text:
    In the Matter of the ESTATE of Evelyn D. McDOUGAL, Deceased.
    No. 1020.
    Court of Civil Appeals of Texas, Tyler.
    May 26, 1977.
    Rehearing Denied June 23, 1977.
    Henry W. Sebesta, Jr., San Antonio, for appellant.
   McKAY, Justice.

This is an appeal from a judgment denying probate of a codicil to the will of Evelyn D. McDougal, deceased. In an uncontested action brought by appellants seeking the probate of decedent’s will and of a codicil dated December 17, 1975, the probate court admitted the will to probate but refused to probate the codicil, holding that the codicil had not been attested by two witnesses in that such witnesses had signed only the self-proving affidavit but not the codicil itself. It is from that order this appeal arose.

Appellant brings one point of error which states: “The probate court erred in refusing to admit the codicil of December 17, 1975, to probate because the dispositive provisions and the self-proving affidavit were intended to be and constituted an integrated document which complied with all the requirements of a valid codicil.”

On December 17,1975, Evelyn McDougal, deceased, executed a codicil to her will, substituting a new beneficiary. The document consisted of three attached pages. The first page and the page numbered “-2-” contained the dispositive provisions and a paragraph acknowledging that the testatrix signed in the presence of the witnesses, Evelyn H. Johnson and Iva Gray Driggers. Below these provisions, near the bottom of the second page, is Evelyn McDougal’s signature. No witness signatures appear on this page. On the third attached page is typed a self-proving affidavit conforming with the provisions of Section 59, Tex. Prob. Code Ann. (1956). This paragraph is followed by the signatures of the testatrix and the two witnesses, Evelyn H. Johnson and Iva Gray Driggers. Below the signatures is the attestation statement of the notary and the notarial seal.

In the uncontested action seeking to probate the codicil the witness Iva Driggers testified in open court and the witness Evelyn Johnson submitted an affidavit. Both swore that the testatrix signed the disposi-tive provisions and the affidavit in the witnesses’ presence; that they each signed below the affidavit in the presence of the testatrix and each other; that the testatrix had asked them to witness her codicil; that they considered the three fastened, consecutively numbered pages to be one document; that in affixing their signatures on the third page they intended to — and believed they did — witness and attest to the testatrix’s signing of her codicil. Both witnesses swore that they recognized the three-page instrument as the one they and the testatrix had signed on December 17, 1975. They said that they recognized the signatures and the dispositive provisions as the same and that nothing was altered. They testified that they observed no undue influence upon the testatrix when she signed the codicil.

Appellant contends that even though the will portion of the three-page instrument containing dispositive provisions and a self-proving affidavit did not contain the signatures of two witnesses as required by Section 59 of the Probate Code, it constituted a single integrated document. Therefore, appellant argues that the witnesses’ signatures following the affidavit were also sufficient attestation of the will. We disagree. The well-settled law in regard to Section 59 is that the self-proving affidavit is neither merged in the will nor does it amount to a republication of the executed will and has only the effect of authorizing the substitution of affidavits in lieu of testimony offered before the court. In Re Price’s Estate, 375 S.W.2d 900, 903 (Tex.1964); McGrew v. Bartlett, 387 S.W.2d 702, 704-705 (Tex.Civ.App.-Houston [1st Dist.] 1965, writ ref’d). The execution of the will is a condition precedent to the execution of the self-proving affidavit. Boren v. Boren, 402 S.W.2d 728, 729 (Tex.1966); McGrew v. Bartlett, supra.

Without the signature of two witnesses to the signature of the testatrix to the codicil, the codicil did not conform to the requisites of a will as set out in Section 59 of the Probate Code. The Boren and McGrew cases have been consistently followed. McLeroy v. Douthit, 535 S.W.2d 771, 773 (Tex.Civ.App.-Fort Worth 1976), writ ref’d n.r.e. per curiam, 539 S.W.2d 351 (Tex.1976); Cherry v. Reed, 512 S.W.2d 705, 707 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref’d n.r.e.); In Re Pettengill’s Estate, 508 S.W.2d 463, 465 (Tex.Civ.App.-Amarillo 1974, writ ref’d n.r.e.); Cooper v. Liverman, 406 S.W.2d 927, 932-933 (Tex.Civ.App.-Texarkana 1966, no writ). We do not think the present case is distinguishable from any of the above cases. Appellant’s point of error is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    B. W. GIBSON et al., Appellants, v. KOUNTZE INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 7852.
    Court of Civil Appeals of Texas, Beaumont.
    May 26, 1977.
    Rehearing Denied June 16, 1977.

      B. F. Whitworth, Jasper, James A. Pak-enham, Houston, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellants.
    Robert Q. Keith, Beaumont, for appellees.
   STEPHENSON, Justice.

This is a suit by fifteen property owners against the members of the Board of Equalization, the members of the Board of Trustees and the Tax Assessor-Collector of the Kountze Independent School District. The suit is a direct attack upon the assessment and levy of ad valorem taxes by the School District for the year 1975 upon plaintiffs’ properties in the category of “rural land” and “timber land”. Trial was by jury, and judgment was rendered upon the verdict denying plaintiffs all relief.

A brief statement as to the position taken by plaintiffs is that the School District put into effect for the tax year 1975 a program of re-appraisal and re-evaluation of rural lands without any attempt to re-appraise or re-evaluate other categories of property in the District. We quote from plaintiffs’ brief as follows:

“The thrust of plaintiffs’ complaint is not that their lands are overvalued for tax purposes; that, in our opinion, is not the test of discrimination, illegality and unconstitutionality. Our complaint is that no effort was made by defendants to equalize the values placed on the other properties with the values placed on rural lands of plaintiffs and others, and that such action resulted in plaintiffs and other owners of rural land having to bear more than their fair share of the burden of operating the School District. This, in our opinion, is the test of discrimination, illegality and unconstitutionality. This is a substantial right that may be asserted and enforced in the Courts.”
A part of the jury findings are, in substance, as follows:
(10) That the Board of Equalization did not fail to equalize the tax roll for the year 1975 as nearly as possible;
(13) That the School District’s tax roll does not assess plaintiffs’ rural land at substantially higher values than real estate in the City of Kountze, relative to each other;
(15) That the School District’s tax roll does not assess plaintiffs’ rural land at substantially higher values than improvements on rural land, relative to each other;
(17) That the School District’s tax roll does not assess plaintiffs’ rural land at substantially higher values than real property subdivisions outside the City of Kountze, relative to each other.
(19) That the School District assessed the corporate plaintiffs’ property at substantially the same percent of its market value as was fixed on the great bulk of the remainder of the property on the tax roll;
(20) That the Kirby Lumber Corporation land and timber had a fair cash market value in the School District of not less than $189 per acre on January 1, 1975;
(21) That the Champion International Corporation land and timber had a fair cash market value in the School District of not less than $168 per acre on January 1, 1975;
(22) That Southland Paper Mills Corporation land and timber had a fair cash market value in the School District of not less than $169 per acre on January 1, 1975;
(23) That Temple-Eastex land and timber had a fair cash market value in the School District of not less than $169 per acre on January 1, 1975.

In its brief the School District admits that a plan for re-evaluation of the entire district was begun in 1975 but not completed. The result was an increase in the assessed values of plaintiffs’ land and no general increase on property in the City' of Kountze and rural subdivisions. However, the School District denies the result was discrimination, because it is urged that the rural lands had been undervalued in previous years. It is argued that a disproportionate increase in taxes does not necessarily result in a disproportionate assessment; that the discrimination can be proven only by comparing the result as it relates to true market value.

To be successful in this appeal, plaintiffs must show the School District tax plan resulted in plaintiffs’ paying more than their fair share of the taxes. They must show the plan would discriminate against them by assessing their properties at a greater percentage of the true value than the percentage assessed for the properties in other categories. In the answers to special issues 13,15,17, and 19, as set out above, the jury findings were to the contrary. Plaintiffs have points of error that those findings have no support and insufficient support in the evidence. We consider only the evidence favorable to the jury findings in passing upon the no-evidence points, and the entire record in passing upon the insufficient-evidence points.

It is first noted that in the answers to special issues 20, 21, 22, and 23, the jury found the cash market value of the land and timber of the four corporate plaintiffs as of January 1, 1975, to be not less than certain figures varying from $168 to $189 per acre. It is thus apparent that the jury findings do not establish the cash market value of either the plaintiffs’ properties or the other categories of properties on the tax roll.

Bear in mind that plaintiffs had to secure jury findings that, under the plan, plaintiffs’ properties were assessed at a higher percentage of true value than the properties assessed in other categories. In the absence of such jury findings, to secure a rendition of this case, they must show that contention was established as a matter of law; to secure a remand of this case, plaintiffs must show that the contrary jury findings were clearly wrong or manifestly unjust. They have failed to make either showing.

There is much evidence in this record that property in the City of Kountze was economically depressed, that land in the rural areas had experienced substantial increase in market value, and that the rural tax assessment had been too low in past years.

Plaintiffs called many witnesses, including two licensed real estate agents, but they failed to offer testimony as to the cash market value of their properties. All denied they had an opinion as to such value. The person employed by the School District to appraise the rural land was called by plaintiffs as an adverse witness. He testified he made a mass appraisal and did not go on each individual tract and count the trees. He first classified the land as either open or timberland and within the timberland as practically no merchantable timber, some on it or a whole lot on it. The bare land was appraised at $150 per acre, and the above three classifications added to the bare land value at $100, $200, and $300 per acre. This witness prepared a written appraisal for the School District which plaintiffs offered in evidence. This written appraisal showed the total number of acres owned by each of the corporate plaintiffs and the total appraised value of each of their properties. In their brief, the plaintiffs have divided the total acreage into the total value, and the result is the four figures the jury found the cash market value to be not less than, as shown above in the jury findings. Plaintiffs argue that such values are conclusive and the School District is bound by them. It is admitted the assessed values of the lands of these corporate plaintiffs are 60 percent of those market values set forth in the jury findings. Even if we assume, arguendo, that plaintiffs thereby established the cash market value of their lands and a 60 percent assessment rate, this does not in itself prove the discrimination alleged by them. There are no findings that the assessed rates were lower on other categories of properties and that issue was not proven as a matter of law.

