author: DIES, Chief Justice.

text:
    LEIF JOHNSON FORD, INC., Appellant, v. CHASE NATIONAL BANK, Appellee.
    No. 8133.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 28, 1978.
    Rehearing Denied Jan. 26, 1979.

      ■John B. Meadows, Austin, for appellant.
    Frederick M. Schattman, Austin, for ap-pellee.
   DIES, Chief Justice.

On December 17, 1976, Big T Equipment and Machinery Service purchased two trucks from Leif Johnson Ford, Inc. (Ford), defendant below, paying with a check which was subsequently dishonored. Big T took possession of the trucks.

Three days later (December 20), Big T obtained certificates of title to the trucks reflecting that it was owner-free and clear of liens. On December 21, 1976, Big T executed a promissory note to Chase National Bank (Bank), plaintiff below, using the certificates of title to the two trucks as collateral for the loan.

On December 22, 1976, the Texas Highway Department through the county clerk issued receipts accepting application for corrected certificates of title, showing plaintiff below — Bank—as the first lien holder.

On December 23, 1976, defendant below — Ford—learned that Big T’s check was returned, due to insufficient funds, and repossessed the trucks.

On Friday, December 24, 1976, the Texas Highway Department was closed under the provisions of the General Appropriations Bill of 1975. On Monday, December 27, 1976, the Texas Highway Department was again closed under the Appropriations Bill of 1975, but on that day defendant — Ford— obtained an affidavit from Big T that the original certificates of title were lost or destroyed and a power of attorney to record on the certificate of title a first lien in favor of defendant — Ford. Plaintiff— Bank — notified defendant Ford that the two trucks were security for Big T’s loan.

On Tuesday, December 28, 1976, defendant Ford made application with the Highway Department for corrected certificates of title to show defendant as first lien holder, and the applications were accepted.

Plaintiff Bank thereafter filed suit for a temporary restraining order to prevent Big T or defendant Ford from applying for certificates of title or selling the trucks. The district court granted the requested relief. Then, on plaintiff’s Bank’s motion for partial summary judgment, the court awarded plaintiff Bank a judgment against Big T for $8,516.16, declared that plaintiff Bank’s lien was superior to defendant Ford’s lien, and ordered defendant Ford to deliver its certificates of title to the Highway Department. The court also ordered the department to revoke those certificates and reissue new ones reflecting plaintiff Bank as the first lien holder.

It is from this judgment that defendant Ford brings this appeal.

The only issue with which we are concerned here is whether plaintiff Bank or defendant Ford has the superior title.

Defendant Ford contends its sale to Big T was conditional, and was defeated when Big T dishonored the checks, citing Tex.Bus. & Comm.Code Ann. § 2.511(c) (Vernon 1968). Defendant Ford contends thereby that it had a purchase money lien, which it perfected by complying with Tex.Rev.Civ.Stat. Ann. art. 6687-1 (Vernon 1977), and also contends that since December 27, 1976, was a holiday it had until December 28, 1976, under Tex.Rev.Civ.Stat.Ann. art. 5429b-2, § 2.04(b) (Vernon Supp.1978), to perfect its lien. There is much discussion in both briefs as to whether or not a holiday granted state agencies in the General Appropriations Bill is in law a “legal holiday” as provided in Tex.Rev.Civ.Stat.Ann. art. 4591 (December 27th is not among them) (Vernon 1976).

Under our view of the law controlling this case, it is unnecessary to decide whether December 27th was a “legal holiday,” thus extending defendant Ford’s time to file its lien until December 28, 1976.

Tex.Bus. & Comm.Code Ann. § 2.403(a) (Vernon 1968) states (in part):

“A person with voidable title has the power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though . . . the delivery was in exchange for a check which is later dishonored . . . .”

Thus under this statute Big T had the power to transfer title to the vehicles to a good faith purchaser.

While plaintiff Bank did not purchase the vehicles, it did lend Big T money on the vehicles with no knowledge of the worthless check given Ford by Big T, and of course the Bank had no knowledge at the time it lent Big T the money that Ford would subsequently claim a lien on the trucks.

The Code defines purchaser as including taking by “mortgage, pledge, lien, . or any other voluntary transaction creating an interest in property.” Tex.Bus. & Comm.Code Ann. § 1.201(32, 33) (1968).

In Matter of Samuels & Co., 526 F.2d 1238, 1242 (5th Cir. 1976), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 we find:

“Section 2.403 [quoted above] gives certain transferors power to pass greater title than they can themselves claim. Section 2.403(a) gives good faith purchasers of even fraudulent buyers-transferors greater rights than the defrauded seller can assert. This harsh rule is designed to promote the greatest range of freedom possible to commercial vendors and purchasers.
“The provision anticipates a situation where (1) a cash seller has delivered goods to a buyer who has paid by a check which is subsequently dishonored, § 2.403(a)(2), (3), and where (2) the defaulting buyer transfers title to a Code-defined ‘good faith purchaser.’ .
“The Code definition of ‘purchaser’ is broad, and includes not only one taking by sale but also covers persons taking by gift or voluntary mortgage, pledge or lien.” (Emphasis supplied.)

See also Ranchers and Farmers’ Livestock Auction Company v. First State Bank, 531 S.W.2d 167 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.).

Bank therefore was a “good faith purchaser” under the Code when it loaned Big T the money and took a lien on the trucks. This occurred on December 22, 1976; so, Bank has the superior lien. Appellant’s points are overruled. The judgment of the trial court is affirmed.

AFFIRMED.

Opinion on Motion for Rehearing

Appellee, Chase National Bank, has filed a Motion for Rehearing asking that this cause be remanded, not rendered, for a determination of the amount owing on the appellant’s supersedeas bond. Since appellant has had possession, use, and enjoyment of the vehicles while the cause has been upon appeal, the vehicles have depreciated in value. The Motion has merit, and we now amend our earlier order and opinion and now enter an order reversing the judgment of the trial court and remanding the cause with instructions to determine the additional monetary relief to which appellee is entitled and for the entry of judgment against the appellant and the sureties upon its supersedeas bond for the amount so determined. See Boswell v. Connell, 556 S.W.2d 624, 626 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.). All costs in all courts are adjudged against appellant and the sureties upon its supersedeas bond.

       “Subject to the provisions of this title on the effect by an instrument on an obligation (Section 3.802), payment by check is conditional and is defeated as between the parties by dishonor of the check on due presentment.”


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Ray P. REEVES, Appellee.
    No. 17173.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 4, 1979.
    Rehearing Denied March 1, 1979.

      Susan K. Terrell, Houston, for appellant.
    James H. Campbell, Houston, for appel-lee.
   PEDEN, Justice.

Southwestern Bell Telephone Company appeals from a judgment in favor of Ray P. Reeves based on breach of contract and negligence arising from the company’s having failed for about a year to intercept calls to his old telephone number and give callers his new office number. He was awarded actual damages of $10,000 and exemplary damages of $50,000. The company asserts that there was no evidence and insufficient evidence to support the jury findings of 1) unreasonableness of the tariff 2) proximate cause 3) gross negligence 4) malice 5) res ipsa loquitur 6) negligence and 7) justifiable reliance on appellant’s alleged promise to intercept calls. Further, that the award of exemplary damages was excessive and erroneous, that the actual damages were improperly measured, and that since the telephone company’s liability is limited by tariff, the trial court lacked jurisdiction over the subject matter. We order the recovery reduced to $10,000.

In response to special issues, the jury found:

1. that the general exchange tariff provision in question was not reasonable and necessary for furnishing services to the company’s patrons and for the conduct of its business generally;
2. that from June 1,1972 to June 1,1973 the company was negligent in failing to intercept calls to Reeves’ office number and to his home number and such negligence was a proximate cause of loss of income to him;
3. (predicated on an affirmative answer to Issue 2) such failure was gross negligence;
4. with respect to both his office and home numbers, the company a) promised Reeves that it would intercept and transfer calls from June 1, 1972 to June 1, 1973; b) Reeves relied on such promises to his detriment; c) Reeves acted reasonably in justifiable reliance on such promises; and d) the detriment he suffered in reliance on them was foreseeable by the company;
5. (predicated on affirmative answers to 4) the company was actuated by malice in not intercepting calls to Reeves;
6. $10,000 would fairly and reasonably compensate Reeves for his loss of profits resulting from the occurrence in question;
7. (predicated on an affirmative answer to 3 or 5) $50,000 should be awarded to Reeves as exemplary damages.

Ray P. Reeves has used the same number for 17 years and has practiced law in Harris County since 1955. Before he planned, on June 1, 1972, to relocate both his office and his home to his new residence, he requested telephone service on his new location. He testified that he was told by a company representative that all calls placed to his old numbers would be intercepted and that an operator would give each caller his new number. He testified that in reliance on this promise he made no other arrangements.

Before June 20, Reeves notified a Mrs. Mouton (with the telephone company) that his calls were not being intercepted. Mrs. Mouton testified that the company’s equipment was not working properly but that by June 23, after numerous test calls by the company’s employees, the equipment had apparently been repaired. She said that on July 13 Reeves called, said he was the one whose business service she had fixed, that he was having the same problem with his residence phone and it was fixed that same day. According to the company’s record, that was the last complaint Reeves made. Reeves testified that in many calls made during the next year, he found that the interceptor worked only about a day and then quit working. Further, that the company assigned his previous home number to another party.

Mr. Lofton testified that Mr. Reeves had been his attorney since 1960 and had also handled the legal problems of his employees, who varied in number from 30 to 150. He said he had tried a number of times in July or August, 1972, to call Reeves at his office and at his home but that no one answered the office phone, and finally, the home phone number was reassigned. He gave up on trying to reach Reeves. There is testimony to the effect that in October the referral system was still not working properly. Reeves testified that during the time in question, his law practice suffered as clients were unable to call him easily.

