author: BREWSTER, Justice.

text:
    JOHNS-MANVILLE SALES CORPORATION, Appellant, v. HADEN COMPANY, INC., Appellee.
    No. 17767.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 22, 1976.
    Rehearing Denied Dec. 3, 1976.

      Coke & Coke, and Thomas W. Craddock, Dallas, for appellant.
    Vial, Hamilton, Koch, Tubb, Knox & Stradley, and James H. Baumgartner, Jr., Dallas, for appellee.
   OPINION

BREWSTER, Justice.

This is an appeal by Johns-Manville Sales Corporation from an order overruling its plea of privilege to be sued in Dallas County. The case originated when Marshall Erdman and Associates, Inc., as plaintiff, brought suit in Wichita County against the Haden Company, Inc., and Johns-Manville Sales Corporation, as defendants, seeking to recover damages allegedly resulting from defective asbestos panels manufactured by Johns-Manville and allegedly installed to the exterior of the Wichita Palls Clinic Hospital by Haden Company, Inc. It was there alleged that Johns-Manville had furnished defective panels for use in the construction of the hospital. In that action Johns-Man-ville filed a plea of privilege, and the trial court sustained that plea of privilege and transferred the cause of action alleged by plaintiff, Marshall Erdman, against Johns-Manville to Dallas County.

Marshall Erdman and Associates, Inc. was the prime contractor for work being done on Wichita Falls Clinic Hospital in Wichita Falls, Texas. Haden Company, Inc. made a subcontract with Marshall Erd-man calling for Haden Company, Inc. to furnish certain labor and materials going into that job. Johns-Manville manufactured certain asbestos panels that it sold to Haden Company, Inc., and Haden Company, Inc. then installed those panels into the hospital involved.

After Johns-Manville’s first plea of privilege was sustained, the Haden Company, Inc., one of the defendants in the case above referred to, filed a third party action against Johns-Manville wherein it alleged that if it should be held liable to Marshall Erdman, that it was entitled to be indemnified by Johns-Manville on the ground that if the panels furnished by the latter were defective then the act of Johns-Manville in furnishing defective panels constituted a breach of implied warranty. When Haden Company, Inc. filed this third party action against Johns-Manville, the latter filed another plea of privilege. The Haden Company contended in the trial court that its third party action was properly maintainable in Wichita County under Subdivisions 4, 5, 14, 23, 27, 29a and 31, of Article 1995, Y. A. C. S. The trial court overruled the plea of privilege and this appeal is brought by Johns-Manville from that decree.

We reverse and order the case transferred to Dallas County.

We will refer to Johns-Manville as appellant, and to Haden Company, Inc., as appel-lee, throughout the balance of the opinion.

In oral argument counsel for appellee advised this Court that it no longer contended that venue of the case was in Wichita County by virtue of Subdivisions 4, 5, 14, 23, 29a and 31 of Art. 1995. It abandoned its contentions relative to those subsections.

We therefore sustain appellant’s points of error Nos. 1, 2, 3 and 4 without discussion. They are devoted to appellant’s contention that the subsections referred to do not entitle appellee to maintain venue of this case in Wichita County.

The undisputed evidence is that appellant is a foreign corporation with an office in Dallas, Texas. Appellee is a corporation with its offices also being located in Dallas, Texas.

The controlling question on this appeal is whether or not appellee can keep venue of the case in Wichita County under Subdivision 27, Art. 1995, on the theory that a part of the cause of action accrued in that County.

Appellant’s 5th and 6th points of error are that the court erred in overruling its plea of privilege because there is “no evidence” and “insufficient evidence” to show that this action or any part thereof accrued in Wichita County, Texas.

Appellant’s 7th point of error is that the trial court erred in overruling its plea of privilege because its implied finding that the cause of action or a part thereof accrued in Wichita County, Texas, is so against the great weight and preponderance of the evidence as to be clearly wrong.

We sustain appellant’s 5th, 6th and 7th points of error.

Appellee’s action was founded entirely on its claim that appellant had breached an implied warranty in its contract by which appellee had purchased the asbestos panels involved from appellant in that such asbestos panels sold and delivered by appellant to appellee were not fit for the purposes for which they were intended. Appellee contended that in the event Erdman and Associates, Inc., recovered from it, that appellee was therefore entitled to be indemnified for such loss by the appellant.

