limited to the tennis courts, were constructed, owned and maintained by the City. The tennis courts were completed in 1969. On February 15,1972, during the school lunch period, Alfred was playing tag with a classmate on the playground. The classmate, being chased by Alfred, fell down on the tennis court and Alfred jumped over him and brushed against the net post on the tennis court. Alfred’s left arm was severely lacerated when impaled on a threaded bolt one-half inch in diameter which protruded two to three inches from the net post. Alfred’s wound required ninety-seven stitches to close. The injury healed slowly and left a hypertrophic scar approximately one inch wide and four and one-half inches long. Some contracture of the elbow joint had occurred at the time of trial. Increased contracture in the future is a medical probability. A plastic surgeon testified that Alfred’s injury would require surgery for medical and cosmetic reasons, but that the surgery could not be performed effectively until Alfred attained physical maturity in approximately five years.

Leon Legler, principal of Travis Elementary School, testified to the condition of the net posts on the tennis courts at the time Alfred was injured. Legler referred to the offending bolt as being a portion of a “turnbuckle” used to raise and lower the tennis net. A diagram of the device which caused the injury to Alfred was drawn by Legler on a blackboard which was exhibited to the trial judge and jury. That diagram was not preserved in the record, and we cannot deduce from the statement of facts the exact nature of the device. A part of the device was the bolt which protruded two to three inches from the outside of the net post. It is. undisputed that Alfred was injured when he inadvertently brushed against the net post and ran into the protruding bolt. Mr. Legler was unable to testify as to the period of time the bolt had been exposed in the manner that existed on February 15, 1972. Inasmuch as the trial court and jury had the benefit of important evidence not preserved in the record, this court is confronted with the review of an incomplete statement of facts. We must presume that there was evidence to support the jury’s findings when we are confronted with an incomplete statement of facts. Young v. Stafford, 497 S.W.2d 76, 78 (Tex. Civ.App.-Houston [14th Dist.] 1973, no writ).

The Texas Tort Claims Act provides a broad waiver of sovereign immunity, which is "then narrowed by a list of exceptions. “The result is essentially waiver in three general areas: use of publicly owned automobiles, premise defects, and injuries arising out of conditions or use of property.” Greenhill and Murto, Governmental Immunity, 49 Texas L.Rev. 462, 468 (1971). The broad waiver provision of section 3 of the Act imposes liability on the state for death or personal injuries caused “from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state.” Tex. Rev.Civ.Stat.Ann. art. 6252-19, § 3 (Supp. 1976-77). A major limitation on government liability results from the exclusion in section 18(b), which provides that, as to premise defects, the government owes a claimant only that duty owed by private persons to a licensee on private property.

The essence of the City’s appeal is that the protruding bolt, if defective, was a premise defect, and therefore no duty was owed by the City to Alfred under the circumstances. The City relies on the supreme court decision in State v. Tennison, 509 S.W.2d 560 (Tex.Sup.1974). Tennison was a slip and fall case which arose from the negligent waxing of the floor in a state building at Camp Mabry. Tennison was a premise defect case, and, under section 18(b) of the Tort Claims Act, the state owed Mrs. Tennison only that duty owed by private persons to a licensee. The supreme court held that as to a premise defect, the state must have actual knowledge of the defect or danger to the plaintiff and must be negligent in acting or failing to act to correct the condition or to warn the plaintiff of the danger.

The pleadings of neither Alfred nor the City reflect that this suit was prosecuted or defended on a premise defect theory. There is no allegation nor finding that the protruding bolt was a “premise defect.” Therefore, section 18(b) and the Tennison case are inapplicable to the case at bar. Torres v. State, 476 S.W.2d 846, 848 (Tex.Civ.App.-Austin 1972, writ ref’d n. r. e.).

The protruding bolt which injured the boy was a simple machine; a mechanical device used to raise and lower the tennis net. It was tangible property, built and maintained by the City, that was in a defective and dangerous condition at the time of the incident made the basis of this suit. The City denies liability on the grounds that no evidence was introduced which showed that the City or any of its agents created or maintained this mechanical device in its dangerous and defective condition; i. e., the mechanism was not designed or installed in a defective manner and unknown persons at unknown times could have negligently adjusted the tennis nets to cause the bolt to protrude. However, there is no evidence in the record that the adjusting mechanism was not defective and dangerous when it was originally installed on the tennis courts. In the absence of evidence to the contrary, we cannot presume that this device was ever in a condition different from that found by the school principal the day of the accident. In reply to the plaintiff’s request for admissions, the City admitted that it paid to have the tennis courts built and maintained. The plaintiff pleaded and proved that the City of Baytown, through its agents and employees, built and maintained an inherently dangerous mechanism on the tennis courts. The City defended on the grounds that this device was an open and obvious hazard and Alfred was contributorily negligent in causing the accident. There is no evidence that Alfred was misbehaving or was not playing in a proper area of the playground at the time of the accident. The jury found the City negligent and absolved Alfred of contributory negligence. There is ample evidence in the record to support both findings.

This case is governed by the decisions in Lowe v. Texas Tech. Univ., 540 S.W.2d 297 (Tex.Sup.1976); Mokry v. Univ. of Texas Health Science Center at Dallas, 529 S.W.2d 802 (Tex.Civ.App.-Dallas 1975, writ ref’d n. r. e.); and McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App.-Tyler), writ ref'd n. r. e. per curiam, 518 S.W.2d 528 (Tex.Sup.1975). In McGuire, the plaintiff sued a city operated hospital for injuries sustained when he fell out of a bed not equipped with bedrails. McGuire claimed his case was governed by the broad waiver of immunity in section 3 of the Act. In its per curiam opinion, the supreme court expressly held that McGuire’s petition stated a cause of action under the Act.

We believe that injuries proximately caused by negligently providing a bed without bed rails are proximately caused from some condition or some use of tangible property under circumstances where a private person would be liable. Therefore, if the Hospital is found negligent in providing a bed without guard rails, it may not assert governmental immunity to avoid liability . . . . 518 S.W.2d at 529.

In Mokry, the plaintiff sued the University of Texas Health Science Center for the loss of an eyeball which was washed down a drain in the process of a pathological examination to determine whether the eye was cancerous. The court of civil appeals held that Mokry’s allegations that he suffered personal injuries as a result of the negligence of employees of the State in the use of tangible property owned by the State at the Health Science Center recited a valid cause of action under the Tort Claims Act.

The language of the Mokry and McGuire opinions was expressly approved by the supreme court in Lowe v. Texas Tech Univ., supra. Lowe alleged that he sustained permanent injuries while playing varsity football for Texas Tech. He alleged that coaches and trainers of the Texas Tech football team were negligent in several respects; one of which was furnishing equipment, uniforms, and pads which were defective. The supreme court held that Texas Tech would not be immune from liability if it furnished defective equipment or failed to furnish sufficient protective equipment to Lowe.

As to the first, we hold that the affirmative allegation of furnishing defective equipment to Lowe states a case within the statutory waiver of immunity arising from some condition or some use of tangible property. It is further apparent that a failure to furnish proper protective equipment for Lowe’s injured knee, if such was the case, is not distinguishable, in so far as the problem at hand is concerned, from the failure to provide bed rails for a hospital bed in McGuire, or from the failure to provide protective items of laboratory equipment in Mokry. So we also hold that Lowe’s allegations of a negligent failure to furnish him proper protective items of personal property, to be used as a part of the uniform furnished him, bring his case within the statutory waiver of immunity arising from some condition or some use of personal property. 540 S.W.2d at 300.

The simple mechanical device used to adjust the tennis nets in this case is legally indistinguishable from the hospital bed in McGuire, the laboratory equipment in Mokry, and the football uniform in Lowe. Each case arose from some condition or some use of tangible real or personal property, for which the State of Texas and its subdivisions are liable under the Tort Claims Act.

The City contends that the trial court erred in submitting the case to the jury under an ordinary negligence charge because the City’s duty to plaintiff, if any, is limited by section 18(b) of article 6252-19 to that duty owed by private persons to a licensee. See Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455 (Tex.Sup.1972). This charge would have been improper had the plaintiffs alleged that the injuries were caused by a premise defect. However, section 18(b) of the Act limits the duty owed to plaintiffs only if a premise defect is involved. Torres v. State, 476 S.W.2d 846, 848 (Tex.Civ.App.-Austin 1972, writ ref’d n. r. e.). Therefore, an ordinary negligence charge was proper under the circumstances.

The City further contends that the trial court erred in submitting an ordinary negligence charge because it is global and fails to require plaintiff to prove a prima facie premise defect case. As discussed earlier, this presumes that the plaintiff grounded his suit on a premise defect theory, which he did not. Moreover, the trial court has considerable discretion in determining which issues are proper in submission of its charge. Tex.R.Civ.P. 277. The special issue submitted by the trial court is as follows:

“Special Issue no. 1”
“Whose negligence, if any, do you find from a preponderance of the evidence proximately caused the incident made the basis of this suit?”
Answer (a) The defendant CITY OF BAYTOWN, Texas
Answer
(b) The plaintiff, YANCY ALFRED;
Answer
(c) Both”.