In Point of Error 1, appellant says the district court lacked jurisdiction over this action for breach of contract and negligence.

Prior to the enactment of the Public Utilities Regulatory Act (PURA) local governments regulated Texas utility systems. Art. 1446c Vernon’s Texas Civil Statutes (1975).

PURA was enacted in 1975 “. . .to protect the public interest inherent in the rates and services of public utilities.” Appellant is a public utility as defined by Art. 1, Section 3(c)(2)(a) of the Act. Under Section 18 of the Act, telecommunications utilities are

Subject to the limitations imposed in this Act, and for the purpose of regulating rates, operations and services so that such rates may be just, fair, and reasonable, and the services adequate and efficient, the commission shall have exclusive original jurisdiction over the business and property of all telecommunications utilities in this state.

The company maintains that Section 18 confers exclusive original jurisdiction over all controversies regardless of the nature of the suit. It cites Bell Telephone Co. v. City of Kountze, 543 S.W.2d 871 (Tex.Civ.App.1976, no writ) (closing of a telephone business office); Commissioners’ Court of Harris County v. Peoples National Utility Co., 545 S.W.2d 47 (Tex.Civ.App.1976, no writ) (injunction to restrain private water utility from discontinuing water service); General Telephone Co. of the Southwest v. City of Perryton, 552 S.W.2d 888 (Tex.Civ.App.1977, writ ref. n. r. e.) (rate increase) and General Telephone Co. of the Southwest v. City of Point Comfort, 553 S.W.2d 808 (Tex.Civ.App.1977, no writ) (rate increase). Each case was dismissed for lack of jurisdiction, but none of them involved a tort or contract action.

Prior to PURA the cities were the only regulatory agencies under existing law. J. Hopper, “A Legislative History of the Texas Public Utilities Act of 1975,” 26 Baylor L.Rev. 775 (1976). With the enactment of PURA, local governments were stripped of regulatory power. “It is readily apparent that the Legislature has made a comprehensive statute applicable to the entire field of legislative regulation of public utilities replacing the earlier antiquated and greatly criticized pattern of regulation theretofore in effect. In essence, the Act repealed the law giving jurisdiction to the district court, and since it contained no savings clause, it takes away the right to proceed in a pending case undetermined at the time when it becomes effective.” Southwestern Bell Telephone Co. v. City of Kountze, supra at 874.

While the Legislature has conferred exclusive original jurisdiction upon the Public Utilities Commission over the business and property of all telecommunications utilities in this state for the purpose of regulating “rates, operations, and services”, we hold that jurisdiction over this tort claim against a telephone company has not been thus removed from the courts.

“Where the claim is not for future compliance but for damages based on past acts, the exhaustion of administrative remedies doctrine may not apply. The notion is based on the absence of a statute authorizing the Public Utility Commission to fix or adjudicate claims for damages.” Kens, Public Futility — The Status of Consumers in Light of the Public Utility Regulatory Act, 28 Baylor Law Review 953 (1976).

Points of Error 2 through 7 concern the limiting of the company’s liability by the tariff. Appellant asserts that since a tariff is law, its reasonableness and the necessity for it are questions for the court, so they should not be submitted to the jury. Further, that there was no evidence or, alternatively, insufficient evidence to support the jury’s finding that the tariff was not reasonable and necessary.

The specific General Exchange Tariff in question in this case states:

Interruptions of Service — The customer assumes all risk for damages arising out of mistakes, omissions, interruptions, delays, errors or defects in transmission, failure or defects in equipment and facilities furnished by the Telephone Company occurring in the course of furnishing service, in the telephone service or other communication services furnished him by the Telephone company, or of the Telephone Company failing to maintain proper standards of maintenance and operations and to exercise reasonable supervision, except as follows: If service is interrupted other than by negligence or willful act of the customer an allowance at the rate for that portion of the customer’s service affected by the interruption shall be made for the time such interruption continues after the fact is reported by the customer or after detected by the Telephone Company and the interruption is for more than 24 hours. No other liability shall in any case attach to the Company in consideration of such interruptions.

The company has the right to establish reasonable rules and regulations for furnishing service to patrons and for the conduct of its business. Ordinarily regulations so made will be presumed to be reasonable and necessary, unless the contrary is shown. The contracts of such a company must be construed in the light of its obligations to the public and the duty it owes to its patrons generally. Kelly v. Southwestern Bell Telephone Co., 248 S.W. 658 (Tex.Com.App.1923, judgm. adopted). There is little law in Texas on the determination of whether a tariff is reasonable. In Alcazar v. Southwestern Bell Telephone Co., 353 S.W.2d 933 (Tex.Civ.App.1962, no writ), the tariff was admitted in evidence after the parties had stipulated that it would be admitted subject to the question of its reasonableness being submitted to the jury.

In the case at bar, there was evidence that Reeves lost clients and that the company failed to give him relief for a year. He proved with sufficient specificity the amount of actual damages he sustained. We consider that the reasonableness of the tariff was raised by proof 1) that damages caused may be large as compared to the minute recovery allowed by the tariff and 2) that the company may allow the problem to persist for a long time even though it can ordinarily solve it quickly.

In Point of Error 8, the company maintains that the trial court erred in submitting Special Issue No. 2 to the jury because the company has no duty to provide Reeves faultless telephone service. It contends that the plaintiff’s claim was based on the premise that the company has a duty to provide each of its customers with perfect, faultless service, and in the event the service fails, to insure each customer against any loss sustained. The company’s position is that as a public common carrier of telecommunication services, its duty is to make available, so far as possible, to all the people of the United States a rapid, efficient, nation-wide, and world-wide wires and radio communications service with adequate facilities at reasonable charges, citing the Federal Communications Act of 1934, 47 U.S.C.A. 151. We hold that the company had a duty not to damage Reeves by negligently failing to carry out its agreement to intercept his calls and refer them to his new numbers.

In its ninth point, the company contends that because Special Issue No. 2 failed to require the jury to find its answer “from a preponderance of the evidence” the trial court erred in submitting the issue.

“A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection.” Rule 274, Texas Rules of Civil Procedure. The company did not object to the omission in the issue or in an instruction, so the complaint is deemed waived.

In Points of Error 10 and 11, the company says that there was no evidence and insufficient evidence that its failure to intercept calls was a proximate cause of any loss to Reeves. To support this contention, the company relies on Southwestern Telegraph & Telephone Co. v. Goteher, 93 Tex. 114, 53 S.W. 686 (1899) a case involving the telephone company’s failure to deliver an important message. In that case, since the company did not have actual notice of the natural consequences of its failure to deliver a specific written message, it was not held liable.

In the case at bar, there was evidence that Reeves had told the company that the interception system was failing to refer calls and that he was losing clients as the result of it, so the company had actual notice of the consequences of the failure to intercept. Further,

It has been pointed out repeatedly that for the defendant’s negligence to be regarded as a proximate cause of the plaintiff’s injury, it is not necessary that the exact nature of the injury or the precise manner of its infliction should reasonably have been foreseen. It is sufficient that the defendant should reasonably have anticipated consequences or an injury of the general nature of that which ensued. Port Terminal Railroad Association v. Ross, 155 Tex. 447, 289 S.W.2d 220 (1956). See also Otis Elevator v. Wood, 436 S.W.2d 324, 329 (Tex.1968); Texaco, Inc. v. Pursley, 527 S.W.2d 236, 239 (Tex.Civ.App.1975, no writ); McEachern v. Glenview Hospital, Inc., 505 S.W.2d 386, 381 (Tex.Civ.App.1974, no writ); Santa Rosa Medical Center v. Robinson, 560 S.W.2d 751, 757 (Tex.Civ.App.1977, no writ).

The evidence presented in our ease was sufficient to support the jury’s affirmative answer to the proximate cause issue.

The company next asserts that there is no evidence or insufficient evidence to award exemplary damages. We sustain those points. Under Texas law, only the acts of a vice principal or an agent whose acts have been ratified or expressly authorized can subject a corporate defendant to exemplary damages for gross negligence. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934). The same rule applies to exemplary damages based on malice. The four categories of vice principals are: (1) corporate officers, (2) those who have the authority to employ, direct and discharge servants of the masters, (3) those engaged in the performance of non-delegable or absolute duties of the master, and (4) those to whom the master has confided the management of the whole or a department or a division of his business. Ft. Worth Elevators Co. v. Russell, supra at 406. Other cases employ this shorthand definition of a vice principal: One who, in addition to his authority to direct and supervise the work of subordinates, has the authority to hire and discharge them. Sartain v. Southern National Life Insurance Co., 364 S.W.2d 245 (Tex.Civ.App.1963, writ ref. n. r. e.); Waring v. Harris, 221 S.W.2d 345 (Tex.Civ.App.1949, writ ref.); Lantry-Sharpe Contracting Co. v. McCracken, 105 Tex. 407, 150 S.W. 1156 (1912).

Reeves did not identify any company employee whose conduct should give rise to recovery of exemplary damages. A Mrs. Mouton was the only company employee he named besides “a man named Fred Perring, or something like that.” Reeves made no complaint about Mrs. Mouton; he said she was “doing everything she could to fix it.” He didn’t make any specific complaint about Fred Perring either. It was some unnamed person at the company that he said told him he was making a nuisance of himself and indicated that if he kept calling, the interceptor would not be made to work.