Plaintiffs offered evidence to show the assessment of their rural land was increased in value and other categories were not increased. That in itself does not prove that a higher assessment rate resulted on rural properties. Plaintiffs offered evidence, by an expert witness, to show he made a study of sales of 38 parcels of the City of Kountze and the subdivision property, which reflected such properties, was assessed at 32.77 percent of market value. On the other hand, there is much evidence from expert witnesses that in prior years the rural land had not been on a fair ratio compared to local property and that taxes paid in previous years on rural land were not as much as they should have been. Real estate brokers testified that there had been a reduction in values in the City of Kountze while the values of rural land were going up. One of plaintiffs’ witnesses testified on cross-examination that one of the corporate plaintiffs’ lands had an average of $267.91 worth of standing timber per acre. An expert witness called by the School District testified as to a survey made by him as to the percentage of values of the individual plaintiffs’ lands. His testimony showed the assessed values of those rural tracts to be an average of 31 percent of his appraised market values.

Justice Guittard, of the Dallas Court of Civil Appeals, discusses most of the questions of law arising on the appeal before this court in Lancaster Independent School District v. Pinson, 510 S.W.2d 380 (Tex.Civ. App.—Dallas 1974, writ ref’d n. r. e.). It is there stated that the plaintiffs must show that the plan would discriminate against them by deliberately assessing their property at a greater percent of its true value than the percentage assessed for other properties subject to the tax. Citing City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 417 (1954); Atlantic Richfield Co. v. Warren Ind. Sch. Dist., 453 S.W.2d 190, 198 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.), that opinion goes on to make the following statement:

“If the plan is attacked on the ground of inequality of assessment, however, proof of actual market value of plaintiff’s property is necessary, since without such proof no discrimination is established.” 510 S.W.2d 383 (Emphasis ours)

See Montgomery County v. Humble Oil & Refining Co., 245 S.W.2d 326, 335 (Tex.Civ.App.—Beaumont 1951, writ ref’d n. r. e.).

Plaintiffs failed to secure jury findings that would support their contention that their rural properties were assessed at a higher percentage of true market value than properties in other categories. There is evidence to support the jury findings to the contrary, and these points of error are overruled.

Plaintiffs have a point of error that the trial court erred in permitting the Tax Assessor-Collector to testify that certain rural lands of some of the plaintiffs were worth more than the 100 percent values assigned by the Board of Equalization. Plaintiffs argue the School District is es-topped to offer such evidence.

This court held to the contrary in Montgomery County v. Humble Oil & Refining Co., supra at 336. It is there held that even though the trial court cannot substitute its ideas of property valuations for valuations made by a Board of Equalization, it may hear evidence as to the true value of a litigant’s property when it is necessary to determine the questions of discrimination or harm. All points of error are overruled.

AFFIRMED.


text:
    Lawrence G. FRASER, Appellant, v. Billy B. GOLDBERG, Appellee.
    No. 7944.
    Court of Civil Appeals of Texas, Beaumont.
    May 26, 1977.
    Rehearing Denied June 23, 1977.

      Stephen W. Hanks, Houston, for appellant.
    Charles N. Goldberg, Houston, for appel-lee.
   STEPHENSON, Justice.

Plaintiff, Lawrence Fraser, sued defendant, Billy Goldberg, for damages for breach of contract to purchase certain stock. Trial was before the court, and judgment was for defendant. Plaintiff’s single point of error is that the trial court erred in failing to file findings of fact and conclusions of law.

The record before us shows plaintiff did everything required of him under Tex.R. Civ.P. 296 and 297. Therefore, was it reversible error in this case for the trial judge to fail to comply with those rules? The leading case on this question is Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117, 120 (1944). After holding these rules (296 and 297) to be mandatory, this statement is made:

“In spite of the above rules, a failure of a trial court to prepare and file findings of fact or conclusions of law under Rule 296, or additional or amended findings of fact or conclusions of law under Rule 298, will not call for a reversal of the trial court’s judgment, if the record before the appellate court affirmatively shows that the complaining party has suffered no injury in the premises. San Antonio Water Works Co. v. Maury & Co., 72 Tex. 112, 12 S.W. 166.”

A careful reading of all of the cases listed in Shepard’s Texas Citations: Cases (1974) after Wagner v. Riske, supra, demonstrates that no court has given any indication as to how an appellate court should determine whether or not a complaining party has or has not suffered injury. We proceed in an attempt to write specifically on this subject.

We begin with the proposition that it is not reversible error as a matter of law for the trial court to completely fail to file findings of fact or conclusions of law. Apparently no court in this state has gone that far. Most of the cases listed involve the situation in which the trial judge filed the findings and conclusions, but was late. None of those cases found the error to be reversible.

An early Supreme Court decision in Barfield v. Emery, 107 Tex. 306, 177 S.W. 952 (1915), shows the trial court filed findings, but no conclusions. Without stating how it reached the conclusion, the Court stated that it did not appear that the omission of the trial judge to duly file his conclusions prevented a proper presentation of the questions involved in the appeal, or that it could have operated to the prejudice of the appellant in the Court of Civil Appeals.

In a well written opinion by Justice Keith in Beneficial Finance Co. of Austin v. Williams, 539 S.W.2d 90 (Tex.Civ.App.—Beaumont 1976, writ dism’d), after conceding that the appellant had complied with all the provisions of the Rule and no findings or conclusions were filed, it was noted that we had a complete statement of facts and exhibits and concluded that the record affirmatively showed the appellant had suffered no injury in the premises.

In Diaz v. Trevino, 430 S.W.2d 742 (Tex.Civ.App.—Waco 1968, no writ), the Waco Court of Civil Appeals first discussed the evidence, and through some unexplained reasoning found the appellant had suffered no injury as a result of the trial court’s failure to file findings and conclusions.

We have come to the conclusion that Tex. R.Civ.P. 434 gives this court more precise information as to how to make a determination of the problem before us, than any of the eases we have studied. It is best covered by that part of the rule that states that no judgment shall be reversed on appeal, and a new trail ordered in any cause, on the ground that the trial court had committed an error of law which was such as probably prevented the appellant from making a proper presentation of the case to the appellate court.

An analysis of what transpired in the trial court is as follows: Plaintiff sued on a written contract under the terms of which he agreed to sell and defendant agreed to buy certain bank stock. The only defense raised by defendant’s pleading is that there was no consideration for such contract. After hearing the evidence, the trial court rendered judgment that plaintiff take nothing. In his amended motion for new trial the plaintiff stated that defendant failed to sustain his burden of proof on the issue of consideration, “the only defense raised by Defendant”. A reading of the less than sixty-three pages of statement of facts bears out that statement in the motion for new trial that the only issue raised was the lack of consideration. In fact, in plaintiff’s brief, the statement is again made: “The only defense interposed by Defendant in pleading or at trial was lack of consideration.”

Undoubtedly, there are situations in which findings and conclusions are necessary in order for the appellant to present his case. In factually complicated situations in which there are two or more possible grounds for recovery or defense, an undue burden would be placed upon an appellant. Having to try to guess the reason or reasons the trial judge ruled against him should not be required. However, in the case before us, only one defense was plead, and no other defense was raised by the evidence. Further, the appellant recognized the fact that there was only one issue by making that statement in his amended motion for new trial. There was little or no dispute as to the factual situation. We are of the opinion that the record before us shows affirmatively that appellant suffered no injury by reason of the trial court’s failure to make findings and conclusions. Appellant based his attack on the judgment below, partly on the ground that there was consideration, the only implied finding that defendant could rely upon as being raised by the pleadings and evidence. Under the factual situation before us, we find the plaintiff was not prevented from making a proper presentation of the only issues in this case before this appellate court.

In any event, we would not reverse and remand this case for a new trial, requiring the parties to start all over with the evidence in order for plaintiff to see if he could get a favorable ruling upon a trial before a different judge. If the Supreme Court should decide plaintiff had been prevented from making a proper presentation in the appellate court, then as provided by the third paragraph of Tex.R.Civ.P. 503, the trial judge should be directed to make findings and conclusions.

Even though plaintiff states in his brief that he has only one point of error (the one discussed above), in his argument under that point he discusses the evidence as to the matter of “consideration”. The statement is then made that the judgment of the trial court is contrary to the undisputed evidence and asked that the judgment be reversed and rendered for plaintiff. Under the rule of Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), recently reaffirmed in Airway Ins. Co. v. Hank’s Flite Center, Inc., 534 S.W.2d 878 (Tex.1976), we proceed to consider that point.