Subdivision 27, Art. 1995, provides: “Foreign corporations . . . doing business within this State, may be sued in -any county where the cause of action or a part thereof accrued, or in any county where such company may have an agency or representative, or in the county in which the principal office of such company may be situated; . . .

The trial court did not file findings of fact and conclusions of law and none were requested. We must on this appeal therefore presume that the trial court found the facts to be in support of its judgment if there is sufficient evidence to support such findings. Gilmore v. Transit Grain & Commission Co., 213 S.W.2d 880 (Tex.Civ.App., Fort Worth, 1944, no writ hist.). It is also true that if there is evidence to support a presumed finding that the exception contained in Art. 1995, Sec. 27, is applicable, then this Court is required to accept said evidence as true and sustain the findings of the trial court. McGriff v. Hazle, 201 S.W.2d 92 (Tex.Civ.App., Eastland, 1947, no writ hist.).

In order to establish venue in Wichita County under Art. 1995(27), appellee’s burden at the venue hearing was to establish by a preponderance of the evidence all of the elements of the cause of action alleged, and that the cause of action or a part thereof arose in Wichita County, Texas. Permaspray Mfg. Corp. v. Permaspray Mfg. Corp., a Delaware Corp., 490 S.W.2d 866 (Tex.Civ.App., Fort Worth, 1973, no writ hist.).

A venue exception permitting suit to be brought in any county in which the cause of action, or a part thereof, arose, means that either some part of the transaction creating the primary right, or some part of the transaction relating to the breach of that right, must have occurred in the county wherein the suit is brought. Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex, 568, 91 S.W.2d 674 (1936).

In this case the following facts are undisputed: the precontract meeting between the representatives of Marshall Erd-man, Haden Company, Inc., and Johns-Man-ville at which the panels and methods of installing them were discussed occurred in Dallas County; the order for the panels was given to Mr. Royer, Johns-Manville’s representative, at Haden Company’s Dallas County office; the panels were shipped by Johns-Manville from Waukegan, Illinois, to Haden Company, Inc. in Dallas; upon receipt and acceptance of the crated panels, Haden Company, Inc. stored them for two or three weeks in its Dallas County warehouse, at which place it cut the panels into smaller sheets; and Haden Company, Inc., then transported the panels to Wichita County and installed them at the jobsite.

Bill Martin testified that the panels appeared slightly warped when they were still at Haden Company’s Dallas warehouse, but that he did not complain. There is also considerable evidence that the warpage of the panels occurred in Wichita County about six months after installation.

Appellee’s contention is that because the warpage occurred in Wichita County and because Johns-Manville knew or had reason to know of the purpose for which the panels were to be used in Wichita County, a part of the cause of action thus arose in Wichita County. Appellee also contends that because the defects were not apparent until after the panels were installed in the building in Wichita County, that the cause of action did not accrue before that time and that it thus accrued in Wichita County.

We disagree with appellee’s contentions. The Supreme Court in Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (1936), expressly rejected those contentions. In that case Forbess had deposited funds in defendant bank at Nac-ogdoches in Nacogdoches County. Forbess then drew a draft on that bank in favor of the First National Bank in Canyon, Texas. This was done in Randall County. The Canyon Bank then presented the draft for payment at the Nacogdoches Bank. The defendant, in Nacogdoches County, refused to pay the draft. The plaintiff, Forbess, then sued the Nacogdoches Bank in Randall County. That defendant filed a plea of privilege. The question as to whether or not the cause of action or a part thereof arose in the county of suit was involved. The Court of Civil Appeals in passing on the venue question had held that where the venue exception involved makes it permissible to sue in any county where a part of the cause of action arose, the plaintiff can bring suit against the defendant (a private corporation) in any county where the plaintiff suffers damages, notwithstanding the fact that the corporation has taken no part in any transaction producing such damages in the county where the suit was brought. The Supreme Court, in overruling that holding, said at page 677 the following:

“Under the record before us, if appellee has any right of action against appellant within the meaning of the part of exception 28, supra, under consideration, it consists of two elements, both of which arose entirely in Nacogdoches county, viz.: His primary right which arose out of the transaction by which he became an ordinary or general depositor in appellant bank, and appellant’s violation of that primary right by its refusal to pay the checks drawn against that deposit. Both the transaction creating the primary right and the transaction constituting the violation of that right occurred wholly in Nacogdoches county. It follows that within the meaning of that part of exception 23, supra, under consideration, no part of appellee’s cause of action arose in Randall county, or anywhere outside of Nacogdoches county.”