Further, Mrs. Mouton was not shown to be a vice principal or alter ego of the company. She is a “union manager” of the business office. She described her duties:

That entails having supervisors that report to you, that you have service representatives that report to them, who I am managing for the business of records that takes complaint orders, requests about bills, and moving of service and things of that nature.
* * * * * *
I had four supervisors reporting to me and approximately four service representatives. .

Reeves asserts that even if Mrs. Mouton is not deemed a vice principal, she is an agent of the appellant and her actions as well as the actions of the other employees have been ratified by the appellant, and contends that the company’s continual denial of negligence amounts to ratification of its employees’ acts. Mere denial of liability does not constitute ratification, and we find no evidence of ratification.

Appellant’s Points of Error 22 and 28 are that there was no evidence and, alternatively, insufficient evidence to sustain the jury’s affirmative answer to Special Issue No. 2, which inquired whether the company was negligent in failing to intercept calls to Reeves. There was evidence that the. company’s failure to intercept his calls could have been caused by (a) the calling party’s dialing the wrong number, (b) the telephone number not being put on intercept (computer programmed incorrectly) or (c) something wrong with the gears in the interceptor, the trunk, the allotter, or the various equipment.

One of the preliminary instructions in the court’s charge was:

You are instructed that you may infer negligence by a party but are not compelled to do so, if you find that the character of the accident is such that it would ordinarily not happen in the absence of negligence and if you find that the instrumentality causing the accident was under the management and control of the party at the time the negligence, if any, causing the accident probably occurred.

This instruction was approved in Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974).

We first determine whether the evidence and the inferences which may be drawn from it show that the accident (failure to intercept) ordinarily would not have happened in the absence of negligence.

Next, was the instrumentality causing the injury under the management and control of the company? It asserts that Reeves was unable to pin-point the exact instrumentality causing the failure. In Birmingham v. Gulf Oil Co., 516 S.W.2d 914 (Tex.1974), the physical circumstances surrounding a crane accident made it impossible to prove the precise mechanism of the metal failure and the time at which stage in that process occurred, but the court held that the plaintiff was entitled to recover because the law “only demands the best proof of a transaction that it is susceptible of, and when that is produced then it become a question whether or not its probative force is such to establish its existence.”

In the case at bar, Reeves appears to have presented the best available evidence as to the cause of the failure. He cannot show which of the company’s devices is responsible; even the company’s expert is unsure. When the company’s interception devices failed to work between June 20 and June 23, 1972, the fault was found to lie in the company’s equipment, and the jury was entitled to conclude that it was again malfunctioning. The evidence to explain the occurrence was more readily accessible to the defendant than the plaintiff.

The company also relies on the “human function” testimony of Mr. Freeman as proof that an instrumentality was not causing the problem. This testimony is susceptible to a number of interpretations, one being that the human factor was in fact the negligence of the company, and it appears the jury interpreted it in that way.

The company also maintains that the necessary equipment is exposed to the actions of the community at large and is therefore not within its exclusive control. It appears from the evidence that the company has physical control over the entire system and should be charged with the general duties of inspection and upkeep. Since its equipment, and especially that involved in the failure to intercept, is not ordinarily accessible to others, the jury could reasonably have inferred that the negligence is attributable to the company. See Collins v. Gulf Bldg. Corp., 88 S.W.2d 1093 (Tex.Civ.App.1935, error ref.); Leonard Bros v. Newton, 71 S.W.2d 613 (Tex.Civ.App.1934, error dism’d).

In its 27th point the company contends that the jury was allowed to consider an improper measure of damages. Special Issue No. 6 asked:

What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence, would fairly and reasonably compensate Plaintiff, Ray Reeves, for his loss of profits, if any, resulting from the occurrence in question? Answer in dollars & cents. We the Jury answer: $10,000.00

The proof offered consists of Mr. Lofton’s testimony that during the year in question, when he couldn’t get in touch with Reeves, he paid attorney’s fees in excess of $10,000 to one firm and less than $15,000 to other attorneys and of Reeves’ testimony that he lost employment by Lofton’s 30 to 150 employees, an average of a client a week, for a weekly loss of $150 to $300, or about $5,000 for the year. Lofton testified that he later paid about $25,000 to other attorneys he had hired when he thought Reeves was no longer available.

Appellant asserts that the $10,000 damage finding represents the gross income of the attorneys other than Reeves whom Lof-ton paid, so Reeves failed to demonstrate his lost profits. The company also contends that Reeves must show what his charges for the services rendered by the other attorneys would have been and what part of that charge would have been his profit.

“ * * * Where there is proof, within the permissible range of certainty, that a right of a plaintiff has been invaded, he should not be denied a substantial recovery because of the difficulty in accurately measuring his damages. * * * The rule is that if an injured plaintiff has produced the best evidence available, and if it is sufficient to afford a reasonable basis for estimating his loss, he is not to be denied a substantial recovery because the exact amount of the damage is incapable of ascertainment.” Hindman v. Texas Lime Co., 305 S.W.2d 947, 953 (Tex.1957).

We hold that the evidence supports an award of $10,000 for loss of profit. We note that Reeves’ wife was the secretary and that his office was in his home.

In Points of Error 24 through 26, the company alleged that there was no evidence or insufficient evidence to support the jury’s findings that (a) the company promised to intercept Reeves’ calls, (b) that he relied on this promise, (c) that his reliance was reasonable, and (d) that the detriment he suffered was foreseeable by the company. These four questions were answered affirmatively for both Reeves’ office and home numbers.

There was evidence that the company’s policy is to intercept business calls until the new Yellow Pages Directory is published (in this case, one year) and to intercept residential calls for ninety days unless the number is needed or the customer requests otherwise. Reeves testified that he was also promised interception of calls to his home phone for a year. It was proven that he told the company he was losing clients. There was evidence that months later the calls were not being referred, although the problem had earlier been temporarily worked out.

The appellant asserts that it would be an injustice to reward Reeves for “his allegedly continuous and blind reliance for one entire year that the appellant would refer his calls . . . ” This argument fails to take cognizance of the fact that Reeves was limited by the trial judge to showing his losses from one client, Mr. Lofton, and any clients Mr. Lofton might have sent to him. Mr. Lofton testified that he attempted to get in touch with Reeves during July or August and, being unable to do so, finally secured other attorneys. Reeves need not rely on the company’s promise to intercept for a year in order to show that he suffered damages. If the phone referral system had been working perfectly in September, Reeves would have missed Mr. Lofton’s calls. The jury’s answer to Special Issue No. 4 were supported by the evidence.

As to the plaintiff’s recovery of $50,000 in exemplary damages plus interest thereon, the judgment of the trial court is reversed and rendered in favor of the defendant; as to recovery of $10,000 plus interest thereon, the judgment is affirmed.


author: EVANS, Justice.

text:
    INSURANCE AGENCY MANAGERS, Appellant, v. Albert R. GONZALES, Appellee.
    No. 17242.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 11, 1979.

      Ron J. West, Houston, for appellant.
    Vinson & Elkins, Michael C. O’Connor, Houston, for appellee.
   EVANS, Justice.

This is an appeal from a take nothing judgment entered in favor of the defendant in a suit on a retail installment contract.

The contract executed by the defendant, Albert R. Gonzales, and Edward Lumber & Building Company on September 24, 1974, reflects the defendant’s agreement to purchase certain home improvements for a total price of $3,860.00, and to make payments of principal and interest in eighty-four successive monthly installments of $72.48 each, totaling the sum of $6,088.32. Edward Lumber & Building assigned its position under the contract to Houston Citizens Bank, and upon the defendant’s default a claim was made upon the bank’s loan insurer, Insurance Agency Managers, for payment of the balance due. Insurance Agency Managers then paid the claim and upon receiving an assignment from the bank, brought this action against the defendant for the sum of $3,593.32, representing the balance owing under the contract.

The jury found, among other things, that Edward Lumber & Building Company had failed to substantially complete the home improvements in a good and workmanlike manner as required by the contract; that the reasonable cost of completing the work was in the amount of $2500.00; that at the time the contract was signed the defendant had not received a copy of the contract with the annual percentage rate specified therein; that the authorized representative of Edward Lumber & Building Company knew that the construction of the improvements had not been completed at the time he accepted a certificate of completion from the defendant; and that the building company’s actions were unconscionable to the detriment of the defendant.

The trial court judgment decreed that the plaintiff take nothing against the defendant with respect to any and all indebtedness owing under the contract and dismissed, without prejudice, the defendant’s counterclaim for affirmative relief, finding that the damages claimed exceeded the jurisdiction of the court.

The initial question for this court’s determination is whether the defendant’s claims and defenses against Edward Lumber & Building Company were cut off by the assignment from the original holder of the contract to Houston Citizens Bank. Arguing that this was the effect of the assignment, the plaintiff points to the language contained in Article 5069-6.07 Tex.Rev.Civ. Stat.Ann. pertaining to the assignment and negotiation of retail installment contracts:

“ * * * No right of action or defense of a buyer arising out of a retail installment transaction which would be cut off by negotiation, shall be cut off by negotiation of the retail installment contract . to any third party unless such holder acquires the contract relying in good faith upon a certificate of completion . . . ; and such holder gives notice of the negotiation to the buyer as provided in this Article, and within thirty days of the mailing of such notice receives no written notice from the buyer of any facts giving rise to any claim or defense of the buyer. * * * ”

It is the plaintiff’s contention that since the record shows that Houston Citizens Bank notified the defendant of its purchase of the contract in compliance with the provisions of the statute and because the defendant failed to give notice to Houston Citizens Bank of any claims or defenses which he might have in reference thereto, the terms of the statute preclude the defendant from asserting such claims or defenses against the plaintiff in this suit.