To which the jury answered:

“(a) The defendant, CITY OF BAY-TOWN, Texas.”

This form of special issue submission was expressly approved in Members Mutual Ins. Co. v. Muckelroy, 523 S.W.2d 77, 82 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref’d n. r. e.). The plaintiff did not ground his suit on a premise defect, and the submission of the ordinary negligence charge in this form was within the discretion of the trial court.

The City alleges that the trial court committed fundamental error because its judgment contravenes the legislature’s express intent to limit governmental liability for injuries arising from the use of school premises by children. Similarly, the City alleges fundamental error because the trial court’s judgment effectively contravenes the legislature’s express intent to allow schools and cities to jointly establish, maintain, construct, and operate park facilities.

“[A]n error which directly and adversely affects the interest of the public generally, as that interest is declared in the statutes or Constitution of this state, is a fundamental error.” Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 983 (Tex.Sup.1947); See Hatchell and Calvert, Some Problems of Supreme Court Review, 6 St. Mary’s L.J. 303, 307 (1974); Hodges, Preparation for Appellate Complaint, 12 Hous.L. Rev. 799, 816 (1975). This court is aware of the special treatment afforded school districts under the Tort Claims Act.

Perhaps the most significant concession was that achieved by the school districts, whose liability was limited to motor vehicles. Since the use of school premises by children is, of course, extensive, this provision creates a large exception to the Act’s general elimination of governmental immunity for premise defects. Greenhill and Murto, Governmental Immunity, 49 Texas L.Rev. 462, 468 (1971).

The City correctly asserts that this plaintiff should not be permitted to circumvent the Act and thereby obtain relief which the legislature has specifically denied. Torres v. State, 476 S.W.2d 846, 849 (Tex.Civ.App.-Austin 1972, writ ref’d n. r. e.); Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 19A (Supp. 1976-77).

However, the present controversy is clearly distinguishable from the Torres case. The injury in Torres was allegedly caused by the negligence of personnel at the Texas School for the Blind. The plaintiff in Torres sued the Central Education Agency and the State instead of the School District in order to avoid the operation of section 19A, and that attempt to eircum-vent the statutory exclusion was rejected. Alfred has not attempted to defeat the legislative purpose behind section 19A. The City built and maintained the tennis courts where the injury occurred and was, therefore, the party responsible for the injuries inflicted by this defective mechanical device. Imposing liability on the City of Bay-town for injuries caused by the defective design and maintenance of its property does not erode the broad immunity retained by school districts under the Act.

We also reject the City’s contention that imposing liability under these circumstances undermines the legislative intent to encourage schools and cities to jointly operate recreational facilities. Tex.Rev.Civ.Stat. Ann. art. 6081t (1970). Presumably, cities and school districts both benefit from the joint operation of recreational facilities, since the duplicitous expenditure of public funds is minimized. The City would have been liable had this accident occurred on a tennis court on land owned by the City of Baytown. We find no legislative intent to decrease the liability of municipalities, which is the practical effect of construing article 6Q81t together with the school district exclusion of section 19A of article 6252-19, as urged by City.

Alfred complains of the remittitur of $5,375 in medical expenses ordered by the trial court. In reviewing the propriety of the lower court’s remittitur order, this court must apply the strict standard of whether the trial court abused its discretion. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, 840 (Tex.Sup.1959).

The doctor could not testify with certainty whether one, two, or three operations would be necessary to complete plastic surgery on Alfred. There was sufficient evidence for the jury to conclude that two, and only two, operations would in reasonable medical probability be necessary. The doctor testified in terms of ranges of expenses that would be incurred by Alfred as a result of the two operations. Allowing the maximum expenditure and hospital stay that the doctor suggested for each operation, the total medical expenses to be incurred were $2,625. There was no evidence of probative value that would indicate what the expenses would be for these operations at the time that they were to be performed. The jury awarded $8,000 for future medical expenses. The trial court ordered a remitti-tur of $5,375, which allowed the plaintiff the maximum award supported by the record. With the exception of a casual reference by the doctor to the escalating costs of medical care, the $8,000 jury award was based on mere conjecture. In light of the whole record, we cannot find that the trial court abused its discretion in ordering the remittitur.

All points of error and all counterpoints have been considered and are overruled.

Affirmed.


source: Caselaw Access Project

author: OSBORN, Justice.

license: Public Domain

text:
    EL PASO NATIONAL BANK, Appellant, v. SOUTHWEST NUMISMATIC INVESTMENT GROUP, LTD., Appellee.
    No. 6556.
    Court of Civil Appeals of Texas, El Paso.
    March 9, 1977.
    Rehearing Denied April 13, 1977.

      Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, J. Malcolm Harris, W. Dean Hester, El Paso, for appellant.
    Mayfield, Broaddus & Perrenot, Francis C. Broaddus, Jr., El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case arises from a suit brought by a bank against a depositor to recover the amount by which its checking account had become overdrawn. Although the depositor admitted liability on the check which caused the account to be overdrawn, it urged certain defenses which the trial Court, based on jury findings, concluded barred recovery by the Bank. The Bank appeals from a take nothing judgment. The depositor filed a cross-action seeking affirmative relief for its losses in transactions in which the Bank was involved, but, based on jury findings, it was denied any recovery. It makes no appeal.

This litigation arises from transactions involving El Paso Coin Company, Inc. (hereinafter called “Coin Company”), Southwest Numismatic Investment Group, Ltd. (hereinafter called “Southwest”), and El Paso National Bank (hereinafter called “Bank”). The Coin Company is a corporation with a paid-in capital of $6,727.50, and whose principal stockholder is Renato Ruiz. Dealing primarily in gold bullion coins, at the time of its collapse in September, 1974, the Company’s volume of sales was $8,000,000.00 per month. It is now bankrupt. Southwest is a limited partnership composed of 86 partners and having a paid-in capital of $764,-000.00. Renato Ruiz was a general partner, although William P. Hooten served as managing partner since early 1973.

Both parties had accounts at the Bank and maintained offices in the Bank building. The parties’ accounts were supervised by Harold Browning, a Senior Vice President for the Bank. In 1974, the Bank received and paid more than 2,000 insufficient funds checks drawn on the Coin Company account. Of course, deposits were being made continually to cover such checks and during the last three months of operation the account was actually overdrawn only 3 days in July, 4 days in August, and 10 days in September when the Company collapsed and business terminated. On September 19th, the account had a balance of $11,-538.97, but by September 25th it was overdrawn by $644,552.34. Ultimately, the overdrafts went to $1,224,767.64. Its Statement of Account on September 30th shows a $700,000.00 credit for inventory received by the Bank, leaving the account overdrawn in the amount of $524,767.74.

A substantial portion of the business of Southwest was with the Coin Company. Because of the rising market in gold coins, those who were dealing in the coin business often would never receive delivery of their coins before they would be resold. For some time prior to the Coin Company’s collapse, bulk purchases of bullion were handled by bank-to-bank shipments, so that coins were delivered to the Bank’s collection department and held by it until they were redeemed by payment therefor by the Coin Company to the Bank. When Southwest purchased coins from the Coin Company, it was necessary for Southwest to pay for the coins in advance, then the funds were deposited to the Coin Company’s account, after which the redeemed coins were delivered to Southwest. Because of the requirement of payment in advance and the in-bank delay in delivery, Southwest and the Coin Company agreed that if coins were not delivered within two or three days after a sale, this delay in delivery would constitute a “repurchase” by the Coin Company of the coins for which Southwest had made payment. It was also agreed that such repurchase would result in repayment to Southwest of the amount which it had paid plus a profit to Southwest. This buy-back arrangement had been accomplished between Southwest and the Coin Company on several occasions.

On September 6, 1974, Southwest purchased from the Coin Company 1,000 Mexican 50-peso gold pieces at $209.00 each, and paid the Coin Company by its check for $209,000.00, which was then deposited to the Coin Company’s account at the Bank. When the coins were not delivered in accordance with the parties’ agreement, the transaction was treated as a repurchase by the Coin Company. On September 19th, Mr. Ruiz agreed that the Coin Company had repurchased the 1,000 pesos and delivered to Southwest the Coin Company’s check for $209,000.00. No profit was realized on this particular repurchase, but the Coin Company took a loss of $20,000.00 because of the decreasing price of gold. At the same time, Hooten agreed to make a purchase of 1,300 Austrian 100-corona pieces for $207,350.00, and he gave Mr. Ruiz Southwest’s check for that amount. At the same time, it was agreed that Mr. Hooten would not deposit the Coin Company’s check for $209,000.00 until the next business day so that, with the deposit of Southwest’s check, the Coin Company could redeem coins from the Bank for delivery. At the time the two checks were exchanged, Southwest had a balance in its account at the Bank of $50,922.16.