Inasmuch as this is a “no-evidence” point, we consider only the favorable evidence supporting the implied finding by the court that there was no consideration for the alleged contract. The evidence in this case reveals a somewhat complicated financial transaction. Plaintiff was President of the Beltway Bank and made an agreement with a group desiring to purchase the controlling stock in that bank that he would remain as president and join with the control group in such purchase. Defendant was one of the owners of the stock who sold to the new group. The letter contract sued upon in this case was addressed to plaintiff and reads as follows:

“February 27, 1974
“Dear Larry:
In connection with the proposed sale of stock in Beltway Bank to a group represented by you as Trustee, we agree to the following:
At the time of this transaction, we will purchase from you, up to 2,000 shares of Mercantile Bank of Houston bank stock at a price of $17.00 per share and further, in connection with the above sale, make an agreement with you that we will purchase from you if you request from us, up to 2,000 shares of Guaranty National Bank stock at a price of $25.00 per share. Said purchase to be made during the first fifteen (15) days of April, 1975, with you agreeing to give us at least ten (10) days notice that you desire us to purchase same.
Yours very truly,
/S/ Robert W. Baker
Robert W. Baker /S/ Billv B. Goldberg
Billy B. Goldberg”

Such letter was signed by Robert W. Baker and defendant. Defendant testified: that he was not present during any of the negotiations between plaintiff and Baker, but was told by Baker that plaintiff wanted defendant and Baker to buy his stock in Mercantile Bank and Guaranty Bank. As an act of friendship he signed the letter. Defendant got the same price for his stock as every other shareholder including the stock that plaintiff sold to the group. Defendant understood that plaintiff was not a part of the buying group but that plaintiff was selling the stock owned by him to the group also. He was never told that plaintiff’s stock in the other two banks had to be bought or the deal would not go through. He was never paid anything to sign the letter or to agree to buy anything from plaintiff.

Accepting defendant’s testimony as to how this transaction developed, as we are required to do under this no-evidence point, that there was no connection between the Beltway Bank stock sale and the letter agreement sued upon, the evidence still establishes a contract between these parties as a matter of law. The letter set forth above constitutes an offer by defendant to purchase the stock in question. Plaintiff accepted the offer by proffering his stock within the prescribed time period and by making a draft for the agreed purchase price on defendant’s bank account. It was at the time of this acceptance that a binding contract was made between these parties. There is no evidence that the offer to buy the stock was withdrawn before it was accepted. It is not necessary for this court to determine whether or not there was consideration for the letter agreement, and we do not pass upon that question.

One of the most fundamental rules of the law of contracts is that every contract must be supported by consideration. It is also just as fundamental that the exchange of promises constitutes sufficient consideration. Cobb v. Beall, 1 Tex. 342 (1903); Clement v. Producers’ Refining Co., 277 S.W. 634 (Tex.Comm.App.1925); Border Rubber Co. v. Turney, 291 S.W. 959 (Tex.Civ.App.—El Paso 1927, no writ); Cottingham v. Harrison, 89 S.W.2d 255 (Tex.Civ.App.—Eastland 1935, writ dism’d); Liberty Mutual Insurance Company v. Martinez, 407 S.W.2d 272 (Tex.Civ.App.—El Paso 1966, no writ). See also, Hutchings v. Slemons, 141 Tex. 448, 174 S.W.2d 487 (1943), and Sunshine v. Manos, 496 S.W.2d 195, 198 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.).

The judgment of the trial court is reversed, and we render the judgment which the trial court should have rendered that plaintiff recover of and from defendant the amount of damages established, $7,000 plus interest at the rate of 9 percent per annum from the date the judgment was entered in the trial court.

REVERSED and RENDERED.


text:
    JEFFERSON CONSTRUCTION COMPANY, Appellant, v. GOODYEAR TIRE AND RUBBER COMPANY, Appellee.
    No. 7950.
    Court of Civil Appeals of Texas.
    May 26, 1977.
    Rehearing Denied June 16, 1977.
    Kyle Wheelus, Jr., Beaumont, for appellant.
    William B. Coffey, Jr., Beaumont, for appellee.
   STEPHENSON, Justice.

This is an action for indemnity and/or contribution. Trial was before the court, and judgment rendered allowing full indemnity.

Jose Negrete, an employee of Jefferson Construction Company (Jefferson), was injured while working on the premises of Goodyear Tire and Rubber Company (Goodyear). Negrete was paid his workman’s compensation and then filed an action for damages against Goodyear. The allegations in his petition included the failure to furnish him a safe place to work. Goodyear filed this third party action against Jefferson, settled with Negrete, and amended its pleadings against Jefferson to recover the amount of the settlement with Negrete.

The allegations of negligence in Neg-rete’s petition on the part of Goodyear were, in brief, as follows: Plaintiff, a pipe-fitter, while cutting a pipe with an acetylene torch, bumped a quick opening valve causing it to open and allow a highly flammable liquid to pour over Negrete’s body and catch fire. The allowance by Goodyear for the valve to be located on a line used for flammable liquid was negligence per se. Goodyear’s allowing flammable liquid to remain in the pipes in the vicinity of Neg-rete’s work was negligence per se. It is noted these allegations of acts of negligence were solely on the part of Goodyear, and not jointly with Jefferson.

The undisputed evidence shows: Jefferson had been doing maintenance work for Goodyear since 1961. From that date through December 8, 1972 (date of Neg-rete’s injury), Goodyear had issued monthly purchase orders to cover such work. The indemnity provision sued upon was contained in the purchase order dated November 29, 1972. Such purchase orders were the contracts between these parties and were mailed by Goodyear to Jefferson who would continue to work on the old monthly purchase order until the new one was received. The purchase orders are printed forms, apparently designed primarily for the purchase of goods. On the front page of the purchase order made the basis of this suit is a space into which is typed:

“Furnish supplemental maintenance labor for the month of December, 1972 as required by our Engineering Department, on the following basis: PRICE BASIS.”

Then typed into the purchase order are twelve items marked from A-L indicating how the amount of money to be due would be arrived at. The end result is that Jefferson is paid on a cost-plus basis. On the reverse side of the first page purchase order are twenty-one paragraphs in fine print under the heading “Terms and Contributions”. Paragraph 13(f) of such purchase order reads as follows:

“To the extent that this Purchase Order provides that Seller will indemnify, save harmless and defend Purchaser from liability, claims, demands or suits, it is the intention of Seller that such indemnity shall apply whether or not the liability, claims, demands or suits arise from the negligence of Purchaser.”

There is a second sheet to the purchase order made the basis of this suit which is the identical printed form as the first sheet. On the second sheet there are five paragraphs typed into the empty space, the fifth paragraph reading as follows:

“Contractor to carry public liability insurance with limits $500,000/$1,000,000 and property damage insurance with limit $100,000 including contractual coverage with respect to the ‘hold harmless’ provisions of the terms and conditions of this purchase order, and must furnish purchaser acceptable evidence thereof before commencing work hereunder.”

Jefferson’s two primary contentions on this appeal are that, first, the intention to indemnify Goodyear against the consequences of its own negligence are not clearly expressed in unequivocal terms and, second, that the indemnity provision does not give Jefferson fair notice that such was the import of such a provision. We do not find it necessary to pass upon the first contention made by Jefferson in view of the conclusion we have reached as to the second contention.

The Supreme Court of Texas in Joe Adams & Son v. McCann Construction Company, 475 S.W.2d 721, 723 (Tex.1971), makes this statement:

“Texas follows the general rule that an indemnity agreement will not protect the indemnitee against the consequences of his own negligence unless the obligation is expressed in unequivocal terms. It is not necessary for the parties to say, in so many words, that they intend to save the indemnitee harmless from liability for his own wrongs, but it is necessary for that intention to clearly appear when all the provisions of the contract are considered in the light of the circumstances surrounding its execution.” (Emphasis ours)

See also, Fireman's Fund Ins. Co. v. Commercial Stand. Ins. Co., 490 S.W.2d 818, 822-823 (Tex.1972) in which the above rule was reaffirmed.

All of the circumstances surrounding the use of this particular purchase order must be examined and considered. Goodyear and Jefferson had been doing business through the use of a monthly purchase order for about eleven years at the time of this accident. Of the 115 purchase orders that had been used, only the last eight contained paragraph 13(f). That paragraph was inserted in the purchase order without negotiations, notice, warning, or knowledge. Nothing was said about a new form being used, and the appearance of the front side of the purchase order was not changed. There is no evidence that anyone connected with Goodyear ever informed anyone connected with Jefferson that the new paragraph had been inserted. We are of the opinion and hold that Jefferson was not given fair notice that the purchase order contained the provision for indemnity.

In K & S Oil Well Service, Inc. v. Cabot Corporation, Inc., 491 S.W.2d 733 (Tex.Civ.App.— Corpus Christi 1973, writ ref’d n.r.e.), that court dealt with a situation much like the one before us. A sales order was the instrument relied upon. That court found the indemnity provision to be hidden under a heading “Terms and Conditions” surrounded by completely unrelated terms. That court held the sales order was not conspicuous as a matter of law and did not import fair notice to the indemnitor. See also, Rourke v. Garza, 511 S.W.2d 331 (Tex.Civ.App.—Houston [1st Dist.] 1974, affirmed, 530 S.W.2d 794 (Tex.1975).

The judgment of the trial court is reversed, and judgment is rendered that Goodyear take nothing from Jefferson.

REVERSED and RENDERED.


author: YOUNG, Justice.

text:
    T J SERVICE COMPANY, Appellant, v. MAJOR ENERGY COMPANY, INC., Appellee.
    No. 1202.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 31, 1977.
    Rehearing Denied June 23, 1977.

      Thos. R. Hartnett, III, Dallas, for appellant.
    William R. Anderson, Sorrell, Anderson & Sorrell, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

In the form of a sworn account, T J Service Company, brought suit to recover for services rendered on wells owned and operated by Major Energy Company, Inc., along with reasonable attorney’s fees and interest. Prior to trial defendant tendered the full amount of the debt in controversy into the registry of the court. After a non-jury trial, the court rendered a take nothing judgment and denied plaintiff’s plea for attorney’s fees and interest. Plaintiff appeals.