The provisions of Article 5069-6.07 do not create a new classification of negotiable instruments, but merely impose restrictions upon the ability of a holder of a retail installment contract to cut off actions or defenses by negotiation of the instrument. Boyle, Preservation of Claims and Defenses under the Texas Business and Commerce Code and under the Texas Consumer Credit Code, 8 St. Mary’s L.J. 679 (1977), and Snell, Assignee Liability under the Texas Consumer Credit Code, 8 St. Mary’s L.J. 696 (1977). Thus, in the case at bar, this court must determine whether the retail installment contract in question is a negotiable instrument within the meaning of the Texas Business and Commerce Code.

In order for a writing to be negotiable under the Code, it must contain “an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer” except as authorized by the chapter dealing with commercial paper. Tex.Bus. & Comm. Code, Section 3.104(a)(2).

It has been held that a retail installment contract is not a negotiable instrument within the meaning of the Uniform Commercial Code where it contains, among other things, a provision authorizing the holder to waive particular defenses or remedies without waiving others and to purchase property insurance. Geiger Finance Co. v. Graham, 123 Ga.App. 771, 182 S.E.2d 521 (1971). The contract in question contains provisions of similar import.

The contract under consideration also provides that the secured party may at any time pay any taxes, assessments, interest, cost, penalties, insurance premiums or expenses pertaining to the collateral and may demand payment of the full amount thereof with interest. A contract with similar provisions was held to be non-negotiable in Anderson v. Hoard, 63 Wash.2d 290, 387 P.2d 73 (1963).

The contract in the case at bar also contains a covenant that the collateral will be used primarily for personal, family or household purposes and will remain in the owner’s possession or control at all times and at his risk of loss. A provision of similar nature resulted in a conditional sales contract being held to be non-negotiable in Hudiburg Imported Cars, Inc. v. R. E. Hart, 383 P.2d 650 (Okl.1963).

The provisions of the retail installment contract in the case at bar show that it is not a negotiable instrument within the meaning of the Texas Business and Commerce Code, and the trial court properly concluded that such claims and defenses as the defendant had against Edward Lumber & Building Company could be asserted against the plaintiff in this action.

The plaintiff does not challenge the jury’s finding that Edward Lumber & Building Company failed to substantially complete the work in accordance with the contract. Neither does the plaintiff directly challenge the sufficiency of the evidence to support the jury’s findings that Edward Lumber & Building Company’s representative knew at the time he accepted the certificate of completion that the construction of the improvements had not been completed. On the basis of these findings the trial court properly concluded that the plaintiff was not entitled to recover on the contract even though the defendant may have received some benefit from the work performed. City of Sherman v. Connor, 88 Tex. 35, 29 S.W. 1053 (1895).

The plaintiff’s petition seeks recovery upon the contract and does not allege that he is entitled to relief upon quantum meruit; the contract sued upon is an entirety, and since the contract was only partially performed, the plaintiff is not entitled to recover any part of the contract price. Kepley v. Zaehry, 131 Tex. 554, 116 S.W.2d 699 (1938).

Under certain circumstances, equity may require an owner to account for the reasonable value of benefits received in the way of material furnished or labor performed by a contractor who has failed to substantially perform the terms of the contract. Murphy v. Williams, 103 Tex. 155, 124 S.W. 900 (1910); City of Sherman v. Connor, supra. However, the contractor’s right to equitable relief must be established and his recovery is limited to the reasonable value of that which the owner actually received. United States Pipe & Foundry Co. v. City of Waco, 100 S.W.2d 1099, 1112 (Tex.Civ.App.—Waco), affirmed, 130 Tex. 126, 108 S.W.2d 432 (1937). In the case at bar the record does not establish, as a matter of law, the value of the items of labor and material which were received by the defendant in the performance of the work. Furthermore, in view of the jury’s finding that the plaintiff’s actions were unconscionable, the trial court was not required to grant relief to the plaintiff based upon equitable considerations.

Since the judgment of the trial court may be sustained on the basis of the jury’s finding that Edward Lumber & Building Company failed to substantially perform the contract, it is unnecessary to consider the plaintiff’s point of error regarding the finding that the defendant failed to receive a disclosure of the annual percentage rate being charged under the contract as required by 15 U.S.C. Section 1638(b) and 12 C.F.R. Section 226.8(a). It is also unnecessary to consider the plaintiff’s points of error concerning the defendant’s counterclaim for affirmative relief because such counter-claim was dismissed without prejudice prior to entry of the judgment and no crosspoint complaining of such dismissal has been brought forward on this appeal.

The judgment is affirmed.


text:
    CITY OF HOUSTON, Appellant, v. TWIN CITY FIRE INSURANCE COMPANY, Appellee.
    No. 17255.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 11, 1979.
    Rehearing Denied Feb. 15, 1979.

      Robert M. Collie, City Atty., Frank L. Mauro, Asst. City Atty., Houston, for appellant.
    Thompson & Redford, David C. Redford, Houston, for appellee.
   PEDEN, Justice.

The City of Houston appeals from that part of a judgment awarding $3,315 to Twin City Fire Insurance Company (Twin City).

The parties to this appeal have agreed to the following statement of facts: On June 17, 1974, Arlester Byrd, Jr., was employed by Universal Waste Control Systems Corporation as a truck driver and while on the job sustained injuries in an accident with a City of Houston truck. He pursued a workmen’s compensation claim against his employer’s carrier, Twin City, and on February 19, 1976, the claim was settled and judgment entered for $3,315. Byrd did not give notice to the City pursuant to the City Charter that he was making a claim against it. On March 19, 1976, Twin City gave notice to Houston of its subrogation claim. Universal Waste Control Systems Corporation had given timely notice to Houston of its claim for damage to its truck in the accident of June 17, 1974.

The trial judge found that the accident on June 17, 1974 was caused by the negligence of the City, that it was liable to Twin City in the amount of $3,315, and concluded that Twin City’s cause of action against the City did not accrue until Byrd obtained a judgment in his compensation case.

We agree with the appellant’s position that the City was entitled to prevail because notice of Byrd’s personal injuries was not timely submitted to the City. Article IX, Section 11 of the Houston City Charter provides in pertinent part:

Before the City of Houston shall be liable for damages for personal injuries of any kind, or for injuries to or destruction of property of any kind, the person injured . . . shall give the Mayor and City Council notice in writing of such injury . . . within 90 days . stating in such written notice when, where and how the injury occurred and the apparent extent thereof ... a failure to so notify the Mayor and City Council within the time and manner specified herein shall exonerate, excuse and exempt the City from any liability whatsoever .

It is well settled in Texas that an ordinance such as the one here involved is mandatory and that the filing of a written claim within the specified time limit is a condition precedent before a suit can be maintained against the city for such injury. Phillips v. City of Abilene, 195 S.W.2d 147 (Tex.Civ.App.1946, writ ref.) See also City of Houston v. Hruska, 155 Tex. 139, 283 S.W.2d 739 (1955), a case involving the Houston ordinance still in effect. The doctrine of estoppel was not raised in our case, and Twin City does not contend that the City received actual notice or 6 months’ notice as contemplated by Article 6252-19, § 16, V.T.C.S.

In our case it is clear that Byrd could not maintain his suit for personal injuries against the City.

Houston is a home rule city existing under Article 11, Section 5 of Vernon’s Texas Constitution. Its charter powers are plenary, subject to the limitation that its charter and ordinances shall contain nothing inconsistent with the State and Federal Constitutions or the general laws enacted by the Legislature. We find nothing in the notice of injury provision in the Charter of the City of Houston that is in conflict with or repugnant to either of those constitutions or the general laws. See Wagstaff v. City of Groves, 419 S.W.2d 441 (Tex.Civ.App.1967, writ. ref. n. r. e.).

Twin City’s suit against Houston is based on Byrd’s claim. Twin City’s petition alleged that in discharge of its liability under a compensation insurance policy carried by Byrd’s employer, it had paid Byrd $3,315 in workmen’s compensation insurance. The petition stated that by reason of such payment, “and under the provisions of the Texas Workmen’s Compensation Act, Plaintiff Twin City has become subrogated to a claim for this amount” against Houston.

The subrogation provision in question is contained in Article 8307, section 6a, Vernon’s Texas Civil Statutes (1973):

If compensation be claimed under this law by the injured employee . then the association shall be subrogated to the rights of the injured employee, and may enforce in the name of the injured employee . the liability of said other person .

A claim for recoupment of compensation is a derivative cause of action under Article 8307, sec. 6a, depending upon a recovery by the injured employee of damages growing out of personal injuries sustained as a result of the act or omission of a third party. Yeary v. Hinojosa, 307 S.W.2d 325 (Tex.Civ.App.1957, writ ref. n. r. e.)

Since Byrd could not maintain a suit against Houston for his personal injuries, and since Twin City’s cause was a derivative one dependent upon a recovery by or for Byrd, his failure to comply with the notice requirement was fatal to Twin City’s subrogation suit.

We agree with Twin City that the trial court properly concluded that its cause of action against the City did not mature until Byrd obtained a final judgment against Twin City more than 20 months after the accident. Campbell v. Sonford Chemical Co., 486 S.W.2d 932 (Tex.1972). We find no basis, however, to abrogate the rule upholding city charter provisions for timely notice of injuries and holding that such notice is a condition precedent to recovery based on those injuries.