On some eleven prior occasions when a Southwest cheek had been presented for payment for an amount in excess of its current account, Mr. Browning had checked with Mr. Hooten concerning deposits to be made which would cover the outstanding check. In each instance when Mr. Hooten had given him an assurance that he had a Coin Company check to deposit, the Southwest check in excess of the current account was paid, rather than being returned because of insufficient funds. When Southwest’s check for $207,350.00 was deposited by the Coin Company on September 19, 1974, it was delivered to Mr. Browning in the Bank because the account was insufficient to make payment. On this occasion, Mr. Browning did not check with Mr. Hoo-ten concerning whether or not he was about to make a deposit which would cover this particular check, but, instead, he relied upon a representation from Mr. Ruiz that Southwest did have a Coin Company check for deposit the following day, which would be sufficient with funds then in the account to pay Southwest’s check. Mr. Browning then approved the check for payment, resulting in Southwest’s account being overdrawn in the amount of $153,276.76. The next day, Mr. Ruiz placed a stop payment order against the Coin Company’s $209,-000.00 check, and when that check was deposited on September 20th, it could not be paid and Southwest’s account was insufficient by the amount for which the Bank brought this suit.

The evidence reflected that on other occasions when the Bank had received a stop payment order, it customarily notified a customer or correspondent bank, either by telephone or wire, as a courtesy to protect against a loss. On this occasion, the Bank did not call Southwest to advise of the stop payment order, but, instead, returned the check with the stop payment order by depositing the same in the mail on the next business day, Monday, September 23rd. Such notice was delivered to Southwest on September 25th, the same day the Coin Company collapsed and the Bank took over all of its accounts and inventory. Thus, Southwest was left with its check for $207,-350.00 being charged to its account, and the Austrian coins were never delivered. The Bank having taken over the Coin Company’s inventory, delivery could not be made. In addition, Southwest lost the $50,922.16 in its account on September 19th which was used in part to pay for the check it gave to the Coin Company.

While Southwest admits its liability on its check to the Coin Company and recognizes its responsibility to the Bank for the amount in which its account was overdrawn, it asserts that there is no liability to the Bank by reason of its defenses under the doctrines of waiver and estoppel. It asserts that even though the Bank had an absolute right to return its September 19th check to the Coin Company, that the Bank, acting through Mr. Browning, had waived such right and had established a procedure whereby no checks which would normally be insufficient for payment would be returned without Mr. Browning having first determined that Southwest had other checks to deposit which would make its account sufficient to pay any outstanding check which had already been presented for payment, and that when Mr. Browning failed to check with Mr. Hooten on September 19th about a pending deposit and, instead, okayed the check for payment, he did not comply with existing Bank customs under which it had previously waived its right to return insufficient funds checks.

In addition, Southwest asserted that the Bank’s prior conduct had induced a reasonable belief in Hooten’s mind that the Bank would not declare an overdraft without giving notice to Southwest of such an occurrence, and that by reason of such conduct, the Bank is now estopped to assert an overdraft on this particular check. Southwest asserts that its contentions were sustained in the jury findings in answer to Questions Nos. 3 through 7, which were as follows:

“QUESTION NO. 3
“Do you find from a preponderance of the evidence that the El Paso National Bank established a policy or procedure of authorizing outstanding checks of the Group to be charged against its account, even though thus creating an overdraft, in reliance on obtaining an assurance from William P. Hooten that he then held a check of the Coin Company for deposit to the Group’s account in a sufficient amount to cover such outstanding checks?
“Answer ‘El Paso National Bank did’ or ‘El Paso National Bank did not’
“Answer: El Paso National Bank did’
“If you have answered the preceding question ‘El Paso National Bank did,’ then, but not otherwise, answer the following question:
“QUESTION NO. 4
“Do you find from a preponderance of the evidence that on September 20, 1974, in authorizing the $207,350 check which the Group had delivered to the Coin Company to be charged against the Group’s account, the El Paso National Bank abandoned its prior policy of relying upon an assurance from William P. Hooten and instead relied upon the assurance of Re-nato Ruiz, President of the El Paso Coin Company, Inc., that a check of the Coin Company would be deposited to the Group’s account of sufficient amount to cover the said $207,350 check?
“Answer ‘El Paso National Bank abandoned’ or ‘El Paso National Bank did not abandon’
“Answer: ‘El Paso National Bank Abandoned’
“QUESTION NO. 5
“Do you find from a preponderance of the evidence that the Bank by its prior course of action, if any, in supervising the accounts of the Coin Company and the Group, induced a reasonable belief in the mind of Hooten, acting on behalf of the Group, that said Bank would not declare an overdraft to have occurred in the Group Account without giving actual notice to said Group of the occurrence of such overdraft at the time such overdraft occurred?
“Answer ‘yes’ or ‘no’
“Answer: Yes
“If you have answered the preceding question ‘yes,’ then, but not otherwise, answer the following question:
“QUESTION NO. 6
“Do you find from a preponderance of the evidence that Hooten, acting on behalf of said Group, relied upon such prior conduct of the Bank, if any, in entering into the transaction in question with the Coin Company, to the extent that in good faith he believed that said Bank would not declare an overdraft to have occurred in the Group account without the Bank giving actual notice to the Group of the occurrence of such overdraft at the time the overdraft occurred?
“Answer ‘yes’ or ‘no’
“Answer: Yes
“If you have answered the preceding question ‘yes,’ then, but not otherwise answer the following question:
“QUESTION NO. 7
“Do you find from a preponderance of the evidence, that such reliance of Hoo-ten, if any, upon the prior conduct of the Bank, if any, induced Hooten, acting on behalf of said Group, to act or fail to act in such a way as to result in an overdraft of the Group’s account?
“Answer ‘yes’ or ‘no’
“Answer: Yes

In other issues, the jury found that Southwest issued its cheek for $207,350.00 when the general partners knew that there were insufficient funds in the account for payment, that such conduct was negligence, and that such negligence was a proximate cause of Southwest’s loss. They also found that the general partners of Southwest agreed to exchange insufficient funds checks with the Coin Company and agreed to delay the deposit of the Coin Company check in the Southwest account until the next business day, and that such was negligence and a proximate cause of Southwest’s loss. The Bank contends that these issues establish the existence of a check kiting scheme in addition to the negligence involved.

ISSUE OF WAIVER

The Bank first contends that the defense of waiver was never alleged. This is a plea which must be specifically pled, but where sufficient facts are alleged, it is sufficient notwithstanding that the word “waiver” is not used. 60 Tex.Jur.2d Waiver, Sec. 12 (1964). It appears that the allegations of Paragraph II of Southwest’s “TRIAL AMENDMENT TO THE DEFENDANT’S ANSWER AND ITS CROSS-ACTION” contains allegations of fact sufficient to raise the theory of waiver based upon the Bank’s operating procedure, although the word “waiver” was never used.

Even though we find the pleading raised the issue, we conclude that Questions Nos. 3 and 4 do not establish waiver of the Bank’s right to assert that Southwest’s cheek created an overdraft. In Massachusetts Bonding and Insurance Co. v. Orkin Exterminating Company, 416 S.W.2d 396 (Tex.1967), the Court said:

“Waiver has been frequently defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. Texas & P. Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652 (1947); Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74 (1946). ⅜ * * ”

In this case, there has been no finding that the Bank intentionally relinquished its right to assert that the check which it paid constituted an overdraft on the part of Southwest. Neither has there been any jury finding of intentional conduct inconsistent with the Bank’s right to assert that it is entitled to be paid for the amount of the overdraft. Undoubtedly, the evidence did establish and the jury made a finding that the Bank had established a policy whereby it waived or abandoned its right to automatically return checks which created an overdraft, and rather than exercising that right it established a procedure whereby it would determine from Mr. Hooten that a deposit was being made which would cover a check which had been deposited for an amount in excess of Southwest’s account. But, there is substantial difference between waiving a right to return a check which creates an overdraft and waiving the right to require the customer to make good the amount of an overdraft. The evidence establishes that in each of the cases where Mr. Browning had called Mr. Hooten about a check which created an overdraft, the Bank always required Southwest to make a deposit sufficient to cover the overdraft. (See Question No. 3). Such conduct does not indicate an intentional relinquishment of the right to require such a deposit or payment by its depositor, nor was such conduct inconsistent with claiming its right to require full payment of any check which created an overdraft.

In this case, we conclude that the Appel-lee has neither established as a matter of law nor obtained a jury finding of (1) an intention upon the part of the Bank to waive its right to declare that Southwest’s check created an overdraft, or (2) some act upon the part of the Bank amounting to a surrender of its right to declare that the check created an overdraft. Each of these elements was an essential part of the Ap-pellee’s claim of waiver and there are no jury findings to establish such elements of this defense. Segrest, Waiver and Estop-pel, 20 Baylor L.Rev. 325 at 332 (1968). Thus, waiver has not been established as a defense to Southwest’s admitted liability on its check.

The conclusion which we have reached is required by the very issue upon which the Appellee relies. In Question No. 3, the jury found that even though the Bank established a policy of not returning insufficient funds cheeks and that this policy was based upon a reliance that the check would be covered by a deposit, that under such policy outstanding checks for more than Southwest’s balance were charged against its account. Thus, the jury in effect found that the Bank, under its policy which abandoned its absolute right to return insufficient funds checks, did, nevertheless, charge those cheeks when they were paid against the account of Southwest. We can only conclude that waiver has not been established and it may not be asserted as a defense against its admission of liability on its check of September 19, 1974.