On the request of plaintiff, the trial court filed the following findings of fact and conclusions of law:

“FINDINGS OF FACT
1.a. Defendant, Major Energy Company, Inc., tendered to Plaintiff, T J Service Company, prior to the trial and during the trial, the sum of Six Thousand Eight Hundred Seventy and 60/100 Dollars ($6,870.00).
b. Such sum of Six Thousand Eight Hundred Seventy and 60/100 Dollars ($6,870.60) tendered by Defendant does represent the entire amount due Plaintiff from the Defendant for all services rendered by Plaintiff to Defendant.
c. Defendant has placed in the registry of the Court the sum of Six Thousand Eight Hundred Seventy and 60/100 Dollars ($6,870.60).
2. Defendant did not agree, in writing, to pay interest to Plaintiff.
3. The attorney’s fee incurred by Plaintiff is One Thousand Two Hundred Fifty and No/100 Dollars ($1,250.00), but same was not proved to be reasonable in Nueces County, Texas.
CONCLUSIONS OF LAW
1. Defendant is entitled to a take nothing Judgment.
2. Plaintiff is not entitled to any interest from Defendant prior to date of Judgment by reason of its pleadings and proof.
3. Plaintiff is not entitled to recover any sums for attorney’s fees. Under facts presented by Plaintiff, such Plaintiff may not recover attorney’s fees under the provisions of Article 2226 of Vernon’s Annotated Texas Civil Statutes.
4. Plaintiff is entitled to costs incurred in this action after it was transferred from Dallas County, Texas, to this Court.”

Plaintiff in its point 1 contends that the trial court erred in ruling that it was not entitled to attorney’s fees under Tex.Rev. Civ.Stat.Ann. art. 2226 (Supp.1976). Defendant asserts that attorney’s fees may not be awarded under Article 2226 from a take nothing judgment because plaintiff did not “finally obtain judgment for any amount” of the claim. The statute, as amended, reads:

“Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured or suits founded upon a- sworn account or accounts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such persons or corporation, he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees. The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney’s fees. The court, in non-jury cases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney’s fees without the necessity of hearing further evidence.” (Emphasis supplied.)

The trial court was correct in ruling that plaintiff was not entitled to attorney’s fees under Article 2226 as we will demonstrate. In order to recover attorney’s fees under Article 2226, the claim must fall into one of the seven categories enumerated in the statute. The factual nature of this case requires consideration of only four of those categories; that is, whether the claim (1) is founded upon a sworn account or accounts, or constitutes (2) personal services rendered or (3) labor done or (4) material furnished. Appellant admits that this is a suit on a sworn account. In Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78 (1958), the Supreme Court noted:

“. . .It has been held that a sworn account is defined according to its popular sense and applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created ... It does not mean transactions between parties resting upon special contract. . . .”

The record here does not evidence a transaction whereby title to personal property passed from plaintiff to defendant and the transaction is not, therefore, of the type to which a sworn account applies.

The Supreme Court in Meaders also noted that a contract to drill an oil well is not included within the definition of a sworn

account. On similar reasoning this Court has barred the use of this statute to recover on well reworking operations. Vahlsing Christina Corporation v. Ryman Well Service, Inc., 512 S.W.2d 803, 815 (Tex.Civ.App.—Corpus Christi 1974, no writ). The development of the facts herein do not disclose the nature of the transaction involved. It does not appear from the record whether plaintiff was reworking wells for defendant even though the petition would seem to so indicate. A number of invoices contained in plaintiff’s petition seek payment for “rig” and “pump” time. It is a fair inference from these allegations that such work was rendered in drilling and reworking operations. The pleadings and proof do not show, however, that the suit is founded upon a sworn account within the meaning of Article 2226. Tenneco Oil Company v. Padre Drilling Company, 453 S.W.2d 814, 818 (Tex.Sup.1970); Mathews Construction Company, Inc. v. Jasper Housing Construction Co., 528 S.W.2d 323, 326 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.). We hold, therefore, that plaintiff cannot rely on the sworn account provision of Article 2226.

For similar reasons, the plaintiff may not rely on the remaining categories of Article 2226. The contract between plaintiff and defendant is not before us. It is impossible to determine the nature of the rights and obligations of the parties to this contract. Numerous trial exhibits have not been brought up on appeal. A determination of whether the claim asserted is within the three remaining classes specified in Article 2226 requires our careful examination of well developed facts. The facts are sparse in the record here. See Tacker v. Phillips, 473 S.W.2d 1 (Tex.Sup.1971); George Linskie Company v. Miller-Picking Corporation, 463 S.W.2d 170, 173 (Tex.Sup. 1971); Tenneco Oil Company v. Padre Drilling Company, supra; Alpert v. Jarrell Carpentry Company, 510 S.W.2d 136, 139, 140 (Tex.Civ.App. — Dallas 1974, no writ). It is not clear what services were performed, labor done or material furnished or why and under what conditions. On the other hand, the trial court found that plaintiff was not entitled to attorney’s' fees under Article 2226 and this finding supports both the conclusion of law and the judgment of the trial court. On appeal, it is presumed that the trial court has found against appellants on all theories presented. See Guest v. Bizzell, 271 S.W.2d 472, 476-7 (Tex.Civ.App.—Eastland 1954, writ ref’d); MacFarlane v. Davis, 147 S.W.2d 528 (Tex.Civ.App.—Beaumont 1940, no writ). Under facts presented here the plaintiff may not recover attorney’s fees under the provisions of Article 2226. In view of the foregoing, we do not deem it necessary to determine whether plaintiff’s attorney’s fees as rendered were reasonable. Plaintiff’s point of error 1 is overruled.

On the basis of the record before this Court, the trial court properly disallowed interest to plaintiff under Tex.Rev. Civ.Stat.Ann. art. 5069-1.03 (1971). This subsection of Article 5069 provides:

“When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable; and on all open accounts, from the first day of January after the same are made.”

We have already noted that this is not a suit on a sworn account. Vahlsing Christina Corporation v. Ryman Well Service, Inc., supra; McDaniel v. National Steam Laundry Co., 112 Tex. 54, 244 S.W. 135, 137 (Tex.Com.App.1922, opinion adopted). The appellant must therefore plead and prove a “written contract, ascertaining the sum payable.” Plaintiff has pled that certain invoices contained provisions setting the interest rate:

Net due on receipt of invoice. After thirty (30) days a credit charge will be debited on unpaid invoices at 1% per month, from invoice date.

The trial court, however, found that the defendant did not agree, in writing, to pay interest to plaintiff and plaintiff has not challenged this finding of fact. Plaintiff asserted in the trial court and argues on appeal that he is entitled to the legal rate of interest since no specified rate of interest was agreed to by the parties. Defendant argues that the failure to plead for the legal rate of interest does not give him fair notice of the claim asserted. Plaintiff’s petition contained a prayer for general relief. Under the liberal rules of pleading, a prayer for general relief is ordinarily sufficient basis for an award of prejudgment interest. Liberty Mutual Insurance Company v. General Insurance Corporation, 517 S.W.2d 791, 799 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.); Dunnam v. Dillingham, 345 S.W.2d 314 (Tex.Civ.App.—Austin 1961, no writ; See 33 Tex.Jur.2d § 19 p. 90 (1962); Cage Brothers v. McCormick, 344 S.W.2d 203, 207 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.). Nevertheless, neither the written contract between these parties nor the alleged invoices were shown to be introduced at the trial court level and are not contained in the statement of facts and accompanying exhibits. The record before us does not disclose the facts necessary to an award of prejudgment interest in that there is no written contract ascertaining the sum payable nor is there any open account. Article 5069-1.03, supra; Alamo Express, Inc. v. Browning Mineral & Ore Company, 457 S.W.2d 588, 591 (Tex.Civ.App.—San Antonio 1970, writ ref’d n. r. e.). Appellant’s point 2 is overruled.

The judgment of the trial court is affirmed.


text:
    Feliciano G. RODRIGUEZ, Appellant, v. B-R DREDGING COMPANY, INC., Appellee.
    No. 1146.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 31, 1977.
    Rehearing Denied June 23, 1977.

      William R. Edwards, Corpus Christi, for appellant.
    S. E. Dyer, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

Under the Jones Act, 46 U.S.C. § 688, and under the general maritime law, Feliciano G. Rodriguez, brought suit as a seaman for bodily injuries sustained when he fell through an open deck hatch or manhole on the tender boat, Burley Koen, while employed by the defendant, B-R Dredging Company, Inc. As the basis of his cause of action, Rodriguez alleged negligence and unseaworthiness, and negligence and unseaworthiness per se for the violation of statutory duties imposed by the Corps of Engineer safety regulations. Dredging Company answered denying any unseaworthiness or negligence, disputing the applicability of the safety regulations and alleging that plaintiff was contributorily negligent. Pri- or to trial, Dredging Company specially excepted to those parts of Rodriguez’s petition dealing with inadequate lighting. The trial court sustained those exceptions.

Trial was to the jury which found the defendant negligent, the vessel unseawor-thy, the plaintiff 55% contributorily negligent, and the damages to be $150,000.00. After applying the comparative fault doctrine of the Jones Act and allowing credits for maintenance payment, the trial court reduced the award to $55,388.02 and entered judgment for the plaintiff. The plaintiff appeals from that judgment.

At the time of this accident, January 24, 1974, Rodriguez was the captain of the tender boat, George Pospisil. The George Pospisil and the Burley Koen were assigned to the dredge, Bill Bauer, while it was working in the Corpus Christi Ship Channel under a contract between T. J. James and Company, Inc., as prime contractor, and Dredging Company, as subcontractor. The contract between James and Dredging Company was a subcontract under a prime contract between James and the U.S. Army Corps of Engineers. Both of these tender boats were tied to the starboard side of the Bill Bauer on the day of the accident.