In a case decided before the 1973 amendment to Art. 8307, sec. 6a, T. E. I. A. v. Soliz, 288 S.W.2d 165 (Tex.Civ.App.1956, writ ref. n. r. e.), the employee exercised his statutory election to first proceed against a third party. The court stated:

He [the employee] also had the power to destroy the subrogation rights of the Association. * * * When the employee in control of the litigation so manages the litigation that his own rights against one of the alternatives are lost or destroyed thereby losing or destroying those also of the subrogee, he has exercised an option to proceed. More accurately, it may be termed a failure to exercise an option, but the significant point is that the employee is the one who has entirely used up all right to institute the third-party action.

The City did not appeal from the award in the trial court’s judgment in favor of the Hartford Accident and Indemnity Company, so it remains undisturbed. As to the award of $3,315 to Twin City, the judgment is reversed and is rendered that Twin City take nothing.


author: COLEMAN, Chief Justice.

text:
    Willie D. RAMSEY, Appellant, v. Robert MORRIS, Appellee.
    No. 17247.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 11, 1979.
    Rehearing Denied March 1, 1979.

      C. C. Divine, Houston, for appellant.
    Occie H. Tate, Jr., Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from an order dismissing an application for writ of certiorari to a justice court of Harris County, Texas, which had been previously granted by the District Court. We affirm.

Willie D. Ramsey filed an application for writ of certiorari seeking to remove to the district court the proceedings in a forcible entry and detainer suit in which judgment had been rendered for Robert Morris. The petition asserts that the justice of the peace court lacked jurisdiction to enter a judgment in the cause because the question involved was one of title rather than one of possession. It asserted that exclusive jurisdiction of the cause was in the district court and that certiorari was the only available remedy.

The district court entered an order granting the application, ordering a bond to be filed, and directing the justice of the peace to make and certify a copy of the entries in the cause on his docket and transmit the same with the papers in his possession and a certified copy of the bill of cost to the district court.

Robert Morris filed a motion to dismiss asserting that Article 941, Texas Revised Civil Statutes, precludes a party from using a writ of certiorari to remove a final judgment in a forcible entry and detainer action from a justice court. He further asserted that Mrs. Ramsey failed to appeal the order of the justice of the peace court to the county court as authorized by the Texas Rules of Civil Procedure. After a hearing the district court entered an order sustaining the motion to dismiss.

Copies of the proceedings in the justice court including the judgment rendered therein are not available to this court.

In the respondent’s motion to dismiss it is asserted that the justice of the peace court heard and rendered judgment for the plaintiff in the forcible entry and detainer action on June 9, 1977. The attorney for Willie D. Ramsey attached his affidavit to the petition for writ of certiorari and stated therein that the forcible entry and detainer suit was heard ex parte. He stated that a motion for new trial was heard on June 9, 1977, and that the judge stayed the judgment for seven days, or until June 16, 1977. This affidavit was sworn to on the 14th day of June, 1977. The application for writ of certiorari was filed in the district court on the 15th day of June, 1977. It is clear from this record that the petitioner has failed to show that his legal remedy, an appeal to the county court at law, was not available and fully adequate.

Section 8 of Article 5 of our Constitution confers upon the district courts authority to issue writs of certiorari. Cer-tiorari is a writ issued by a superior court to an inferior court of record, requiring the latter to send to the former some proceedings therein pending, or the records or proceedings in some cause already terminated, in cases where the procedure is not according to the course of the common law. It is the office of a common law writ of certiora-ri to correct errors of law apparent on admitted or established facts. It is not an appropriate procedure in cases where there are disputed issues of fact. State v. De Silva, 105 Tex. 95, 145 S.W. 330 (1912).

This section of Article 5 provides that the district court and the judges hereof shall have power “to issue writs of habeas corpus, mandamus, injunction and certiorari, and all writs necessary to enforce [said] jurisdiction.” There are very few cases which discuss the circumstances which would authorize or require the district court to issue a writ of certiorari to an inferior court.

The writ of certiorari was known to the common law before statutes authorizing its use were enacted, and it seems to be well settled that the writ of certiorari as used to correct the proceedings of inferior tribunals is not a writ of right, but issues only on special cause shown to the court to which application is made, and the court is vested with judicial discretion to grant or refuse the writ as justice may seem to require. Only where the error is manifest and substantial injury has been sustained should the writ be allowed. The court will not award a writ where the errors complained of are merely informal and technical, or where, although there is error in fact, substantial justice has been done and no appreciable injury hás resulted to the complaining party Schwind v. Goodman, 221 S.W. 579 (Tex.Comm.App., 1920).

In Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59 (1958) the Supreme Court considered the authority of the district court under Article 5, Section 8, of the Constitution to issue a writ of mandamus to a county judge in a criminal matter. The Supreme Court pointed out that a district court is not authorized to exercise general supervision and control over the county court in criminal proceedings and held that it had no power to stay the trial of a criminal case pending in another court except where necessary and appropriate to protect or enforce its own jurisdiction. The Supreme Court also pointed out that if the defendant in the county court case had been prejudiced by any action taken in the trial there, he had an adequate remedy by appeal. In its opinion it called attention to the case of Seele v. State, 1 Tex.Civ.App. 495, 20 S.W. 946 (1892, no writ).

Seele involved an original proceeding in the district court to annul the judgment rendered by a justice of the peace court by a writ of prohibition on the ground that the justice of the peace court lacked jurisdiction. The court pointed out that prohibition acts directly upon the court and is a common law writ that lies only when the matter to be prohibited is judicial in nature. It is preventive in character, and it is ordinarily at common law used to prevent a court of inferior powers from usurping the jurisdiction of the superior court. The Seele court stated that if the court against which the writ is directed is free and independent of any supervisory control of the tribunal of superior jurisdiction, and is, within the limits of this jurisdiction, general, in the sense that it has the power to hear and determine the subject of its jurisdiction in its own way, then the writ would not lie, unless the law that created the superior tribunal conferred upon it the power to issue the writ. The court stated: “Every court within this state jurisdiction that has the power to hear and determine judicial controversies is general in its jurisdiction over the subjects that they have cognizance of by the law of their creation; but all such courts are also of special jurisdiction, in the sense that they cannot hear and determine subjects of controversy that are not embraced in the written law that creates and defines their powers. To the written law alone they look to ascertain when they have the power to hear and determine, and when their jurisdiction is prescribed it is relieved of all other. With us these principals of law apply as well to justice courts as they do to the district court.”

Our review of the constitution and law of this state and the decisions of the courts of this state reveals nothing to indicate that the district court has supervisory control over the justice of the peace courts. Original jurisdiction over forcible and detainer cases is lodged in the justice of the peace court, and appellate jurisdiction is given to the county court. In these cases there is no appeal to the district court from either the justice of the peace court or the county court.

In a case where a district court issued a writ of mandamus ordering a justice of the peace to file an appeal bond and transmit to the county court a transcript on appeal in a forcible entry and detainer suit, the judgment was reversed by the court of civil appeals and the cause ordered dismissed for the lack of jurisdiction in the district court. Fry v. McDuffey, 46 S.W.2d 377 (Tex.Civ.App.—Austin 1932, no writ hist.). There the court of civil appeals stated that in granting power to issue writs of mandamus to the district and county courts, the constitution and statutes grant such power when necessary to the enforcement of the jurisdiction of the court. The court of civil appeals determined that the county court in the exercise of its general and exclusive jurisdiction of appeals from the justice court had the power to remove an impediment to an appeal from the justice court and that no other court had the power to exercise this jurisdiction. See also Winstead v. Evans, 33 S.W. 580 (Tex.Civ.App.1896, writ dism’d.).

The trial court did not err in dismissing the application for the writ of certiorari because it lacked jurisdiction to issue the writ. Winfrey v. Chandler, supra; Brady v. Fry, 517 S.W.2d 304 (Tex.Civ.App.—Beaumont 1974, no writ hist.).

An additional reason why the judgment of the trial court dismissing the application for writ of certiorari was not erroneous lies in the fact that an adequate remedy at law was available to the applicant. An appeal lies from the judgment of the justice of the peace court in forcible entry and detainer suits to the county court where the proceeding is by a trial de novo. Rules 749 and 751, T.R.C.P. A judgment which discloses its invalidity upon its face anywhere at any time it is a nullity and may be disregarded. Although it is wholly unnecessary to appeal from a void judgment, it is nevertheless settled that an appeal may be taken and the appellate court in such proceeding may declare the judgment void. An extraordinary remedy such as certiorari or mandamus will not lie as a general rule when ordinary remedies are adequate and usually the remedy of appeal .is adequate. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961). The application for writ of certiorari filed in this case reveals no circumstances unusual in nature which will require the granting of a writ of certio-rari.

As is the case with the writ of mandamus, a writ of certiorari cannot take the place, or be used to perform the office of an appeal or writ of error, particularly when the court from which it is sought has no appellate or revisory control over the court against which relief is asked. Cun ningham v. City of Corpus Christi, 260 S.W. 266 (Tex.Civ.App.—San Antonio 1924, no writ hist.); Grant v. Ammerman, 437 S.W.2d 547 (Tex.1969); City of Houston v. Miller, 436 S.W.2d 368 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d. n. r. e.).

The judgment is affirmed.

PEDEN and DOYLE, JJ., sitting.


text:
    CLEMTEX, LTD., et al., Appellants, v. Edmund N. DUBE, Appellee.
    No. 8192.
    Court of Civil Appeals of Texas, Beaumont.
    January 18, 1979.
    Rehearing Denied Feb. 15, 1979.
    John A. Berke, Jr., Gerald H. Buttrill, Houston, for appellant.
    Tom Letbetter and George Payne, Russell McMains, John W. Berkel, P. Andrew McStay, Houston, for appellee.
   DIES, Chief Justice.