ISSUE OF ESTOPPEL

In Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952), the Court set forth the element of an equitable estoppel in the following language:

“On the question of estoppel we find that ‘In order to constitute an equitable estoppel or estoppel in pais there must exist a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.’ 31 C.J.S. Estoppel § 67, page 254. * * * ”

In those cases where the Courts have applied a “quasi estoppel,” the same results have been reached as in an estoppel in pais, but in such instance it is held that no concealment or misrepresentation of existing facts on the one side, and no ignorance or reliance on the other, is a necessary element of the defense. 31 C.J.S. Estoppel § 10'7 (1964). One of the bases for this doctrine is in an election, and the principle precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken by him. 31 C.J.S. Estoppel § 107 (1964).

It is the position of Southwest that the jury’s answers to Questions Nos. 3 through 7 show that the Bank established a policy of accepting checks which created an overdraft on its account only upon an assurance from Mr. Hooten that a deposit would be made to cover such outstanding checks; that Southwest was relying upon such policy or procedure of the Bank when the Bank elected to rely upon assurances from the Coin Company as to the check for $207,-350.00; and that such reliance induced Southwest to act or fail to act in such a way as to result in the overdraft of its account.

While the Bank denies that the findings are sufficient to establish an estoppel, it asserts that in any event Southwest cannot obtain such an equitable defense because of its own conduct. It relies upon the rule set forth in 31 C.J.S. Estoppel § 102 (1964), which states: “In no event can an estoppel arise in favor of one who has been guilty of contributory negligence.” The basis for such rule, of course, is that an estoppel resting wholly on equity cannot be used to shift a loss from one careless person to another. The above quoted rule was followed in City of Tyler v. Bruck, 267 S.W.2d 429 (Tex.Civ.App.—Texarkana 1954, writ ref’d n. r. e.), where the Court pointed out that equity will not relieve a person from his erroneous acts or omissions resulting from his own negligence. The same rule was applied in Continental Credit Corporation v. Norman, 303 S.W.2d 449 (Tex.Civ.App.—San Antonio 1957, writ ref’d n. r. e.), where Justice Pope, writing for the Court, said:

“The trial court concluded that both General Motors, the owner; and Continental, the mortgagee, were negligent. That conclusion defeats Continental’s recovery. ‘In no event can an estoppel arise in favor of one who has been guilty of contributory negligence.’ 31 C.J.S. Estoppel §§ 102, 104; . City of Tyler v. Bruck, Tex.Civ.App., 267 S.W.2d 429; Holland v. Blanchard, Tex.Civ.App., 262 S.W. 97, 102; Sheffield Car Co. v. Constantine Hydraulic Co., 171 Mich. 423, 137 N.W. 305; accord, Gose v. Brooks, Tex.Civ.App., 229 S.W. 979, 938.”

As noted earlier, the jury found that Southwest was negligent in issuing its check when the general partners knew that there were insufficient funds in the account for payment, and further that it was negligent in agreeing to exchange insufficient funds with the Coin Company and in agreeing to delay the deposit of the Coin Company check in its account until the next business day. Southwest makes no attack upon those jury findings, and, under the rule set forth above, they bar its right to assert the equitable defense of estoppel.

In addition, the Bank asserts that Southwest does not come into the Court with clean hands, and therefore it may not assert equitable grounds to relieve it from liability for its overdrawn account. The jury found in answer to Question No. 11 that there were insufficient funds in its account to pay such check. In answer to Question No. 20, the jury found that Southwest and the Coin Company agreed to exchange insufficient funds checks knowing that they were insufficient, and, further, that Southwest agreed to delay the deposit of the check it received from the Coin Company until after its own check had been deposited for payment. Section 32.41 of the Texas Penal Code provides that:

“(a) A person commits an offense if he issues or passes a check or similar sight order for the payment of money knowing that the issuer does not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders outstanding at the time of issuance.”

Clearly, under this Code provision, our standards of conduct prohibit the issuance of a check with the knowledge that sufficient funds are not on deposit for payment of such check, and one who acts in violation thereof does not have clean hands.

With regard to the applicability of the doctrine of estoppel by one whose own conduct attributes to his loss, the general rule is set forth in 31 C.J.S. Estoppel § 75 (1964), as follows:

“The doctrine of estoppel is for the protection of innocent persons, and only the innocent may invoke it. There is, in the very nature of the doctrine, some element of the maxim that one must come into a court of equity with clean hands. * * * A person may not predicate an estoppel in his favor on, or assert such estoppel for the purpose of making effective, obtaining the benefit of, or shielding himself from the results of, his own fraud, and, similarly, he may not do so with respect to his own dereliction of duty, violation of law, wrongful act, or other inequitable conduct in the transaction in question * * *.”

Although the Court may have been in disagreement in Champlin Oil & Refining Company v. Chastain, 403 S.W.2d 376 (Tex.1965), as to who had the burden of proof on the “clean hands” issue in a case involving an estoppel, it was obviously recognized that clean hands were required in order for estoppel to apply. Chief Justice Calvert, in his dissent on the motion for rehearing, said:

“I apprehend that ‘clean hands’ is not an affirmative defense to a plea of estop-pel; it is a necessary predicate for the plea, and if it is an issuable fact under the evidence, the burden of obtaining a favorable finding is on the party asserting an estoppel. It is thus but one of the cluster of issues essential to the defense of estoppel.”

In this case, Appellee did not meet that burden as part of its case. In fact, the Appellant accepted the burden and obtained jury findings of conduct which established that Appellant did not have “clean hands.” Thus, we also conclude that estoppel is not applicable for this additional reason.

We sustain the Appellant’s Points of Error I, II, III, V and VI. The Appellee having admitted liability for the amount of its overdrawn account in the sum of $153,-276.76, and having failed to establish a defense to such admitted liability, the Bank is entitled to judgment for such sum plus interest at the rate of nine percent (9%) per annum from the date of the trial Court’s judgment.


author: J. CURTISS BROWN, Chief Justice.

text:
    J. M. HICKS et al., Appellants, v. TEXAS MUNICIPAL POWER AGENCY, Appellee.
    No. 1581.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 16, 1977.
    Rehearings Denied April 6, 1977.

      Karl C. Hoppess, Houston, Coulter T. Hoppess, Bryan, for appellants.
    Albert Witcher, Roy L. Barrett, Ñaman, Howell, Smith & Chase, Waco, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from the granting of a temporary injunction. The principal question presented is the nature and extent of condemnation power granted a municipal power agency under Tex.Rev.Civ.Stat.Ann. art. 1435a (Supp.1976). J. M. Hicks and others (appellants) brought suit against Texas Municipal Power Agency (appellee) to enjoin it from cutting survey lines, drilling core holes and otherwise invading appellants’ property. Appellee is an incorporated power agency created by the cities of Bryan, Denton, Garland and Greenville pursuant to article 1435a. Its purpose is the development of facilities to be used in generating electric power. By resolution of the Board of Directors of this Agency, a proposed plant site in Grimes County for a lignite fueled generating plant was adopted. The activities sought to be enjoined are to be made in contemplation of building a railroad spur approximately 8½ miles from this plant site to the Burlington Railroad. The spur track is to pass through appellants’ property parallel to and approximately 60 feet off of an existing county road.

In response to appellants’ original petition, appellee answered and counterclaimed seeking to have appellants enjoined from interfering with these operations. The district court granted the temporary injunction, and appellants have appealed that order to this court. This court granted appellee a temporary injunction to preserve our jurisdiction of the subject matter of the appeal by ordering appellee to refrain from entering onto appellants’ property.

Appellee asserts that article 1435a grants to it the power of eminent domain to condemn all property necessary for the construction and operation of its facilities which, they allege, includes the proposed railroad spur. The claimed purpose of the spur is to transport heavy equipment and building materials during the construction phase, and later to haul approximately 1,000 tons of limestone per day to the plant for use in a pollution control scrubber system required by both state and federal regulation. The proposed survey of appellants’ land will entail surveying its boundary lines, opening gaps or building gates through appellants’ fences where necessary, surveying the most advantageous route for the spur, performing core drilling operations to determine the composition of the subsurface, and clearing all obstructions and timber by bulldozer for a 12 foot wide path to bring in the equipment necessary to conduct the core drilling and survey operations.

Appellee admits responsibility “for all damages” caused by such conduct; however, the extent of such concession is not clear. We do not know whether appellee would pay the reasonable value of mineral information obtained from the survey or for the loss sustained if the land is determined to be valueless for mineral development. For the purpose of this opinion we will assume that appellee’s concession covers all damages of every kind that may be sustained.

Article 1435a governs public or private entities such as cities and towns, corporations and conservation and reclamation districts which engage in the generation, transmission or distribution of electric energy. It authorizes such entities to join together as co-tenants or co-owners in the construction and operation of electric generating plants, transmission lines and “other electric facilities.” Section 4a(a) of this Act specifically provides for the creation of a municipal power agency such as appellee.