Rodriguez and his deck hand, Domingo Zamarripa Reyna, were working the 12:00 midnight until 12:00 noon shift on the day in question and were preparing to go ashore to pick up the day crew. This transportation of the day crew was one of the duties assigned Rodriguez as the captain of the George Pospisil. The George Pospisil would not start, however, and Rodriguez dispatched Reyna to locate a set of forty-foot jumper or booster cables. He was unable to locate the cables aboard the dredge. Whereupon Rodriguez and Reyna then began a systematic search of the dredge and its tender boats eventually coming to the Burley Koen. They arrived at the Burley Koen between 5:30 and 6:00 a.m. It was still dark and somewhat foggy. Between them they had one flashlight for their search, although others were available.

They boarded the Burley Koen from the port side with Rodriguez leading. In their search for the cables, they passed the wheelhouse without turning on the deck and running lights of the Burley Koen and proceeded down the side of the vessel to the stern. Reyna was following Rodriguez about a foot to a foot and one-half behind and was shining the flashlight on the deck in search of the cables. When they reached the stern, Reyna shined the flashlight toward the cabin and at that moment Rodriguez stepped into an open hatch or manhole located on the starboard side of the stern deck of the Burley Koen; by this unfortunate action he received the injuries he complained of. Neither Rodriguez nor Reyna saw the hatch or manhole prior to the accident. It is undisputed that the hatch or manhole was completely uncovered and unguarded when the accident occurred and that the cover had been removed by employees of Dredging Company.

Appellant has brought forward six points of error. In point 1 he maintains that the trial court erred in submitting special issues about his contributory negligence and in reducing his recovery based on the jury’s answers to those special issues.

In that regard, this case was submitted to the jury on eighteen special issues. The jury found in issues 1 through 12 negligence of Dredging Company and unseaworthiness of the Burley Koen. The jury further found: 13) that Rodriguez’s failure to turn on the Burley Koen deck and mast lights was negligence; 14) that such failure caused or contributed to the occurrence in question; 15) that Rodriguez’s failure to use a flashlight was negligence; 16) that such failure caused or contributed to the occurrence in question; 17) that 55% of Rodriguez’s injuries was attributable to his negligence; 18) that Rodriguez’s damages were $150,000.00. Based on that verdict the trial court in the judgment reduced by 55% the amount awarded to Rodriguez by the jury.

The appellant says that the submission and reduction were erroneous because his injuries were legally caused by the appel-lee’s violation of a statutory duty. The basis of the appellant’s argument is the adoption in the Jones Act, 46 U.S.C. § 688, of the provisions in the earlier enacted Federal Employers’ Liability Act, (FELA), 45 U.S.C. § 51 et. seq. The Jones Act extends to seamen all the rights and remedies provided railroad workers under the FELA.

Section 53 of the FELA provides in part as follows:

. . . Provided, that no such employee (of a common carrier by railroad) who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

This section of the FELA has been held to apply to violations of the Safety Appliance Act, the Boiler Inspection Act, and the Hours of Services Act. San Antonio & Aransas Pass Railway Company v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110 (1916); Baltimore & Ohio Railroad Company v. Wilson, 242 U.S. 295, 37 S.Ct. 123, 61 L.Ed. 312 (1916); Miller v. Gulf, Mobil & Ohio Railroad Company, 386 S.W.2d 97 (Sup.Ct.Mo.1964). In practice, the application of these acts to the FELA has meant that where an employee subject to the FELA is injured or killed because of a violation of one of these acts, the employer will be held liable and damages are not to be diminished in proportion to the employee’s degree of fault. The Jones Act incorporates the FELA and its decisional law, and consequently makes all rights enjoyed by railroad employees under the FELA available to seaman. Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951). The question has arisen here whether violations of analogous maritime safety statutes will preclude consideration of contributory negligence. It is the opinion of this Court that it will so preclude.

The Supreme Court in speaking to interplay between the rights of seaman under the Jones Act and the FELA said:

“. . . The Jones Act, in providing that a seaman should have the same right of action as would a railroad employee, does not mean that the very words of the F.E.L.A. must be lifted bodily from their context and applied mechanically to the specific facts of maritime events. Rather, it means that those contingencies against which Congress has provided to ensure recovery to railroad employees should also be met in the admiralty setting.” Cox v. Roth, 348 U.S. 207, 209, 75 S.Ct. 242, 243, 99 L.Ed. 260 (1955).

We think, therefore, that the clear intent of Congress in its passing of the Jones Act and the incorporation by reference of the FELA was that an injury to or death of a seaman resulting from his employer’s violation of a safety statute bars consideration of contributory negligence.

In Neal v. Saga Shipping Co., 407 F.2d 481 (5th Cir. Tex.1969), cert. denied, 395 U.S. 986, 89 S.Ct. 2143, 23 L.Ed.2d 775 (1969), the Fifth Circuit, in dictum, also answered this question in the affirmative. Neal involved the wrongful death of a longshoreman and appellants there argued that the Jones Act applied to longshoreman and, therefore, Sec. 53 of the FELA applied. The Court noted in passing on this argument that if the deceased had been a seaman instead of a longshoreman, the shipowner could not have pressed the issue of decedent’s own negligence.

All of which brings us to a determination of whether the regulations asserted by appellant come within the following language of Sec. 53 of the FELA: “any . statute enacted for the safety of the em- . ployees . . . ” It is appellant’s contention that Section 7.602-42 of the Code of Federal Regulations has the effect of law, was promulgated for the safety of those people covered by the regulation and that it adopts the Corps of Engineer’s Safety Regulations which form the basis of the statutory violation here urged. This regulation, 32 CFR § 7.602-42, is as follows:

“ § 7.602-42 Accident prevention.
(a) Normally the following clause concerning safety controls, record, reports and corrective action to be taken shall be inserted.
ACCIDENT PREVENTION (JUNE 1967)
(a) In order to provide safety controls for protection to the life and health of employees and other persons; for prevention of damage to property, materials, supplies, and equipment; and for avoidance of work interruptions in the performance of this contract, the Contractor shall comply with all pertinent provisions of Corps of Engineers Manual, EM 385-1 — 1, dated March 1, 1967, entitled “General Safety Requirements,” as amended, and will also take or cause to be taken such additional measures as the Contracting Officer may determine to be reasonably necessary for the purpose.
* ⅜ * * * *
(d) Compliance with the provisions of this article by subcontractors will be the responsibility of the Contractor.” (Emphasis supplied)

The Supreme Court in Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958), set down the basic principles governing the liability of employers for statutory violations. In Kernan, a seaman was killed when a tug boat on which he was employed caught fire. The tug had been towing a scow through a river covered with petroleum products which created a layer of highly flammable vapors immediately above the water. A kerosine lamp had been placed on the scow about three feet above the water. The lamp ignited the vapors causing the fire which in turn caused the seaman’s death. The plaintiff contended that a Coast Guard navigation regulation provided that a lamp was not to be maintained at a height of less than eight feet, and that the defendants’ violation of this statute imposed liability. The defendants countered that the regulation was intended to prevent collisions only and that no duty was owed the seaman here since his injury was not one which the regulation was designed to prevent. The Supreme Court found for the plaintiff on the facts after relying upon the several decisions under the FELA with the following reasoning:

“We think that the irrelevance of the safety aspect in these cases demonstrates that the basis of liability is a violation of statutory duty without regard to whether the injury flowing from the violation was the injury the statute sought to guard against. It must therefore be concluded that the nature of the Acts violated is not a controlling consideration; the basis of liability is the FELA.”

In arriving at this conclusion, the Court pointed out the purpose of the pertinent legislation in this language:

“. . . . Therefore, as industry and commerce became sufficiently strong to bear the burden, the law, the reflection of an evolving public policy, came to favor compensation of employees and their dependents for the losses occasioned by the inevitable deaths and injuries of industrial employment, thus shifting to industry the “human overhead” of doing business. For most industries this change has been embodied in Workmen’s Compensation Acts. In the railroad and shipping industries, however, the FELA and Jones Act provide the framework for determining liability for industrial accidents. But instead of a detailed statute codifying common-law principles, Congress saw fit to enact a statute of the most general terms, thus leaving in large measure to the courts the duty of fashioning remedies for injured employees in a manner analogous to the development of tort remedies at common law. But it is clear that the general congressional intent was to provide liberal recovery for injured workers, . . . and it is also clear the Congress intended the creation of no static remedy, but one which would be developed and enlarged to meet changing conditions and changing concepts of industry’s duty toward its workers.” (Emphasis supplied.)

Justice Cardozo in Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932) also recognized the general intent of Congress to provide liberal recovery for injured workers when he said:

. . Congress did not mean that the standards of legal duty must be the same by land and sea. Congress meant no more than this, that the duty must be legal, i. e., imposed by law; that it shall have been imposed for the benefit of the seaman, and for the promotion of his health or safety; and that the negligent omission to fulfill it shall have resulted in damage to his person. When this concurrence of duty, of negligence and of personal injury is made out, the seaman’s remedy is to be the same as if a like duty had been imposed by law upon carriers by rail.”

Returning to the present case, it is clear that regulations enacted under statutes providing for a comprehensive policy for government procurement have the force of law. Paul v. United States, 371 U.S. 245, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963); Public Utilities Commission of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958). The regulations involved in the present case receive their authority from 10 U.S.C. 2202 and 32 C.F.R. Part 7, p. 496 (1974). 10 U.S.C. 2202 grants to the Secretary of Defense the power to prescribe regulations to achieve an integrated system of military procurement as here set out:

“Notwithstanding any other provision of law, an officer or agency of the Department of Defense may obligate funds for procuring, producing, warehousing, or distributing supplies, or for related functions of supply management, only under regulations prescribed by the Secretary of Defense. The purpose of this section is to achieve the efficient, economical, and practical operation of an integrated supply system to meet the needs of the military departments without duplicate or overlapping operations or functions.”