Plaintiff below, Edmund N. Dube, sued Richard Lewis, Joseph Landos, James D. Scott, and Clemtex, Ltd. for damages occasioned by an automobile accident in which he received personal injuries and his wife was killed.

Dube settled with Lewis and Landos for $160,000, agreeing to pay them fifty percent of any damages recovered from Scott and Clemtex, up to $160,000. This agreement was made known to the jury. Clem-tex and Scott kept Lewis and Landos in the lawsuit as parties defendant.

The jury found Clemtex and Scott sixty percent negligent, plaintiff Dube forty percent negligent, and no negligence of Láñe-los and Lewis. Upon such findings Clemtex and Scott, being jointly and severally liable, were ordered to compensate Dube for the sum of $121,395.92, which represents sixty percent of the damages found by the jury. From this judgment Clemtex and Scott bring this appeal on the single proposition that plaintiff, having been compensated by Landos and Lewis for his damages, in an amount in excess of that found by the jury, would thus be receiving greater damages than the jury found he sustained, or a “double recovery.” Appellants cite us Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (Comm’n App.1935, opinion adopted).

Since this decision our legislature has enacted Tex.Rev.Civ.Stat.Ann. art. 2212a (Vernon Supp.1978) (effective September 1, 1973). Section 2(e) of that statute provides:

“If an alleged joint tort-feasor makes a settlement with a claimant but nevertheless is joined as a party defendant at the time of the submission of the case to the jury (so that the existence and amount of his negligence are submitted to the jury) and his percentage of negligence is found by the jury, the settlement is a complete release of the portion of the judgment attributable to the percentage of negligence found on the part of that joint tort-feasor.”

No doubt when Clemtex and Scott decided to keep Lewis and Landos in the lawsuit, it was their judgment a jury would find them negligent. Had Clemtex and Scott dismissed or nonsuited them, they (Clemtex/Scott) would have been “entitled to deduct from the amount for which he is liable to the claimant a percentage of the amount of the settlement based on the relationship the defendant’s own negligence bears to the total negligence of all defendants” under Section 2(d) of the Act. Obviously, the legislature did not intend for a defendant to “have his cake and eat it too.” See also, Sales, “Limitations on Recovery in Personal Injury Cases,” 18 S.Tex.L.J., 217 at 269 (1977). Fisher, Nugent, Lewis, “Comparative Negligence: An Exercise in Applied Justice,” 5 St. Mary’s L.J. 655, 665 (1974).

The appellants’ point of error is overruled, and the judgment of the trial court is affirmed.

AFFIRMED.


author: HALL, Justice.

text:
    TEXAS PET FOODS, INC., Appellant, v. The STATE of Texas, Appellee.
    No. 5859.
    Court of Civil Appeals of Texas, Waco.
    Feb. 8, 1979.
    Rehearing Denied March 15, 1979.
    Appellant’s Second Motion for Rehearing Denied March 29, 1979.
    Appellee’s Second Motion for Rehearing Denied April 5, 1979.

      Vance Dunnam and W. V. Dunnam, Jr., Dunnam, Dunnam & Dunnam, Waco, for appellant.
    John L. Hill, Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Troy C. Webb, Chief Asst. Atty. Gen., Douglas G. Caroom, Asst. Chief Asst. Atty. Gen., W. Thomas Buckle, Asst. Atty. Gen., B. J. Skip New-som, Jr., Asst. Atty. Gen., Environmental Protection Div., Austin, for appellee.
   HALL, Justice.

Defendant-appellant Texas Pet Foods, Inc., operates a poultry rendering plant which by a process of cooking converts chicken and turkey offal, including feathers, into a protein supplement for animal feeds. The plant is located in McLennan County near the City of Waco, and is adjacent to the Brazos River.

Appellee State of Texas brought this suit to permanently enjoin defendant from allegedly violating and threatening to violate certain provisions of the Texas Clean Air Act (Article 4477-5, Vernon’s Tex.Civ.St.), the Texas Renderers’ Licensing Act (Article 4477-6, Vernon’s Tex.Civ.St.), the Texas Water Quality Act (V.T.C.A., Water Code § 21.001 et seq.), and permits issued to defendant under those Acts; and for the assessment of monetary penalties provided in those Acts for asserted past violations by defendant.

There are six cookers in the plant. Feathers and lungs are rendered together separately from the other offal. After cooking, the feather-lung mixture is conveyed mechanically through a dryer, then a grinder, then in the form of meal into a storage bin. The other material'follows the same route after leaving the cookers, except that its first stop is an expeller where oil is pressed from it and run into a tank, and it does not pass through the dryer. Under optimum plant conditions odors from the raw materials, the cookers, the expeller, the dryer, the finished meal, and the water used in the processing are controlled and eliminated through a “scrubber system” in the plant and a “ridge-and-furrow system” in fields outside the plant for water disposal. Interworking with these systems and necessary to their proper functions, are fans, steam condensers, water-chlorination equipment for oxidizing particulate, filters, grease traps, recycle pumps, and a “hot well” aeration tank. Maintained and operated at maximum efficiency, the auxiliary equipment prepares vapors and the air in the plant for odor elimination in the scrubber system, creates a “negative air pressure” in the plant which pulls the air and vapors through the scrubber system for elimination of odors, and also cleanses the water of all particulate and heavy odors before it is released to the ridge-and-furrow system for disposal. If the auxiliary equipment fails to work or is permitted to operate inefficiently, the scrubber system and the ridge-and-furrow system cannot properly perform their odor-elimination functions.

The ridge-and-furrow system is a “no-discharge system” consisting of three five-acre tracts upon which the water is released under required measured-flow in “three-day, three-field rotations.” A reed grass cover-crop is cultivated on the ridges for transpirative disposal of the water and aerobic elimination of any odors remaining in it. Water is also eliminated from the ridge- and-furrow fields by surface evaporation and by percolation through the underlying soil. The system was not designed for disposal of organic material, and any such solids reaching the furrows will putrefy and cause odors.

Air in the plant is released to the outside through the scrubber system which is “the heart of the air pollution control equipment.” The scrubber system consists of two parts. The first is a venturi-type scrubber which is designed to remove heavy odors, oil droplets, fine meal droplets, and other particulate from the air inside the plant. The second scrubber, the primary one, is a pack scrubber with packing material which will not function properly if contaminated with particulate matter. It is designed to handle only plant air from a low-odor source. It cannot handle the high-intensity odors coming from the cookers, expellers, dryers, and other plant areas; but an efficiently operated venturi scrubber will precondition the plant air and heavy odors for elimination by the pack scrubber.

Trucks delivering offal to the plant enter through an “air curtain” which is a series of fans designed to help maintain the negative pressure in the plant and thereby prevent the escape of odors at the truck entrance. If the plant is not kept sufficiently airtight the air curtain cannot function properly, the negative pressure in the plant is affected adversely, and the scrubber system is rendered less effective.

The case was tried to a jury, beginning on August 2, 1976. Thirteen violations alleged by State against defendant were submitted to the jury for their determination. In their verdict, returned to the court on August 16, 1976, the jury made the following answers to the special issues:

(1) Failed to find that defendant “caused, suffered, allowed, or permitted the emission of odors from its rendering plant property in such concentration and of such duration as to adversely affect or tend to adversely affect human health or welfare or to interfere with the normal use and enjoyment of property on any day from May 1, 1973, to August 2, 1976.”
(2), (3) These issues called upon the jury to find the number of days that odorous emissions occurred and to set defendant’s penalty for each daily violation within the statutory limits at not less than $50.00 nor more than $1,000.00; but because issue number one was answered “no,” the jury did not reach these issues.
(4), (5), (6) Found that on nine separate days between September 5, 1975, and August 2, 1976, defendant “failed to have installed proper hooding and duct work to pull all emissions from either its hotwell, its feather meal holding tanks, its conveying system from the holding tanks to the driers, or its feather meal driers, through the venturi scrubber; and set defendant’s penalty at $50.00 for each day of the violation.
(7), (8), (9) Found that on thirteen separate days between September 5, 1975, and August 2, 1976, defendant “failed to control openings to its rendering plant building so as to maintain a negative pressure within the building”; and set defendant’s penalty at $50.00 for each day of the violation.
(10), (11), (12) Found that on thirteen separate days between September 5, 1975, and August 2, 1976, defendant “failed to maintain its air pollution abatement equipment in a fully operable and functioning condition”; and set defendant’s penalty at $50.00 for each day of the violation.
(13), (14), (15) Found that on forty separate days between May 1, 1973, and August 2, 1976, defendant “discharged solids to its ridge-and-furrow field system”; and set defendant’s penalty at $50.00 for each day of the violation.
(16) Failed to find that defendant “allowed water to stand in its ridge-and-furrow field system for more than twenty-four hours on any day” between May 1,1973, and August 2,1976.
(17), (18) These were subsidiary time and penalty issues conditioned upon an affirmative answer to issue number (16), and accordingly were not answered.
(19), (20), (21) Found that on twenty-four separate days between May 1, 1973, and August 2, 1976, defendant “failed to maintain a good cover crop on its ridge-and-furrow field system”; and set defendant’s penalty at $50.00 for each day of the violation.
(22) Failed to find that defendant “failed to provide an accurate flow-measuring device for water transmitted to the ridge-and-furrow field system” on any day between May 25, 1973, and August 2, 1976.
(23), (24) These time and penalty issues conditioned upon an affirmative answer to issue number (22) were not answered.
(25) Failed to find that defendant discharged any industrial waste into the Brazos River on July 11, 1975.
(26) This penalty issue conditioned upon an affirmative answer to issue number (25) was not answered.
(27), (28), (29) Found that during 1973, 1974, and 1975, defendant failed to submit two annually-required chemical analyses of the water in its water supply well located at its rendering plant to the Texas Water Quality Board, and set defendant’s penalty at $50.00 for each of the two violations.
(30), (31) Found that defendant installed a third feather meal dryer on July 30, 1975, without first obtaining a permit from the Texas Air Control Board; and set defendant’s penalty at $50.00 for the violation.
(32), (33), (34) Found that on 478 separate days between April 11, 1975, and August 2, 1976, defendant operated its sixth cooker without having applied to the Texas Air Control Board for an operating permit for the cooker; and set defendant’s penalty at $50.00 for each day of the violation.
(35) Failed to find that defendant “constructed or operated a wastewater holding pond immediately adjacent to its wastewater disposal fields on any day subsequent to December 31, 1973, without first obtaining a construction permit from the Texas Air Control Board.”