In order to more readily accomplish the purposes of this Act, two or more public entities by concurrent ordinances may create a joint powers agency to be known as a municipal power agency, without taxing power, as a separate municipal corporation, a political subdivision of the state, and body politic and corporate, to have and exercise all of the powers which are by Chapter 10 of Title 28, Revised Civil Statutes of Texas, 1925, as amended, and this Act, conferred upon a public entity or entities, provided that such agency shall not be authorized to engage in any utility business other than generation, transmission, and sale or exchange of electric energy to the participating public entities and to private entities who are joint owners with the agency of an electric generating facility located within the state.

The right of eminent domain for condemnation of private property is expressly granted to the participating public and private entities under section 4(2).

Each participating public entity and each participating private entity shall have the right and power to acquire, for the use and benefit of all participating entities, by purchase or through the exercise of the power of eminent domain, lands, easements, and properties for the purpose of jointly owned electric facilities, and shall have the power to transfer or convey such lands, easements, and properties, or interest therein, or otherwise to cause such lands, easements, and properties, or interests therein, to become vested in other participating entities to the extent and in the manner agreed between the participating entities. In all cases in which a participating entity exercises the right and power of eminent domain conferred hereby, it shall be controlled by the law governing the condemnation of property by incorporated cities and towns in this state, and the right and power of eminent domain hereby conferred shall include the right and power to take the fee title in land so condemned, except that no participating entity has the right or power to take by the exercise of the power of eminent domain any electric facilities, or interest therein, belonging to any other entity.

Moreover, section 4a(a) expressly delegates to a municipal power agency, as distinguished from a participating entity, all powers conferred upon a public entity by Chapter 10, Title 28 of our Revised Civil Statutes which includes condemnation authority. Title 28 basically establishes the powers of cities and towns. Chapter 10 specifically deals with the powers necessary for cities and towns to own and operate public utilities. Article 1109b of this chapter provides:

Incorporated cities and towns shall have the power to appropriate private property for public purposes whenever the governing authorities shall deem it necessary and to take any private property within or without the city limits for any of the following purposes, to wit:
To have the power to appropriate private property for public purposes whenever the governing authorities shall deem it necessary and to take any private property within or without the city limits for any of the following purposes, to wit: City halls, police stations, jails, calaboose, fire stations, libraries, school houses, high school buildings, academies, hospitals, sanitariums, auditoriums, market houses, reformatories, abattoirs, railroad terminals, docks, wharves, warehouses, ferries, ferry landings, elevators, loading and unloading devices, shipping facilities, piers, streets, alleys, parks, highways, boulevards, speedways, playgrounds, sewer systems, storm sewers, sewage disposal plants, drains, filtering beds and emptying grounds for sewer systems, reservoirs, water sheds, water supply sources, wells, water and electric light systems, gas plants, cemeteries, crematories, prison farms, and to acquire lands with and without the city for any other municipal purposes that may be deemed advisable.
. That, in all cases where the city seeks to exercise the power of eminent domain, it shall be controlled, as nearly as practicable, by the law governing the condemnation of property of railroad corporations in this State, the city taking the position of the railroad corporations in any such case; that the power of eminent domain hereby conferred shall include the right of the governing authority, when so expressed, to take the fee in the lands so condemned and such power and authority shall include the right to condemn public property for such purposes.

Tex.Rev.Civ.Stat.Ann. art. 1109b (1963). See also Tex.Rev.Civ.Stat.Ann. art. 1107 (1963).

Appellants argue by their first point of error that'appellee has no right to conduct surveys for the purpose of building a railroad spur because it is not authorized to own and operate a railroad. Thus, they contend that appellee cannot use its condemnation power to build the spur. In support of their position, appellants point to the limitation provided in section 4a(a).

[PJrovided that such agency shall not be authorized to engage in any utility business other than generation, transmission, and sale or exchange of electric energy to the participating public entities and to private entities who are joint owners with the agency of an electric generating facility located within the state.

It is appellants’ position that a railroad is a “utility business” as the term is used in section 4a(a). While it is true that the operation of a railroad is, in most cases, deemed a public utility subject to the regulation by the Railroad Commission, Tex. Rev.Civ.Stat.Ann. art. 6445 (1926), we do not believe that the legislative intent behind this limitation in section 4a(a) was to exclude appellee’s use of a railroad for the sole purpose of transporting materials necessary for the operation of the plant. It is clear that this provision was intended to prohibit a power agency from providing any utility service to the public other than the generation of electric power and energy. In this regard where the legislature has not defined a particular word or phrase, the ordinary meaning given such words or phrases will control. Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93, 96 (Tex.Sup.1957). The ordinary meaning given the word “utility,” and as specifically defined in other statutes, is that of a service such as supplying water, gas or electricity to the general public. See Tex. Rev.Civ.Stat.Ann. art. 1446a (1962), and art. 1446c, § 3(c)(4) (Supp.1976). Appellee would no doubt be prohibited from operating a railroad for the use of the general public; however, where the operation of this spur is for the limited purpose of supplying the plant with needed materials and totally incidental thereto, it cannot be considered a “utility business” as contemplated in section 4a(a). Cf. Tex.Rev.Civ.Stat.Ann. art. 1446c, § 3(c)(4) (Supp.1976).

Appellants also point to article 1435a, section 1 which authorizes appellee to own and operate “electric generating units and plants, electric transmission lines, and other electric facilities . . . Section 2(4) defines “electric facilities” as

any facilities necessary or incidental to the generation of electric power and energy or the transmission thereof, including electric generating units, electric generating plants, electric transmission lines, plant sites, rights-of-way, and real and personal property and equipment and rights óf every kind useful in connection therewith.

They contend that the operation of a railroad spur does not fall within this definition of “electric facilities.” Appellee, on the other hand, argues that the proposed railroad spur is “necessary” and “incidental” to its plant for generation of electric power. Statutes granting the power of eminent domain are strictly construed in favor of the land owner and against the governing body exercising power. Burch v. City of San Antonio, 518 S.W.2d 540, 544-45 (Tex.Sup.1975); Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828, 831 (Tex.Sup.1958). In Coastal States, however, the supreme court stated that

[sjtrict construction is not, however, the exact converse of liberal construction, for it does not require that the words of a statute be given the narrowest meaning of which they are susceptible. The language used by the Legislature may be accorded a full meaning that will carry out its manifest purpose and intention in enacting the statute, but the operation of the law will then be confined to cases which plainly fall within its terms as well as its spirit and purpose.

Coastal States Gas Producing Co. v. Pate, 309 S.W.2d at 831; accord, Burch v. City of San Antonio, 518 S.W.2d at 545.

Following these rules of construction, we observe, at the outset, that article 1435a does not expressly authorize a power agency to construct and operate a railroad spur. This right, if it exists at all, must be implied from the language in the statute itself as an incidental and necessary function to the operation of appellee’s electric generating plant. The term “electric facilities” is defined in section 2(4) of article 1435a as “any facilities necessary or incidental to generation of electric power . . . .” These facilities include “real and personal property and equipment and rights of every kind useful in connection therewith.”

The statutory language in article 1109b of title 28, chapter 10 which vests eminent domain power in incorporated cities and towns and which is specifically adopted by article 1435a, section 4a(a) must also be considered. That article lists specific purposes including “water and electric light systems” for which the eminent domain power can be exercised. This listing is followed by the broad language: “and to acquire lands with and without the city for any other municipal purposes that may be deemed advisable.” Several court decisions have construed similar language to permit condemnation of property for purposes not expressly authorized by statute. See Snellen v. Brazoria County, 224 S.W.2d 305 (Tex.Civ.App.—Galveston 1949, writ ref’d n. r. e.); Weyel v. Lower Colorado River Authority, 121 S.W.2d 1032 (Tex.Civ.App.—Austin 1938, writ ref’d); cf. Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828 (Tex.Sup.1958). We recognize the cases cited by appellant in which water and conservation districts in exercising their eminent domain authority to construct lakes cannot condemn contiguous land for purposes of building park and recreational facilities to be leased to private individuals. In these cases the courts found such purposes to be private in nature and, therefore, not statutorily authorized either expressly or by necessary implication. Franklin County Water Dist. v. Majors, 476 S.W.2d 371 (Tex.Civ.App.—Texarkana 1972, writ ref’d n. r. e.); City of Wichita Falls v. Thompson, 431 S.W.2d 909 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.); Brazos River Conservation & Reclamation Dist. v. Harmon, 178 S.W.2d 281 (Tex.Civ.App.—Eastland 1944, writ ref’d w. o. m.).

In this case there was testimony at the hearing on the motions for temporary injunctions by appellee’s project manager concerning the necessity for a railroad spur. He testified that the spur would be used to haul heavy construction equipment and materials to the plant initially and thereafter to carry limestone for a scrubber system in compliance with certain state and federal environmental regulations. There is no evidence in this record that the determination by appellee of the necessity for a spur passing through appellants’ property was arbitrary, capricious, fraudulent or an abuse of discretion. See Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79 (Tex.Sup.1940); Rainey v. Red River, T. & S. Ry., 99 Tex. 276, 89 S.W. 768 (Tex.Sup.1905); Franklin County Water Dist. v. Majors, 476 S.W.2d 371 (Tex.Civ.App.—Texarkana 1972, writ ref’d n. r. e.); Luby v. City of Dallas, 396 S.W.2d 192 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.).