Pursuant to this authority, 32 CFR, Sec. 7.602-42 (1974) was promulgated and it adopted by reference all pertinent provisions of Corps of Engineers Manual, EM 385-1-1, dated March 1, 1967, entitled “General Safety Requirements.” To us, this regulation as well as its adopted provisions, therefore, has the full force of law.

The Corps of Engineers, through the Department of Army, has authority over improvements to rivers, harbors and other waterways. 33 U.S.C. Sec. 540. Section 26.B.04 of the Corps’ Regulations, which forms the basis of appellant’s statutory violations, falls within Section XXVI of the Corps’ safety requirements which is entitled “Floating Plant and Marine Locations.” Further, Section 26.B.04 provides that deck openings should be guarded. It is the opinion of this Court that Section 26.B.04 applies to the present case.

At this point we note that the appellee, in its response to appellant’s request for admission, has admitted a violation of this provision (Section 26.B.04) and the jury in answer to special issue 6 found that the failure to guard the hatch or manhole caused or contributed to Rodriguez’s injuries.

The basic purpose of the regulations invoked by appellant is the promulgation of uniform contract provisions for the procurement of government supplies and services. 32 CFR § 1.101. We also note, however, that the particular regulation under discussion here (Section 7.602-42) is entitled “Accident Prevention” and specifically states that its purpose is for the safety of employees. Logically then within 32 CFR there is contained a two-fold purpose; standardizing of federal procurement contracts and providing for the safety of employees. It is the opinion of this Court, therefore, that the regulation in question is within the broad language used by Section 53 of the FELA.

Appellees cite Quinn v. United States, 312 F.Supp. 999 (S.D.Ark.1970), for the proposition that the Corps of Engineer regulations do not have the force of law. In the present case, the Corps of Engineer’s safety requirements are a part of the CFR regulations promulgated pursuant to statutory authorization and as such have the force and effect of law. See Paul v. United States, supra; Public Utilities Commission of California v. United States, supra. In Quinn, there is no showing of such authority behind the Corps’ regulations there considered. We are of the opinion, therefore, that Quinn is not controlling here.

In summary, because Dredging Company violated a statutory duty within the meaning of Section 53 of the FELA, the trial court erred in submitting special issues to the jury inquiring about the contributory negligence of Rodriguez and erred in reducing Rogriguez’s recovery based on the jury’s answers to those special issues. These actions by the trial court require us to reverse a part of the judgment and to hold that Rodriguez is entitled to his recovery without the 55% reduction. Appellant’s point 1 is sustained.

In his point 2, the appellant contends that the trial court erred in sustaining appellee’s special exceptions to that part of his petition alleging inadequate lighting on the Burley Koen.

This error, if there was error, we find to be harmless error under Rule 434, T.R.C.P. (1976) as we will demonstrate. The jury found appellee liable and found damages to Rodriguez of $150,000.00. The jury also found Rodriguez 55% contributorily negligent. As a result, the trial court applied the FELA comparative negligence theory and reduced the damages accordingly. But we have sustained appellant’s first point of error and have thereby precluded any consideration of contributory negligence.

What we have then is a point asserting error because the trial court denied an alternate form of liability. It is the general rule in that instance that there can be no error in the trial court’s sustaining exceptions to an alternate theory where the plaintiff has recovered on some other basis of liability. Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324 (1890); See City of Lubbock v. Onley, 498 S.W.2d 429 (Tex.Civ.App., Amarillo 1973, writ ref’d n. r. e. 506 S.W.2d 208); Hawes v. Central Texas Production Credit Association, 492 S.W.2d 714 (Tex.Civ.App., Austin, 1973, aff’d 503 S.W.2d 234). Appellant’s point 2 is overruled.

Finally, similarly to his attack in point 1, the appellant in his points 3, 4, 5, and 6 attacks the trial court’s action in submitting to the jury special issues concerning the contributory negligence of the appellant and the consequent reduction of his damages based on the jury’s answers to those issues. In these last points the appellant’s complaints address the legal and factual insufficiency of the evidence and the misplacement of the burden on appellant to foresee appellee’s negligence.

Again, if there was error, it was harmless error within Rule 434, T.R.C.P. This is so because in our consideration of appellant’s first point we held that appellant’s contributory negligence could not be used as a basis for reducing appellant’s recovery. Even so, we have examined the record and we have determined that if it were proper to submit the special issues complained of, then the evidence is legally and factually sufficient to support the jury’s answers to those special issues. Also, in view of the trial court’s instructions, accompanying the charge, about no requirement of foreseeing negligence, the appellant’s complaint about the appellant’s burden in that regard has no merit. Appellant’s points 3, 4, 5 and 6 are overruled.

Therefore, that part of the trial court’s judgment reducing by 55% the appellant’s damages is reversed and it is here rendered that the appellant recover of the appellee the sum of $150,000.00 less $12,111.98 for maintenance plus costs and interest. The trial court’s judgment is in all other respects affirmed.

      . In applying this rule, the Supreme Court held that a Jones Act action did not abate on the death of the defendant tortfeasor on the analogy that the F.E.L.A. (Sec. 57) provided for the prosecution of actions against receiver of insolvent railroads. The previous admiralty rule was that such actions did not survive. See Kernan v. American Dredging Company, 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958).


author: BISSETT, Justice.

text:
    Mrs. Alice Dean WESTBROOK et al., Appellants, v. CITY OF EDNA, Texas, Appellee.
    No. 1204.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 31, 1977.
    Rehearing Denied June 23, 1977.

      W. Arthur Combs, Combs, Archer & Peterson, Houston, for appellants.
    Paul M. Green, Lang, Cross, Ladon, Bol-drick & Green, San Antonio, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a summary judgment, which was rendered adverse to Mrs. Alice Dean Westbrook, et al, plain tiff s-appellants. A background statement is deemed necessary to put this appeal in proper perspective.

On June 29, 1972, Gerald Vernon West-brook was killed in a collision between his truck and a truck that was owned by Jerome Tater, d/b/a J & J Enterprises, and which was being operated by James Hopes, an employee of Tater. The accident occurred in the city limits of Edna, Texas. Suit was filed in September, 1972, by Mrs. Alice Dean Westbrook, the widow of the deceased, individually and as next friend of her four children against Jerome Tater, d/b/a J & J Enterprises, and the City of Edna, for damages on account of the death of Mr. Westbrook. The cause was docketed under No. 5896.

At the time of the accident, Jerome Tater had a contract with the City of Edna for the collection and disposal of garbage. James Hopes was driving Tater’s truck in the furtherance of that contract when the collision occurred. Plaintiffs alleged in their petition that Tater and Hopes were employees of the City of Edna, hereinafter called the “City,” and that the City was liable under Tex.Rev.Civ.Stat.Ann, art. 6252-19, § 3, the “Texas Tort Claims Act,” for the damages sustained by plaintiffs by reason of the negligence of Tater and Hopes. In the alternative, it was alleged that should it be held that Tater was an independent contractor at the time in question, the City delegated a governmental function to him, but negligently failed to require him to carry comprehensive insurance of $100,000.00 to $300,000.00, as provided by the Texas Tort Claims Act, and although Tater had a contract with the City which provided for such coverage, the City negligently failed to require him to carry out the provisions of the contract, to plaintiffs’ damage.

The City filed a motion for summary judgment as to that part of plaintiffs’ cause of action which asserted that Tater and Hopes were employees of the City who were acting under the direction and supervision of the City Manager of the City in the operation of the garbage truck at the time of the occurrence in question. The City also filed a motion to sever the action based on the allegations that the City was negligent in failing to require the defendant Tater to carry the liability insurance provided by the contract from the action based on the negligence of Tater and Hopes.

The trial judge granted the City’s motion to sever and severed the action for negligent failure to enforce the insurance provisions in the contract out of Cause No. 5896, which was docketed under No. 5896-A. The severed cause of action, No. 5896-A, was ordered held in abeyance until the rendition of a final judgment in Cause No. 5896. The trial judge, in Cause No. 5896, then granted the City’s motion for summary judgment and, in effect, held that the City was not liable under the Texas Tort Claims Act for any damages sought by appellants because of the negligence of Hopes. This Court dismissed as interlocutory an appeal from that summary judgment. See Westbrook v. City of Edna, 501 S.W.2d 437 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

In the trial of Cause No. 5896 against Tater, the remaining defendant, which commenced on September 16, 1974, the jury returned a verdict in favor of plaintiffs (appellants) against Jerome Tater in the total amount of $373,466.56. The judgment, which was signed on September 30, 1975, in addition to providing for the payment of specific sums of money to certain named parties, further decreed:

“It is further ORDERED, ADJUDGED AND DECREED that the Interlocutory Summary Judgment heretofore granted to the Defendant City of Edna should be merged into this judgment and made final, ...”

No one appealed from that judgment in Cause No. 5896, and it became final long before summary judgment was signed and rendered in Cause No. 5896-A, the case now before us in this appeal.

Following the return of the jury verdict in Cause No. 5896, appellants amended their petition on file in Cause No. 5896-A. They alleged that Tater, d/b/a J & J Enterprises, was an independent contractor at the time and date of Mr. Westbrook’s death; that the City contractually required Tater to carry comprehensive general liability insurance “in the legal limits of $100,000/$300,-000”; that although the contractor originally “filed with the City an insurance bond in accordance with the limits required, the same was cancelled a long time prior to the collision”; that the City did nothing about it, which was negligence, and “in dereliction of its duty to the driving public”; that the contractor does not have any property with which to satisfy the judgment, save and except “a $10,000.00 liability insurance policy”; and that they (appellants) are limited to recovery on the judgment in Cause No. 5896 as may be obtained from the City. Appellants prayed for a recovery against the City in the specific amount of $334,-033.72. In short, the nature of the action in the severed Cause No. 5896-A is for the recovery of an economic loss, which is measured by the difference which appellants would have received under the judgment in Cause No. 5896 against Tater, d/b/a J & J Enterprises, had the City required Tater to maintain liability insurance coverage of $100,000/$300,000, and the $10,000 which they did receive under the judgment in that cause.