In three alternative motions, defendant moved the court to disregard the jury’s answer to special issue 33, asserting (1) there was no evidence that defendant operated its sixth cooker on any day between April 11, 1975, and August 2, 1976; (2) the jury’s answer of 478 days of operation was excessive by 475 days because the evidence showed only that the sixth cooker had been operated three days during the time in question; and (3) the jury’s answer of 478 days was excessive by 138 days because the undisputed evidence showed that defendant’s plant was not operated on Saturdays and Sundays during the period in question. The State moved the court for judgment non obstante veredicto on special issues 1, 2 and 3, asserting (1) that the evidence conclusively established that on 265 separate days between May 1, 1973, and August 2, 1976, defendant caused or permitted the emission of odors from its plant property of such concentration and duration as to adversely affect human health and welfare and to interfere with normal use and enjoyment of residential property in the area of the plant; and (2) that the minimum civil penalty of $50.00 should therefore be assessed against defendant for each daily violation. The State also moved for judgment non obstante veredicto on special issues 22, 23 and 24, asserting (1) that the evidence conclusively established that on every day between May 25, 1973, and August 2, 1976, totaling 1,164 separate days, defendant failed to provide an accurate flow-measuring device of water transmitted to the ridge-and-furrow system; and (2) that the minimum civil penalty of $50.00 should therefore be assessed against defendant for each daily violation.

The motions filed by both parties were overruled. On August 26, 1977, judgment was rendered on the verdict and on “such additional considerations and findings [by the court] as were authorized by law having been had and made.” The judgment provided that the State should recover $29,-000.00 civil penalties from defendant (based on the jury’s findings); and it also provided that defendant should be permanently enjoined in certain respects involving the future operation of its rendering plant. The decretal portions of the judgment provided as follows:

“It is therefore ORDERED, ADJUDGED AND DECREED that Plaintiff, State of Texas, do have and recover of and from the Defendant, Texas Pet Foods, Inc., the sum of TWENTY-NINE THOUSAND ($29,000) DOLLARS as civil penalties for violations of Texas Air Control Board Construction Permit C-691 and Operating Permit R-691, Construction Permit C-2831 and Construction Permit C-3608 as well as Sections 3.27, 3.28 and 4.01 of the Texas Clean Air Act, Article 4477-5, Vernon’s Annotated Civil Statutes, as well as for violations of Texas Water Quality Waste Control Order No. 00991, and the Texas Water Quality Act, Section 21.251(c), Texas Water Code, for which let execution issue;
“It is further ORDERED, ADJUDGED AND DECREED that Defendant, Texas Pet Foods, Inc., its officers, agents, representatives and employees, are each and all permanently enjoined as follows:
1) Defendant is mandatorily enjoined to keep the immediate premises of the Texas Pet Foods rendering establishment in a clean and neat condition reasonably free from undue collection of refuse, waste materials, insect breeding and standing pools of water, and during all operating hours shall keep all floors in processing areas reasonably free from processing waste, including blood, manure, scraps, grease, water, dirt and litter, and in conjunction therewith specifically enjoined to thoroughly clean said rendering plant floors at the end of each day’s operation;
2) Defendant is mandatorily enjoined to control all openings to said rendering plant building and in connection therewith specifically enjoined to maintain a negative pressure within the building at all times so that all plant air is treated through Defendant’s air pollution abatement equipment;
3) Defendant is prohibitorily enjoined from operating poultry by-product processing equipment unless all air pollution abatement equipment and associated control mechanisms and instruments are likewise in operation and is mandatorily enjoined to maintain said equipment in a fully operable and functioning condition during all operating hours and in connection therewith Defendant shall:
a) Maintain proper hooding and duct work within the rendering plant building so as to efficiently pull all emissions from the hot well, feather meal holding tanks, the conveying system from the holding tanks to the dryers, and from each feather meal dryer through the Venturi scrubber during all operating hours; and
b) Continuously add sodium hyperchloride or equivalent chemical solution to the pack tower scrubber solution so as to maintain a residual chlorine concentration of not less than one part per million in the scrubber water leaving the rendering plant building;
4) Defendant is prohibitorily enjoined from engaging in any modification or initiating any new construction at Defendant’s facility where such modification or new construction may result in the emission of air contaminants without having first applied for and obtained a construction permit, and once obtained, Defendant shall not operate said modification or new construction for more than sixty (60) days without having first applied for an operating permit from the Texas Air Control Board;
5) Defendant is mandatorily enjoined to submit the results of quarterly obtained water well samples analyzing nitrate nitrogen, ammonia nitrogen, total nitrogen, total dissolved solids, chlorides, sulphates, and potassium concentrations to the Texas Water Quality Board at yearly intervals by December 31 of each year wherein said quarterly samples are to be taken;
6) Defendant is mandatorily enjoined to remove the layer of organic solid materials covering the top soil within the Texas Pet Foods ridge and furrow system and is prohibitorily enjoined from discharging grease, floating materials and solids to said ridge and furrow field system;
7) Defendant is prohibitorily enjoined from transmitting wastewater from Defendant’s processing facility to any one of three fields within Defendant’s ridge and furrow field system unless the receiving field receives wastewater only one day out of every three, or, when such field is taken out of rotation with the approval of the Waco Regional Office of the Texas Air Control Board, one day out of every two;
8) Defendant is mandatorily enjoined to maintain a good cover crop within the ridge and furrow field system for the effective transpiration of wastewater generated to said system;
9) Defendant is mandatorily enjoined to maintain accurate daily flow records for the amount of water daily transmitted to each field included within the Texas Pet Foods ridge and furrow field system;
10) Defendant is mandatorily enjoined to maintain all trailers and vehicles used in the conveyance of raw poultry byproduct materials to the Texas Pet Foods facility in a leak-proof condition at all times that said trailers and vehicles are operated on public roads and highways; and
11) Defendant is prohibitorily enjoined from causing or contributing or threatening to cause or contribute to the emission of odors or other air contaminants into the atmosphere in and around the Texas Pet Foods rendering facility in such concentration and of such duration as are or may tend to be injurious to or adversely affect human health or welfare, or as to interfere with the normal use and enjoyment of animal life, vegetation or property.”

Express findings of fact were not made by the court.

The State’s right to injunctive relief against defendant is based solely upon the provisions of § 4.02(a) of the Texas Clean Air Act, § 19(b) of the Texas Renderers’ Licensing Act, and § 21.253(b) of the Texas Water Quality Act, supra. Each of those statutes requires a finding of a present violation or a threatened violation of the Act to which it relates before injunction may issue.

No issues were submitted to the jury inquiring about present or threatened violations, and the State did not request any. The issues submitted inquired only about past violations during specific periods of time which ended with the beginning of the trial on August 2, 1976. Since there was no finding by the jury that defendant was actually committing or was threatening to commit the acts which were enjoined by the court, there was no legal basis for the injunction, unless the evidence conclusively established present or threatened violations. We shall later show that those facts were not conclusively established.

The State refers to the recitation in the judgment that it was based not only upon the verdict but also upon “such additional findings by the court as were authorized by law,” and asserts that the injunction is supported by the court’s implied findings. We reject that contention. Where the right to a permanent injunction depends on the existence of a fact, the parties are entitled to a jury trial. 31 Tex. Jur.2d 301, Injunctions, § 187. It is provided in Rule 279, Vernon’s Tex.Rules Civ. Proc., that upon appeal of a case submitted to a jury on special issues, “all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived.” Accordingly, the State waived its right to the injunction in question. Rule 279 also provides in part that if one or more of a cluster of issues necessary to sustain an independent ground of recovery are submitted to and answered by the jury, and if one or more of such issues are omitted without objection of the defendant, and if there is evidence to support a finding thereon, and if no express findings are made by the court on the omitted issue or issues, then “such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment.” The State contends that because defendant did not object to the failure of the court to submit special issues inquiring about present violations and threatened violations, those issues must “be deemed as found by the court” in support of the injunction under the provisions of Rule 279. We disagree. Issues dealing with present or threatened violations, which would have supported the remedy of injunc-tive relief, were not necessary to sustain the remedy of the assessment of monetary penalties for past violations. Neither would the State have needed findings of past violations in order to secure an injunction based upon findings of actual or threatened violations. The remedies are independent of each other. Defendant was not required under Rule 279 to object to the court’s failure to submit any special issues relating to the State’s remedy of injunction. Rather, as we have said, by failing to request those issues the State waived the remedy.