It should be noted that the narrow issue presented on this appeal is whether the trial court abused its discretion in granting appellee’s temporary injunction to conduct its survey. The record is silent as to the reason that Burlington Railroad or some other common carrier by rail could not provide the necessary rail service in an expeditious and economical manner. In the event that condemnation proceedings are ultimately filed, an appropriate forum would be presented for decision of this question, if it is raised, as to whether the determination to build the spur in question was the result of fraud, bad faith or clear abuse of discretion. See City of Houston v. Hamons, 496 S.W.2d 692 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ). Under the facts before us, however, we hold that the trial court did not abuse its discretion in finding that the construction of the railroad spur was a necessary and incidental function to the operation of the generating plant.

By appellants’ third point of error they contend that appellee’s right to build a railroad spur can exist only under the statutes governing corporations and others which build and operate railroads from mines or manufacturing plants to the nearest commercial railroad line. Tex.Rev.Civ. Stat.Ann. art. 6550 (1926), and art. 6550al (Supp.1976). These statutes grant such corporations the power to condemn land to build their railroad provided that they declare themselves a common carrier and, thus, bring themselves under the regulation of the Railroad Commission. We agree with appellee that these statutes do not control its proposed operation. The purpose of these statutes is to vest necessary condemnation power in corporations which because of their private, as opposed to public, nature would not ordinarily have such power. In contrast, appellee has been expressly designated as a “municipal corporation, a political subdivision of the state, and body politic and corporate . . . .” Moreover, it has been expressly granted the power of condemnation.

Appellants’ fourth and fifth points of error attack appellee’s alleged right to conduct preliminary surveys, including core drilling, before building the railroad spur and instituting condemnation proceedings. Generally, courts have upheld the right of a governing body vested with condemnation power to enter onto lands for the purpose of a preliminary survey either by express statutory grant or by implication. See Rainey v. Red River, T. & S. Ry., 99 Tex. 276, 89 S.W. 768 (Tex.Sup.1905); Puryear v. Red River Authority of Texas, 383 S.W.2d 818 (Tex.Civ.App.—Amarillo 1964, writ ref’d n. r. e.); Lewis v. Texas Power & Light Co., 276 S.W.2d 950 (Tex.Civ.App.—Dallas 1955, writ ref’d n. r. e.); Restatement (Second) of Torts § 211, comment c at 399 (1965); Annot., 29 A.L.R.3d 1104 (1970). Neither article 1435a nor article 1109b expressly grants appellee the power to a preliminary survey prior to condemnation; however, following the rationale in Lewis v. Texas Power & Light Co., supra, we feel that appellee’s right to build a railroad spur necessarily implies the right to survey. We also agree with appellee that its right to survey is governed by Tex.Rev.Civ.Stat.Ann. art. 6318 (1926) which authorizes railroad corporations to conduct surveys. The application of this article can be implied from the language in article 1109b which states that

in all cases where the city seeks to exercise the power of eminent domain, it shall be controlled, as nearly as practicable, by the law governing the condemnation of property of railroad corporations in this State, the city taking the position of the railroad corporations in any such case

Tex.Rev.Civ.Stat.Ann. art. 1109b (1963).

We do not agree, however, that ap-pellee’s right to survey necessarily includes the right to conduct core drilling operations. Article 6318 provides:

Every railroad corporation shall have the right to cause such examination and survey for its proposed railway to be made as may be necessary to the selection of the most advantageous route, and for such purpose may enter upon the lands or waters of any person or corporation, but subject to responsibility for all damages that may be occasioned thereby. [Emphasis added.]

In construing the legislative intent in using the word “survey,” we may look to the title of the statute which is captioned “Lineal survey.” See Southwestern Bell Telephone Co. v. Houston Independent School Dist., 397 S.W.2d 419, 421-22 (Tex.Sup.1965); Trawalter v. Schaefer, 142 Tex. 521, 179 S.W.2d 765, 767 (Tex.Sup.1944). The rules of statutory construction also permit reference to other statutes which are in pari materia and deal with the same or similar subject matter. See Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 600 (Tex.Sup.1975); Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 274 (Tex.Sup.1944); Arcola Sugar Mills Co. v. Houston Lighting & Power Co., 153 S.W.2d 628, 632-33 (Tex.Civ. App.-Galveston 1941, writ ref’d w. o. m.). With this rule in mind we examine Tex.Rev.Civ.Stat.Ann. art. 6337 (1926).

[N]o railroad company shall enter upon, except for a lineal survey, any real estate whatever, the same being private property, for the purpose of taking and condemning the same, or any material thereon, for any purpose whatever, until the said company shall agree with and pay the owner thereof all damages that may be caused to the lands and property of said owner by the condemnation of said real estate and property, and by the construction of such road. [Emphasis added.]

It is clear, then, that the legislative intent behind these two acts was to limit a railroad company to a “lineal survey.” Appellee has cited Puryear v. Red River Authority of Texas, supra, in support of its argument that the right to survey may include by necessary implication the right to conduct core drilling operations. That case, however, is distinguishable on its facts. In Puryear, the pertinent statute authorizing the Red River Authority to survey was Tex. Rev.Civ.Stat.Ann. art. 7880^49 (1954), governing water control and improvement districts, and the survey was in preparation for constructing a dam. In this case, however, the controlling statute is article 6318 governing the construction of railroads. Under this statute we think it apparent that it was the legislature’s intent to limit railroads to a lineal survey. We sustain appellants’ fifth point of error.

In their sixth point of error appellants complain that the temporary injunction was overly broad as to area and location and provided for no time limitation. We sustain these points in part since we believe that appellee should proceed with reasonable dispatch and should be confined to the general area designated by the testimony in the record. The judgment below is, therefore, reversed and rendered in part and modified and affirmed in part.

Insofar as the judgment of the court below permits “drilling all such holes into and through the surface and sub-surface of said property for the purpose of determining the composition of the strata and sub-strata thereof and the underground water level .” and “drill such holes” and “making water level and other readings in said holes on days subsequent to the drillings thereof, plugging said holes . . . ,” said judgment is hereby reversed and judgment is rendered enjoining appellee from such specific activities. Otherwise, the judgment of the court is modified so that the temporary injunction granted appellee is to remain effective 45 days after this judgment becomes final, and the judgment is also modified so as to permit the activities authorized to be conducted within a 150 foot area of either side of the line shown on plaintiffs’ exhibit 3. Our temporary injunction heretofore entered to preserve our jurisdiction will remain in effect until this judgment becomes final. Cost of this appeal is assessed one-half against appellants and one-half against appellee.

Reversed and rendered in part; modified and affirmed in part.

      . Probably should read “within”.


author: SHANNON, Justice.

text:
    Milton TEAGUE, Sr., Appellant, v. CHARTER OAK FIRE INSURANCE COMPANY, Appellee.
    No. 12512.
    Court of Civil Appeals of Texas, Austin.
    March 23, 1977.
    Rehearing Denied April 13, 1977.
    Pat Mullen, Colbert & Mullen, Austin, for appellant.
    Richard T. McCarroll, Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
   SHANNON, Justice.

This is a workmen’s compensation appeal. Milton Teague, Sr., is appellant, and the Charter Oak Fire Insurance Company is appellee. Teague claimed compensation for repetitious traumatic injury to his back during the sixteen years he worked for Southern Union Gas Company.

The trial was to a jury. The jury failed to find that Teague sustained an injury, and the district court of Travis County entered a take-nothing judgment.

Teague’s single point of error concerns the definition of “injury” submitted by the district court. That definition follows:

“ ‘Injury’ means damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and such diseases or infection as naturally result therefrom, or the incitement, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm.
“ ‘Injury’ does not include ordinary condition of life to which the general public is exposed outside of the employment except where such conditions follow as an incident to an injury as defined herein.”

Teague claims that the definition served to exclude from the jury’s consideration the incitement, acceleration, or aggravation of an ordinary condition of life.

Teague pleaded that on about April 14, 1975, he became disabled. Before that date he had experienced pain in his back but he was able to continue to work. After consultation with physicians Teague learned that he suffered from a “chronic lumbrosa-cral strain superimposed on degenerative disc disease.” None of the physicians advised Teague to continue working as a laborer.

Teague alleged further that for sixteen years his work for Southern Union Gas Company consisted of heavy lifting, digging, and operating an air hammer. Such tasks constituted “repetitious, physical, traumatic activities” and such activities were the producing cause of his back condition. Teague averred also that he suffered an injury as defined in Tex.Rev.Civ.Stat. Ann. art. 8306 § 20 (1971).

The proof was that Teague suffered from a chronic back strain superimposed on advanced degenerative disc disease of the lower lumbar spine. Teague called Dr. Roy Leamon, an orthopedic surgeon. Dr. Leam-on testified, not surprisingly, that degenerative disc disease is not a rare condition. Degenerative disc disease concerns the wearing process of the body, and is a condition that all persons commonly experience at one time or another. Some persons experience degenerative disc disease sooner than others. Some persons have the disc condition but do not suffer pain although other persons experience pain.