After the judgment in Cause No. 5896 became final, the City filed a motion for summary judgment in Cause No. 5896-A, which was granted, and summary judgment in favor of the City was signed on December 11,1976. That judgment is before us in this appeal. Summary judgment proof showed that Tater had $100,000/$300,000 liability insurance coverage when the contract was executed in 1969, and that this was known to the City. Such proof further showed that sometime later and prior to the date when Mr. Westbrook was killed in the collision, the insurance coverage, without the knowledge of either Tater or the City, was reduced to $10,000 per injury.

Appellants contend in this appeal that the City is liable to them for the unsatisfied portion of the judgment in Cause No. 5896 on the theory that when it entered into a contract with Tater to handle its garbage pick up and disposal, it, therefore, required Tater to comply with the Texas Tort Claims Act by taking out $100,000/$300,000 liability, “as required by the Act.” They argue: “if a City has no obligation to the public under such circumstances a City may circumvent the salutary terms of the Texas Tort Claims Act by merely contracting away a governmental function to an independent contractor without requiring him to do anything.”

The question of liability, if any, on the part of the City under the Texas Tort Claims Act because of the negligence of Hopes in the manner in which Hopes operated Tater’s truck at the time in question, was adjudicated adversely to appellants in the interlocutory summary judgment which was made final in the final judgment in Cause No. 5896. Since appellants did not perfect an appeal from that judgment, it was res adjudicata to appellants on the date summary judgment was rendered in Cause No. 5896-A, and is a bar to any cause of action asserted by them under the Texas Tort Claims Act against the City for the negligence of Hopes or Tater concerning the accident which claimed the life of Mr. Westbrook. Abbott Laboratories v. C. K. Gravis, 470 S.W.2d 639 (Tex.Sup.1971).

Section 9 of the Texas Tort Claims Act authorizes, but does not require (as contended by appellants), the purchase of insurance by a governmental unit. Section 14(7) of the Act omits from the scope of the Act any claim predicated on discretionary acts by a governmental unit. The Act effects only a limited waiver of the defense of governmental immunity, and does not purport to abolish governmental immunity in its entirety. Dobbins v. Texas Turnpike Authority, 496 S.W.2d 744 (Tex.Civ.App.—Texarkana 1973, writ ref’d n. r. e.); Sarmiento v. City of Corpus Christi, 465 S.W.2d 813 (Tex.Civ.App.—Corpus Christi 1971, no writ); Greenhill & Murto, Governmental Immunity, 49 Tex.L.Rev. 462 (1971).

The Texas Tort Claims Act applies to a suit for damages for personal injuries or wrongful death as set out in Section 3 thereof, which provides in part:

“ . . . Each unit of government in the state shall be liable for money damages for personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than . ” (emphasis supplied)

The cause of action asserted in the severed Cause No. 5896-A is not an action against the City to recover money damages for personal injuries or death proximately caused by the negligent acts or omissions of any City officer or employee “arising from the operation or use of a motor-driven vehicle.” The Texas Tort Claims Act does not apply to the case at bar. Therefore, whether a viable cause of action exists against the City because of the negligent omissions asserted by appellants in Cause No. 5896-A must be determined by reference to traditional concepts of municipal law. City of Wichita Falls v. Robison, 121 Tex. 133, 46 S.W.2d 965 (1932); Jackson v. City of Corpus Christi, 484 S.W.2d 806 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.).

The law is well settled in Texas that a city, when performing a governmental function, except in a situation within the purview of the Texas Tort Claims Act, is not liable in damages for the torts of its officials, agents or employees. Scroggins v. City of Harlingen, 131 Tex. 237, 112 S.W.2d 1035 (1938); Luvaul v. City of Eagle Pass, 408 S.W.2d 149 (Tex.Civ.App.—Corpus Christi, 1966, writ ref’d n. r. e.). And, it has been uniformly held that a city, in maintaining garbage disposal, is engaged in a governmental function and is, therefore, immune to liability for the negligence of its officials, agents or employees. City of Houston v. George, 479 S.W.2d 257 (Tex.Sup.1972); Meska v. City of Dallas, 429 S.W.2d 223 (Tex.Civ.App.—Dallas 1968, writ ref’d). The fact that in this case the City did not, itself, maintain a garbage disposal system but contracted for the disposal of garbage does not change that rule.

In City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (1937), it was held that there was no liability on the part of the City of Dallas because of its hiring of known incompetents to perform a governmental function. It was held in Mayes v. City of Wichita Falls, 403 S.W.2d 852 (Tex.Civ.App.—Fort Worth 1966, writ ref’d n. r. e.), that the City of Wichita Falls was not liable for failing to properly instruct or supervise an employee in the exercise of a governmental function.

In the instant case, assuming ar-guendo, that the City was negligent in failing to require Tater to maintain $100,-000/$300,000 general liability insurance in force, and that such failure was a proximate cause of the economic loss sustained by appellants, the City would not be liable to appellants for the negligence of its May- or, Councilmen or City Manager in failing to enforce the insurance provisions of a contract which delegated to a third person the performance of a governmental function.

We have read the entire record. We have carefully considered all of appellants’ points. None of them have any merit. All such points are overruled.

The judgment of the trial court is AFFIRMED.


author: NYE, Chief Justice.

text:
    J. E. KEATON, Appellant, v. M. V. YBARRA, N. C. Garza, D. M. Castillo, and the City of Kingsville, Texas, Appellees.
    No. 1151.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 31, 1977.
    Rehearing Denied June 23, 1977.

      Thomas D. McDowell, Howard, McDowell & Cartwright, Corpus Christi, for appellant.
    Nelson R. Sharpe, Glusing & Sharpe, Kingsville, for appellees. .
   OPINION

NYE, Chief Justice.

This case is an appeal from the denial of a writ of mandamus, sought to reinstate the City Manager of the City of Kingsville. Julian Keaton was removed from the city manager’s position by the then city commission of Kingsville. Keaton brought suit to be reinstated in that position. Trial was to a jury. From a trial court judgment denying the mandamus, Keaton appeals to this Court.

Julian Keaton is a professional city manager hired in that capacity by the City of Kingsville in January of 1970. The controversy that gave rise to this litigation began following the retirement in 1971 of a Mr. T. A. Reid, the city tax assessor-collector. Keaton appointed Margaret Saenz, a long time clerk in the tax office as Mr. Reid’s temporary replacement and began to search for a qualified assessor to replace Mr. Reid. After approximately one year, Keaton hired Robert Nelson as the new tax assessor-collector. ■

Very soon after Nelson was hired, Mrs. Saenz resigned evidently in protest over the hiring of Nelson. Apparently Mrs. Saenz felt she had originally been promoted to the position of tax assessor-collector and was now being replaced by Mr. Nelson. Mrs. Saenz manifested her dissatisfaction further by filing a complaint against the city with the regional Equal Employment Opportunity Commission. Mrs. Saenz couched her complaint on the basis of sex discrimination, complaining primarily that she was constructively discharged from her position as tax assessor-collector when the city manager hired Mr. Robert Nelson for the position that she had held. Keaton evidently took this complaint as a personal charge against him of discrimination. At the conclusion of its investigation, the Equal Employment Opportunity Commission determined there was reasonable cause to believe that the City of Kingsville had in fact engaged in unlawful employment practices as it concerned Mrs. Saenz. Upon notice of this determination, the city commission instructed the city attorney and Keaton to confer with Mrs. Saenz’s attorney and attempt to reach a settlement of her claims against the city. The city commission, on advice of the city attorney, reached an agreement with Mrs. Saenz wherein she was to be reinstated as the city tax assessor-collector, her retirement benefits would be reinstated and she would receive $1,200.00 for accrued vacation and sick leave previously lost. This agreement was in furtherance of the city’s stated policy of avoiding litigation. Keaton strongly disagreed with this policy and refused to participate in the settlement negotiations.

After the commission had voted to reinstate Mrs. Saenz, Keaton let his position on that subject be known to everyone by sending a letter to both the local Kingsville newspaper and to the Corpus Christi morning newspaper. In this “open letter”, Keaton stated that he felt the commission’s action was incorrect and that he refused to reinstate Mrs. Saenz. At the commission meeting of July 15, 1974, Keaton’s “position” letter was read into the minutes of the meeting and the question of what action the commission would take was discussed in a closed session. At the commission meeting of July 19, 1974, the settlement agreement with Mrs. Saenz was ratified by the commission. At the same meeting, Commissioner Ybarra asked Keaton if he intended to abide by the city’s agreement with Mrs. Saenz. Keaton replied in the negative. Commissioner Ybarra then moved that Keaton be suspended for insubordination pending a hearing on his discharge as city manager. After some discussion, Ybarra’s motion was passed. Keaton then requested a public hearing on his dismissal. On August 19, 1974, a public hearing was held as requested by Keaton. Thereafter the city commission adopted a final resolution removing Keaton as city manager.

About one year later, Keaton filed his original petition against the city, its manager and city commissioners seeking $550,-000.00 in damages for libel and slander. In February 1976, Keaton filed his third amended original petition wherein he abandoned his cause of action for libel and slander and sought a writ of mandamus to reinstate him as the City Manager of the City of Kingsville.

Trial was to a jury. At the conclusion of the testimony, special issues were submitted to the jury which were answered against Keaton. The first special issue was whether or not the commissioners who voted for the preliminary resolution acted in bad faith. Based on the jury verdict, the trial court entered a take nothing judgment.