Acts and practices occurring prior to the suit will not, alone, support injunc-tive relief. 31 Tex.Jur.2d 69, Injunctions, § 22. However, evidence showing that an activity complained against has been a settled course of conduct by the defendant continuing to or near the time of trial raises the presumption and will support a finding, absent proof to the contrary, that the activity will continue. Texas Pet Foods, Inc. v. State, 529 S.W.2d 820, 827 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.). The State asserts that rule supports the injunction, here, but we cannot agree. First, the only finding which can be said to show a past violation “continuing to or near the time of trial” is the finding in answer to special issue 33 that for 478 days to the date of trial defendant operated its sixth cooker without a permit. Second, there is an abundance of proof which would have supported findings that defendant did not intend to continue that violation or the other past violations found by the jury. Accordingly, it was the State’s burden to seek and secure favorable findings on those questions. Rule 279, supra. There is evidence that in 1973 defendant spent $200,000.00 for air pollution control equipment and renovation of the plant building; that in the twelve months immediately preceding the trial it spent an additional $100,000.00 toward improvement of the plant pollution control equipment and over-all operation of the plant; that after the roof was damaged by a storm in April, 1975, a new steel and concrete roof was installed at the cost of $25,000.00; that in August, 1975, defendant spent over $30,000.00 overhauling its electrical equipment, and employed the electrical contractor to thereafter inspect the equipment each Monday and authorized him “to do whatever is necessary to keep the motors and electrical equipment in top condition”; that during the three years preceding the trial defendant installed three new boilers at a cost of $82,000.00; and that defendant properly maintains the ridge- and-furrow system, and replants the grass when it dies, and that the fields are operating effectively. There was testimony by two engineers employed by the State Air Control Board that during July, 1976, defendant made “favorable changes” in the hooding and duct work and “began taking adequate steps” through the use of chemicals to clean the pack-scrubber system; that the hooding is “now effective”; that the air pollution abatement in defendant’s plant is “a very good one” and “appears to be operating in a normal fashion, except for the mist eliminator”; that defendant recently added two sieves on the water flow to the fields; and that defendant now does “a pretty good job of washing the floors.” Additionally, on January 1, 1976, the State licensed defendant to operate its rendering plant for the year 1976, expressly stating in the license that defendant had “complied with the provisions” of the Texas Render-ers’ Licensing Act. That Act is titled, “An Act to promote the health, safety, and welfare of the people by regulating the business of transporting, processing, or disposing of rendering raw material, and the bodies of dead animals, poultry, or any parts thereof, by burying, burning, cooking, or processing.” Acts 1969, 61st Leg., p. 184, ch. 78, eff. Sept. 1, 1969. Defendant’s witnesses, including a mechanical engineer and an expert in environmental studies, testified that the odor abatement system in defendant’s plant, “the machinery and everything,” is properly maintained and operated and is operating properly and efficiently; that proper negative air pressure is maintained in the plant; that the ridge- and-furrow system is in “good shape”; that “the plant is working beautifully, today”; and that the odors inside the plant and in the ridge-and-furrow fields are minimal and are detectable only a short distance off defendant's premises, if at all. Defendant’s president testified that he has continuously attempted to improve the operation of the plant and the efficiency of the equipment; that he has installed two venturis and three boilers, although only one of each is required by the State; that he had done everything requested of him by the Air Control Board, the Water Control Board, “or anybody else”; and that he is now “ready and willing to spend whatever money is necessary to do whatever is requested that should be done in the operation of this plant that is feasible to do ... I always did in the past and I will act the same in the future.” His testimony shows that defendant had not applied for a permit to operate the sixth cooker, but he testified that the cooker had been used with the express knowledge and permission of the State’s enforcement officials. It is reasonably inferable from the record that the State was not particularly concerned with the operation of the sixth cooker until it began preparations for this lawsuit. Finally, after assessing a penalty of $23,900.00 against defendant for operating the sixth cooker without applying for a permit, we believe the jury could reasonably have determined that defendant would immediately apply for the permit to avoid such penalty in the future.

The evidence shows that the sixth cooker has been in use in defendant’s plant since September 5, 1974. There is direct testimony that it was in operation on that day and on June 11,1976. The testimony of defendant’s plant manager and its president establishes that the cooking of offal begins at 4:00 P.M. on Monday through Friday each week and ends between 9:00 A.M. and 11:00 A.M. the next day, and that the balance of the day is devoted to cleaning operations. Defendant’s president stated that the plant processes approximately 70 tons of offal per day, and operates five and one-half or possibly six days per week, depending upon the tonnage coming in. He testified as follows: “Q. All right. Now, you have six cookers and the material is taken directly from the unloading area to the six cookers, is that correct? A. Right. Q. All right. I believe you testified that you can cook between ten and twelve thousand pounds in one cooker. Is that an accurate statement? A. That is correct. Q. So if you have got six cookers then that means you cook as much as 72,000 pounds at one time. Is that right sir? A. It’s true, if all the cookers were empty, let’s say, on Monday evening. Let’s say at 4:00 o’clock, if all the cookers are empty, that would be a true statement, we can load in there about 60,000 pounds . . .’’He said approximately two and one-half hours are required to cook a load of intestinal matter, “or a little more time depending on how much you load in a cooker,” and that a load of feathers cooks in about one hour.

The evidence we have recited is legally sufficient to support the jury’s finding that defendant regularly operated the sixth cooker during the period inquired about, including its operation on Saturdays; and, in the light of the entire record, we hold the finding is not against the great weight and preponderance of the evidence. Defendant’s contrary contentions are therefore overruled. However, we agree with defendant that there is no probative evidence that defendant operated the cooker on Sundays. We judicially know there were 69 Sundays between April 11, 1975, and August 2, 1976. Accordingly, the penalty assessed against defendant for operation of the cooker is excessive in the amount $3,450.00.

The State concedes there is no evidence that defendant used its cookers on Sundays, but it argues that the fact that the sixth cooker was in operable condition on Sundays supports the jury’s finding, citing State v. Harrington, 407 S.W.2d 467 (Tex.Sup.1966). We reject that argument. The Harrington case dealt with the illegal drilling and operation of a deviated oil well by the defendants across their own lease lines. The court held that proof that the defendants maintained the well in an unplugged state ready to produce its allowable established that the well “was being operated and maintained so as to attain the result appropriate to the nature of the enterprise,” the word “operated” meaning, there, “everything that is done to maintain an oil well so as not to abandon it.” The Harrington case is distinguishable on its facts from our case; and we do not believe its holding under those facts supports the State’s contention here.

The State has brought forward two counterpoints in which it assigns error to the court’s rulings on its motion for judgment non obstante veredicto on special issues 1, 2 and 3, which inquired about the emission of odors of certain concentration from defendant’s plant, and on special issues 22, 23 and 24, which asked whether defendant provided an accurate flow-measuring device for water transmitted to the ridge-and-furrow fields.

The State correctly acknowledges in its brief that “the majority of the evidence introduced in the trial court dealt with whether the Appellant had emitted odors from its rendering plant which either adversely affected the health or welfare of individuals living in the area, or interfered with the use and enjoyment of these individuals’ property.” In fact, direct proof on that question filled several hundred pages in the statement of facts, and we shall not detail it. Suffice it to say there was an abundance of testimony from lay and expert witnesses favorable to both the State and defendant.

Similarly, the record reveals conflicting testimony as to whether or not defendant provided a device for measuring the flow of water to its fields during the period in question, and whether two such devices which testimony shows the defendant did maintain at separate times throughout the period were accurate.

Under the record, the court properly overruled the State’s motions for judgment non obstante veredicto.

Other arguments and contentions are made by the parties. Some are rendered immaterial by our holdings, above. The remainder are without merit and are overruled.

The order granting the injunction is set aside; and judgment is rendered denying the State any injunctive relief against defendant. The judgment allowing the State a recovery of civil penalties from defendant in the sum $29,000.00 is modified to allow a recovery of $25,550.00. As so modified, the judgment is affirmed.

The costs of this appeal are taxed 60% against the State and 40% against defendant.

ON REHEARING

Both parties have filed motions for rehearing.

The State asserts our reasons for setting aside the injunction conflict with the holding of this court in Alamo Title Company v. San Antonio Bar Association, 360 S.W.2d 814 (Tex.Civ.App.—Waco 1962, writ ref’d n. r. e.). We disagree. In Adamo Title Company the proof showed that certain acts of unauthorized practice of law alleged against the defendant Title Company, if committed at all, were a settled course of conduct by the Title Company from 1954 to within four months of the trial held in April, 1961. The jury found the acts were in fact committed, and that the business affairs of the Title Company and the lawyer involved were “operated as a unit” during that full term of years. Accordingly, this court held that the ultimate facts established by the findings and the proof were sufficient to invoke the chancery powers of the trial court, and that under the facts of that case “the issue of expediency, necessity or propriety of equitable relief,” by way of injunction to prevent future violations by the Title Company, was an issue for the court and not the jury. On the other hand, unlike the record in Alamo Title Company, the record before us does not raise by findings nor by the evidence the presumption of future violations by defendant, necessary to invoke the equitable jurisdiction of the court for the issuance of the injunction in question. Moreover, in the present case, as shown by the jury’s answer to special issue number one, the State failed to secure a finding that past violations by defendant were damaging to the public health and welfare; whereas the unauthorized practice of law committed by Alamo Title Company per se endangered the public welfare. Finally, the Bar Association’s suit against Alamo Title Company was not based upon a statute requiring findings of present or threatened violations for injunc-tive relief. The holdings are not in conflict.

In our original opinion, when pointing to evidence which destroyed the presumption of continued violations by defendant, we made the statement that “there is an abundance of proof which would have supported findings that defendant did not intend to continue” past violations. We did not mean by that language, as the State suggests we did, “to make ‘intent’ to commit a proscribed act an element which must be proven in order to secure an injunction.”

Neither motion for rehearing contains meritorious complaints. Both are overruled.