In response to a hypothetical question Dr. Leamon affirmed that the class of work in which Teague had been engaged would tend to cause trauma to Teague’s back. Although Dr. Leamon was of the opinion that Teague’s work would likely cause him pain and symptoms in his back, Dr. Leamon did not testify that the work would be likely to incite, aggravate, or accelerate the degenerative disc disease.

In response to cross-examination, Dr. Leamon explained that degenerative disc disease is a part of the aging process and that there is not necessarily any relationship with the class of work which a person does and the fact that he may or may not have degenerative disc disease. Teague could have had degenerative disc disease regardless of the nature of his work. Dr. Leamon responded further that degenerative disc disease is an ordinary disease or condition of life to which all persons are exposed regardless of the type of work they do, or whether they work at all. Dr. Leam-on could not testify that based upon medical probability, Teague’s work was the cause of his degenerative disc condition.

Teague’s appellate attack is centered upon the second paragraph of the court’s definition of “injury.” That paragraph instructs the jury that ordinary conditions of life are not “injuries” unless such conditions follow as an incident to an injury.

We have been unable to find any authority in point. Nevertheless, an examination of Tex.Rev.Civ.Stat.Ann. art. 8306 § 20 (1971) convinces us that the district court did not err in defining “injury.” The court’s definition is premised upon § 20 which provides:

“Sec. 20. Wherever the terms ‘Injury’ or ‘Personal Injury’ are used in the Workmen’s Compensation Laws of this State, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom. The terms ‘Injury’ and ‘Personal Injury’ shall also be construed to mean and include ‘Occupational Diseases,’ as hereinafter defined. Whenever the term ‘Occupational Disease’ is used in the Workmen’s Compensation Laws of this State, such term shall be construed to mean any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom. An ‘Occupational Disease’ shall also include damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided, that the date of the cumulative injury shall be the date disability was caused thereby. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident to an ‘Occupational Disease’ or ‘Injury’ as defined in this section.” (Emphasis added)

By the terms of the statute an “injury” resulting from repetitious physical traumatic activity is an occupational disease. The statute provides further that ordinary diseases of life are not compensable except where such diseases follow as an incident to an occupational disease or injury as defined therein. A comparison of the second paragraph of the court’s definition of “injury” and the terms of the statute demonstrates that the court in its definition followed nearly verbatim the language of the statute.

Teague argues that the second paragraph of the definition of “injury” precludes the jury from considering the incitement, acceleration, or aggravation of an ordinary condition of life. Appellee’s response is that by the terms of § 20, ordinary diseases or conditions of life to which the general public is exposed outside of employment are not compensable and are not “injuries” except where such conditions follow as an incident to an “injury” as defined in the statute. In its first paragraph of the definition, the court defined “injury” to mean “ . damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time ... or the incitement, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing by reason of such damage or harm.” The jury was permitted to find as an injury the incitement, acceleration, or aggravation of a previously existing ordinary condition of life so long as Teague could show that such incitement, acceleration, or aggravation resulted from repetitious physical traumatic activity. The jury was not instructed that an ordinary condition of life, though aggravated by work activity, was not an injury. To the contrary, the jury was instructed that ordinary conditions of life are not injuries, unless damage or harm to the physical structure of the body results from the incitement, acceleration, or aggravation of that previously existing condition. We are in agreement with appellee’s response, and, accordingly, we overrule appellant’s point of error.

The judgment is affirmed.

Affirmed.


author: ROBERTS, Judge. PHILLIPS, Judge. DOUGLAS, Judge.

text:
    Bernard Norman FAULKNER, Appellant, v. The STATE of Texas, Appellee.
    No. 51235.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1976.
    Concurring Opinion On State’s Motion For Rehearing April 20, 1977.
    Victor R. Blaine, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and James C. Brough .and Edward A. Dodd, Asst. Dist. Attys., .Houston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for the possession of marihuana. A jury found appellant guilty and the court assessed his punishment at five years’ probation. The offense occurred on February 8, 1974 and trial commenced on October 22, 1974.

Officers Franks and Holloway of the Houston Police Department stopped appellant and a passenger in their car on an access road to the Gulf Freeway around 11:00 on the night in question. Both officers testified that their attention was drawn to appellant’s vehicle by the fact that it was driving slowly and bore out-of-county tags, and by the fact that the people in the car seemed “cautious” or “conscious” of the officers’ proximity to them. They testified that they stopped the car to cheek the operator’s license and to see if the car was stolen; the operator’s license was checked as a matter of routine and the only cause the officers had to believe the vehicle was stolen was a “hunch.”

Appellant and Officer Franks both got out of their vehicles and met between them, at which time appellant produced a valid Texas operator’s license upon request. At the same time, Officer Holloway walked around appellant’s vehicle and ascertained that it bore a valid inspection sticker. He then shined his flashlight into the automobile and spotted a pistol in plain view on the floorboard. A search of the appellant, the passenger, and the automobile revealed some live rounds of .45 caliber ammunition, some white powder, some pills, and a large sum of money. The officers were unable to open the trunk. Appellant and his passenger were arrested and a wrecker was summoned to tow the car away.

The automobile was left outside the gates of a private salvage yard where the proprietor discovered it the next morning. He testified that the trunk popped open when he attempted to tow the car into the yard. In the trunk, he saw four or five pounds of marihuana. A passing motorcycle policeman was flagged down and turned the material over to the narcotics division.

Appellant challenges the legality of his initial arrest and search, and thus the admissibility of the marihuana found at the end of the chain of events which followed. He filed a motion to suppress prior to trial and his objection to the admission of the evidence during trial was overruled. If the initial arrest was invalid, the marihuana later found would be subject to suppression under the “fruit of the poisonous tree” doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The initial stop of appellant and his passenger was not justified by probable cause to believe that any crime had been or was being committed. The officers saw no evidence of any traffic offenses. The inarticulate hunch, suspicion, or good faith of the officer in suspecting the car to be stolen was insufficient to constitute probable cause for an arrest, or even a temporary detention. Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1973). The out-of-county tags and slow driving of the appellant were not evidence of any wrongdoing. And the “caution” of the car’s occupants in the presence of the police officers did not rise to the level of probable cause, either. Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974); Brown v. State, 481 S.W.2d 106, 112 (Tex.Cr.App.1972).

However, Texas law does give peace officers the right to stop and detain motorists for the limited purpose of checking their operators’ licenses. Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973); Black v. State, 491 S.W.2d 428 (Tex.Cr.App.1973). Section 13 of Art. 6687b, V.A.C.S. provides in part, “. . . Any peace officer may stop and detain any motor vehicle operator for the purpose of determining whether such person has an operator’s license as required by this Section.” This provision does not authorize fishing expeditions, however. Pruitt v. State, 389 S.W.2d 475 (Tex.Cr.App.1965), overruled on other grounds in Onofre v. State, 474 S.W.2d 699 (Tex.Cr.App.1972).

The question then becomes: What was the reason for the stop of appellant’s vehicle? There was extensive testimony from both officers on this question both at the hearing on the motion to suppress and at the trial. Although the operator’s license check was advanced as one reason for the detention, it was explained that this was merely a matter of routine in all such situations. The real reason for the stopping of appellant’s automobile would appear to have been its out-of-county tags and the slow, “cautious” driving of its driver. Officer Franks, who made the decision to stop appellant, testified as follows:

“Q (by Mr. Blaine) You stopped him because he was driving fifteen or twenty miles per hour and he seemed to be conscious of your presence and the license plates on the car were from some other county?
“A Yes sir.
“Q That’s the only reason you stopped him?
“A Yes sir.
* * * * * *
“Q You were the one that decided first to stop the vehicle?
“A Yes sir.
“Q Am I correct on the reasons you were going to stop it?
“A We were going to see if the plates were stolen or the car was stolen and check his driver’s license.
“Q If he had been driving at thirty or thirty five miles per hour and had not seemed to be conscious of your presence and he had had Harris County license plates, then you would not have stopped him to check his driver’s license?
“A Probably not.”

In the case of Hall v. State, 488 S.W.2d 788 (Tex.Cr.App.1973), a police officer stopped the defendant for failure to signal a right turn and discovered a gun under the driver’s seat. After holding the traffic arrest invalid, this Court noted that the defendant’s detention could not be justified under Sec. 13 of Art. 6687b, V.A.C.S., either. When the arresting officer in that case was asked if he would have stopped the defendant for a license check if the defendant had continued in a normal manner without apparently violating any laws, the officer replied, “I doubt very seriously that I would have.”