The first question is raised not so much by appellant’s first point of error as it is by appellee’s first counter-point. Appellant’s first point of error is that the trial court erred in overruling his motion for judgment non obstante veredicto because, as a matter of law, he was not insubordinate. Appel-lees’ first counter-point of error is that the appointment and removal of a city manager is a legislative action within the discretion of the city commission and as such is not subject to judicial review.

The City of Kingsville is a home rule city which has adopted the city-manager form of government pursuant to Art. 1164a, et seq., Tex.Rev.Civ.Stat.Ann. (1963). (For a discussion of the city-manager form of municipal government, see McQuillan Municipal Corporations § 9.21 (3rd ed. 1966).) Art. 1164a-5 entitled powers and term of manager reads as follows:

“If such city has authorized by vote, as in this Act provided, the appointment of a city manager, then after the appointment of such city manager as herein provided, the administration of the city’s business shall be in the hands of such manager. The manager shall be appointed by the governing body and shall hold office at the pleasure of the governing body. The governing body shall be responsible for the manager’s efficient administration of the city’s business. The governing body by ordinance may delegate to and confer upon such manager such additional powers and duties as in their judgment may be proper for the efficient administration of the city affairs.” (emphasis supplied)

Section 32 of the Kingsville City Charter provides that:

“The Commission shall appoint a City Manager for an indefinite term and may remove him by majority vote of its members. At least thirty days before such removal shall become effective; the Commission shall by a majority of its members adopt a preliminary resolution stating the reasons for his removal. The manager may reply in writing and may request a public hearing, which shall be held not earlier than twenty days nor later than thirty days after the filing of such request. After such public hearing, if one be requested, and after full consideration, the Commission by majority vote of its members may adopt a final resolution of removal. By the preliminary resolution the Commission may suspend the manager from duty, but shall in any case cause to be paid him forthwith any unpaid balance of his salary for the next three calendar months following adoption of the preliminary resolution.”

It should be noted that Keaton makes no complaint here that the procedures provided in Section 32 of the Kingsville City Charter were not followed by the commissioners.

The question before us is to what extent is the dismissal of a city manager subject to judicial review. Art. 1164a states simply, that a city manager may be removed at the pleasure of the governing body of the city. However section 32 of the Kingsville City Charter provides some limitation on this removal by stating there must be some reason for the removal. Beyond this very broad criterion, however, there seems to be no impermissible grounds for the removal of a city manager. At the outset we recognize, of course, that no person can be dismissed from his employment on the grounds of race, religion, sex or any other constitutionally prohibited grounds that would amount to discrimination. Keaton does not complain here of any such discrimination. Therefore, the question is to what extent, if any, can a court review the action of a city commission in removing its city manager.

The general rule is that where a legislative body such as a city council, has the power to do something (such as the hiring and firing of the city manager) it cannot be subject to inquiry by the courts as to good faith, motives, reasons or purposes. City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960) and the many cases cited therein. This rule is general in nature and applicable whenever a valid provision of a home rule city charter vests a discretionary power in a city council. City of San Antonio v. Wallace, supra. The case of Riggins v. City of Waco, 100 Tex. 32, 93 S.W. 426 (1906) is analogous to the case at bar. In the Riggins case, a mayor sought to be reinstated by writ of mandamus. The court pointed out that the power of removal was vested in the city council and no power of review was given to the courts. The court did point out that where the law required that the removal be for a specified cause, the courts may inquire whether or not the council exceeded its lawful authority in such a removal. Beyond this review, the courts have no power over the subject matter. The most that could be asserted in favor of the power of the courts is that they may inquire whether or not charges were duly preferred, a hearing had been given, and evidence adduced tending to sustain the charges.

A court should not interfere in the removal of a city manager, unless there is a definite showing that the policy-making body of the city acted arbitrarily and capriciously. The merits of the removal proceeding will not be considered by the courts, nor will the courts substitute their judgment and opinion for that of the tribunal that is vested with the power of removal. 56 Am.Jur.2d Municipal Corporations § 187 (1971). This same limitation on judicial power is also recognized by the Federal Courts. See Harvey v. Nunlist, 499 F.2d 335 (5th Cir. 1974); Hodgin v. Noland, 435 F.2d 859 (4th Cir. 1970); Chiriaco v. United States, 339 F.2d 588 (5th Cir. 1964); Hargett v. Summerfield, 100 U.S.App.D.C. 85, 243 F.2d 29 (1957) cert. denied, 353 U.S. 970, 77 S.Ct. 1060, 1 L.Ed.2d 1137.

Since the appellant Keaton does not complain that the city commission acted arbitrarily or capriciously, our review is thereby limited to the qualifications placed on the City of Kingsville by its own city charter. See Riggins v. City of Waco, supra. Under the Riggins decision, this Court may only review the questions of 1) whether or not charges were preferred against Keaton; 2) whether or not Keaton was provided a hearing; and 3) whether or not there was any evidence from which the council, acting fairly, might have found Keaton to be insubordinate. The record before us clearly indicates that all three of these elements were satisfied.

At the meeting of the city commission of July 19, 1974, and pursuant to section 32 of the City Charter, Keaton was charged with being insubordinate by the council for refusing to reinstate Mrs. Saenz in direct contravention of section 31 of the City Charter which required him to perform all duties authorized or directed by the city council. At the July 19,1974 meeting, Keaton requested a hearing on his dismissal. Such hearing was held on August 14, 1974. Keaton and his attorney were given full opportunity to demonstrate why he should not be removed for insubordination. Reviewing all the evidence we find that there is ample evidence of insubordination from which the council could have found Keaton to be insubordinate. This evidence for example, would be his refusal to carry out the mandate of the council to reinstate Mrs. Saenz when requested to do so. Appellant’s first point of error is overruled.

Appellant next complains that the trial court erred in failing to grant the mandamus because his removal was a violation of his right of free speech. This point is totally without merit. The basis of Keaton’s dismissal was his refusal to follow the directives of the city commissioners. The record in no way reflects that the basis for Keaton’s removal was the publication of his position letter in the local newspapers. Unless there was a showing that this was the basis for his removal, no protected speech question is raised. No such finding was requested or found by the jury. Appellant’s second point of error is overruled.

It is this Court’s duty to affirm the trial court’s judgment if it can be sustained on any theory suggested by evidence and authorized by law. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959); Pearson v. Stevens, 446 S.W.2d 381 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ); Connor v. City of University Park, 142 S.W.2d 706 (Tex.Civ.App.—Dallas 1940, writ ref’d). Since the trial court’s judgment denying Keaton the relief of mandamus is based on the principles of law and is supported by the evidence set out herein, the judgment of the trial court must be affirmed.

AFFIRMED.


author: O’QUINN, Justice.

text:
    Howard Anthony HICKMAN, Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF TEXAS SYSTEM, Appellee.
    No. 12557.
    Court of Civil Appeals of Texas, Austin.
    June 1, 1977.
    Rehearing Denied June 22, 1977.

      Howard Anthony Hickman, pro se.
    John L. Hill, Atty. Gen., M. Lynn Taylor, Asst. Atty. Gen., Austin, for appellee.
   O’QUINN, Justice.

Appellant, a student at the University of Texas in Austin, brought this lawsuit late in October of 1976 shortly before the general election of November 2, seeking to enjoin the Board of Regents of the University “from attempting to influence election outcomes or legislation” through the student newspaper, the Daily Texan.

Appellant alleged that on three consecutive days late in October the Texan, through its editorial columns, endorsed “Jimmy Carter for President of the United States,” endorsed “the write-in candidacy of Tom Lorance for the Texas Supreme Court,” and endorsed “Walter Wendlant [sic] for the Texas Railroad Commission.” Appellant alleged further that he “disagrees with the political positions” and “the attempts of the Daily Texan to influence legislation and to endorse candidates.”

The imposition on appellant as a student “of a mandatory fee to support” the Texan, appellant alleged, “forces an association between . . . [the] Texan and plaintiff he does not care to enter or to continue,” and restricts his “freedom of speech and of the press.”

“Plaintiff will suffer irreparable harm, damage, and injury,” appellant alleged, “unless the acts complained of are enjoined . . .”

After hearing on temporary injunction, the trial court denied the prayer for “temporary restraining order and temporary injunction.” Appellant brings three points of error on appeal.

Upon review of the record we find that the trial court did not abuse its discretion and we will affirm its judgment.

It is settled that in a suit for temporary injunction the trial court is invested with broad discretion to grant or deny the injunction sought. On appeal the review of the trial court’s action, granting or denying the injunction, is limited to the narrow question of whether the action constitutes a clear abuse of discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962).

To warrant issuance of a temporary injunction, the applicant need show only a probable right and a probable injury, and is not required to establish that he will finally prevail in the litigation. Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). When the pleadings and the evidence present a case of probable right and probable injury, the trial court has broad discretion to determine whether to issue the writ; and the court’s order will be reversed on appeal only upon showing of a clear abuse of discretion. Robertson Transports, supra.

The .record in this case discloses pleadings by which in general terms injury is claimed “unless the acts complained of are enjoined.” But the record contains no evidence adduced tending to show that appellant would suffer any injury if temporary injunction should not be granted pending hearing on the merits. To grant temporary injunction under such circumstances would have been improper and an abuse by the trial court of its discretion. Armendariz v. Mora, 526 S.W.2d 542 (Tex.1975); Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683 (Tex.1968); Justice Mortgage Investors v. Thompson Construction Company, 533 S.W.2d 939 (Tex.Civ.App. Amarillo 1976, writ ref’d n. r. e.).

The trial court correctly refused to grant the writ of temporary injunction. The judgment is affirmed.