Even if it could be said that appellant’s detention was justified on the basis of Art. 6687b, Sec. 13, V.A.C.S., the officers’ subsequent actions further infringed on appellant’s rights under our state and federal constitutions. A New Mexico officer used a statute very similar to See. 13 of Art. 6687b in stopping a man and searching the trunk of his car in State v. Bloom, 19 Cr.L. 2060 (N.Mex.App., March 16, 1976). The court there said that the officer could not use such a regulatory statute as an excuse to check out his suspicions. “However, the actions of the police must be in conformity with the constitutional requirements of the Fourth Amendment. See Carroll v. U.S., 267 U.S. 132, [45 S.Ct. 280, 69 L.Ed. 543], U.S. v. Jenkins, 528 F.2d 713 (10th Cir. 1975). When the detention permitted by the statute becomes a mere subterfuge or excuse for some other purpose which would not be lawful the actions then become unreasonable and fail to meet the constitutional requirement. Murphy v. State, 194 Tenn. 698, 254 S.W.2d 979.”

The reasons given for the police officer’s detention of the defendant in Pruitt, supra, were likewise suspect, although the operator’s license check was given as one of them. This Court wrote,

“Assuming however, that the patrolman did stop appellant to check his driver’s license, then the patrolman had no right to make a search as incident to this stopping . . . . Here, the appellant had in his possession and presented to the officer a valid, unexpired driver’s license. This finding terminated the patrolman’s responsibility in this matter.”

The search condemned in Pruitt was the mere shining of a flashlight in the back seat of defendant’s automobile. The light revealed a case of wine which would have been in plain view in the daylight. Onofre v. State, supra, overruled Pruitt to this extent, stating that, “The plain view rule does not go into hibernation at sunset.” But Pruitt’s discussion of the limitations on the scope of an investigation based on an operator’s license check remain valid, as the discussion in Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970) makes clear.

As in the cases of Pruitt, supra, and Bloom, supra, there is much testimony in the instant case that the officers’ detention of appellant was for more than just a routine license check. Even giving them the benefit of this doubt, however, it appears that their investigation here went beyond the purposes which justified its initiation.

In this case, the purpose of the detention was strictly limited by Art. 6687b, Sec. 13, V.A.C.S., and was accomplished when Officer Franks was shown the valid operator’s license. Officer Holloway’s examination of the inspection sticker and the interior of the car clearly went beyond the purpose for which the stop was made. (Art. 6701d, Sec. 140, V.A.C.S., concerning inspection stickers, does not permit detention as does Art. 6687b, Sec. 13). The scope of an investigation cannot exceed the purposes which justified its initiation. Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975).

The case of Black v. State, supra, involved a similar expansion of the scope of Art. 6687b when the detaining officer, after ascertaining the driver’s possession of a valid license, went looking in the car for registration papers. The sight of a pistol in plain view and the subsequent discovery of marihuana were beyond the purpose of the initial investigation. This Court’s holding to the contrary in Black v. State, supra, is overruled.

Likewise the officers’ investigation went beyond that authorized by Art. 6687b in this case. The discovery of the pistol and subsequent events were therefore “fruits of the poisonous tree.” Wong Sun v. United States, supra.

For these reasons, the judgment is reversed and the cause remanded.

DOUGLAS, J., dissents.

CONCURRING OPINION ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

The majority denies the state’s motion for leave to file a motion for rehearing without written opinion. The writer was not a member of this Court when the original opinion was handed down. Therefore the following remarks concern my views on the issues raised.

The burden of proof is on the State to establish valid legal grounds for any involuntary detention of one’s person. Terry v. Ohio, 396 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.). To legally justify a stop under Sec. 13 of Art. 6687b, V.A.C.S., the burden is on the State to prove that the actual purpose of the stop is to determine whether the operator has a driver’s license. The State clearly failed to satisfy said burden. This being so, unless the proof factually shows suspicious circumstances or conduct to have been brought to the attention of the officer, visually or through report, which would reasonably motivate a diligent officer to stop appellant to procure information or an explanation, said stopping of appellant was an unlawful violation of his Fourth and Fourteenth Amendment rights and the evidence procured as a direct result of said unlawful stop must be excluded under the doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

If classified according to a numerical scale of probative evidence of suspicious conduct or circumstances, the fact that an automobile operated on a public street bears an out of county license plate would rate zero. The fact that an operator of a motor vehicle is operating same twenty miles per hour within a city would rate zero. The officer’s conclusion that appellant seemed to be conscious of the officer’s presence and cautious by reason thereof, even if deemed factual, would rate another zero. Obviously, the total of the State’s evidence of suspicious conduct and circumstances is zero.

The doctrine of “Temporary Investigative Detention” must not be permitted by this Court to be used as a pretext or factually unjustified restriction on the individual’s freedom of movement. Such doctrine should be inelastically held by this Court to require the existence of factually suspicious circumstances or conduct as an absolute prerequisite to the right of an officer to do so.

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The majority denies the State’s motion for leave to file a motion for rehearing. The opinion reversing the conviction relies in a large part on Pruitt v. State, 389 S.W.2d 475 (Tex.Cr.App.1965), which has been overruled in Onofre v. State, 474 S.W.2d 699 (1972). The majority stresses that there was no probable cause for an arrest. No probable cause is required before an officer can stop a motorist even if the detention is for a license check. There is a distinction between detention and an arrest.

The worst part of the majority opinion is the dictum that an officer stopping someone legally cannot look inside an automobile. The majority writes: “The scope of an investigation cannot exceed the purposes which justified its initiation.” The majority also overrules Black v. State, 491 S.W.2d 428 (Tex.Cr.App.1973), which held that where an officer legally stopped a motorist to determine if he had an operator’s license a pistol which was in plain view in the car was admissible in evidence. After the majority opinion, officers cannot for their own protection take a pistol which is in plain view after a car has been legally stopped because the sight of the pistol is illegal, under the rule that “[t]he scope of an investigation cannot exceed the purpose which justified its initiation.” Now an officer cannot shine a flashlight into a car that has been legally stopped. If he does so he cannot testify about what he sees. If an officer sees a murder victim between the seats of a car, the apparent reasoning of the majority would be that the officer could not testify about finding the body because the detention was for a license check. Would the same rule apply if an officer sees a murder being committed in a car?

A good rule heretofore followed by this Court is that an officer may take contraband which is in plain view if he has a right to be where he is. See Valdez v. State, 472 S.W.2d 754 (Tex.Cr.App.1971). That rule, based on reason and common sense, should not be set aside.

The motion for rehearing — should_be granted and the judgment should be af-' firmed.


author: DAVIS, Commissioner.

text:
    Larry Lee ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 54204.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Roy E. Jerue, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell, Tyler Moore, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for operating a motor vehicle without the consent of the owner. Trial was before the court upon a plea of guilty and punishment was assessed at eight years.

In his sole ground of error, appellant contends that the indictment was defective for failure to aver all of the elements of the offense.

The pertinent portion of the indictment avers that appellant on or about February 26, 1976, did then and there unlawfully,

“intentionally and knowingly operate a motor propelled vehicle owned by A. R. Price, hereafter styled the Complainant, without the effective consent of the Complainant.”

V.T.C.A., Penal Code, Sec. 31.07, “Unauthorized Use of a Vehicle,” provides:

“(a) A person commits an offense if he intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.”

Without specifying what element of the offense is omitted from the pleading, appellant generally urges that under Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590, all elements of the offense must be alleged.

We find that the indictment herein charges the offense in the terms of the statute, averring all of the elements set forth in Sec. 31.07, supra, and is sufficient to give adequate notice of the offense charged. See Baldwin v. State, Tex.Cr.App., 538 S.W.2d 109; American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598.

We reject appellant’s contention that the indictment is defective.

The judgment and sentence recite that appellant is found guilty of the offense of unlawfully, intentionally and knowingly operating a motor propelled vehicle without the consent of the owner as charged in the fourth and fifth counts of the indictment. The record reflects that the indictment contained five counts and at trial the State announced, “the State wishes to drop all the counts except the fourth count of the indictment,” and that appellant entered his plea of guilty thereto. Consequently, the judgment and sentence are reformed to reflect that appellant is found guilty of unlawfully, intentionally, and knowingly operating a motor propelled vehicle without the consent of the owner as charged in the fourth count of the indictment.

As reformed, the judgment is affirmed.

Opinion approved by the Court.


author: DOUGLAS, Judge.

text:
    Ex parte David Allen KERR. Ex parte Earl Edward KERR, Jr.
    Nos. 54246 and 54247.
    Court of Criminal Appeals of Texas.
    April 6, 1977.

      Tommy M. Gumfroy, Gruver, for David Allen Kerr.
    L. Bruce Roberson, Perryton, for Earl Edward Kerr, Jr.
    Stephen F. Cross, Dist. Atty., and Dale W. Elliott, Asst. Dist. Atty., Borger, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

These are appeals from orders in a habeas corpus proceeding seeking the reduction of bail after indictment but before trial. Both were charged with aggravated assault upon a peace officer. Both were, and still are, on parole from the Texas Department of Corrections.

The father of the appellants testified that they could not make bail in the amount of $100,000 which had been assessed by the court but that each could make bail in the amount of $10,000.

The evidence does not show the circumstances surrounding the crime and there are no mitigating circumstances shown.

The testimony about their ability to make bail is not the sole criterion in setting bail. Ex parte Runo, 535 S.W.2d 188 (Tex.Cr.App.1976); Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr.App.1974).

We hold that under the circumstances of these cases the bail is excessive and it is hereby reduced and is set in the sum of $20,000 each.