See also on this point American Quarter Horse Association v. Rose, 525 S.W.2d 227 (Tex.Civ.App., Fort Worth, 1975, no writ hist.).

In this case the order was placed with appellant by appellee in Dallas County. The goods were delivered to the carrier in Illinois and accepted by appellee in Dallas County. No part of the contract was made or performed in Wichita County.

Appellee’s contention was that as a part of the contract by which it purchased the panels from appellant, the appellant had impliedly warranted that the panels were not defective and that they were fit for the purposes for which they were purchased. Appellee’s further contention is that the warranty was breached by appellant in that the panels sold and delivered to it by appellant were defective, and were not fit for the purposes for which they were purchased.

When and where did defendant breach such contract?

The breach of the warranty occurred when the appellant failed to perform his obligation or his part of the contract. This failure or breach occurred at the time that the allegedly defective goods were delivered by appellant to appellee. This delivery did not occur in Wichita County. It occurred either in Illinois or in Dallas, and it is not necessary for us to determine which of the two places it occurred in deciding this case. American Warehouse Co. v. Ray, 150 S.W. 763 (Tex.Civ.App., San Antonio, 1912, writ ref.); El Paso & S. W. R. Co. v. Eichel & Weikel, 130 S.W. 922 (Tex.Civ.App., 1910, er. ref.); and McCaskill v. Clay, 284 S.W. 643 (Tex.Civ.App., Amarillo, 1926, no writ hist.).

The following is from the American Quarter Horse Association v. Rose, supra, at p. 231: “ ‘In our opinion the argument confuses injury caused by the breach of contract by AQHA with the breach itself. It is the wrongful breach of contract upon which the cause of action is founded, and nothing constituting any part thereof was shown to have occurred in Tarrant County.’ ”

What this Court said in that case applies with equal force to this case.

Appellee also contends that the policy of courts toward avoiding a multiplicity of suits precludes the granting of appellant’s plea of privilege in this case. We disagree. The policy toward avoiding a multiplicity of suits will not be permitted to defeat a plea of privilege directed toward a cross-claim filed by a defendant against a third party defendant in instances where the plaintiff’s action against the third party defendant is not properly maintainable in the county of suit. See McDonald, Texas Civil Practice, Vol. 1, § 4.39, note 82.

In this case it was undisputed that appellant’s plea of privilege filed in response to Marshall Erdman’s suit against it had already been sustained. The action which plaintiff had filed in the case against appellant was therefore not properly maintainable in Wichita County.

We reverse and order the case transferred to Dallas County pursuant to Rule 89, T. R. C. P.


source: Caselaw Access Project

author: WARD, Justice.

license: Public Domain

text:
    F. L. LIVINGSTON, Appellant, v. ATLAS PIPE & EQUIPMENT COMPANY, Appellee.
    No. 6559.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 27, 1976.

      Jennings, Montgomery, Dies & Turner, Frank L. Jennings, Graham, for appellant.
    Turpin, Smith & Dyer, Thomas L. Lowry, Robert R. Truitt, Jr., Midland, for appellee.
   OPINION

WARD, Justice.

This is a venue case. Atlas Pipe & Equipment Company sued F. L. Livingston on an open account. The plea of privilege asked transfer to Archer County. The controverting affidavit sought to retain venue in Midland County under Subdivisions 5, 9, and 12 of Article 1995, Tex.Rev.Civ.Stat. Ann. The trial Court overruled the plea. The judgment below is reversed and the case is transferred to the District Court of Archer County.

The suit is on an open account arising from goods delivered and services performed by the plaintiff for the defendant, and the pleadings are properly verified in accordance with Rule 185, Tex.R.Civ.P. Attached to the petition are two exhibits marked “A” and “B” in the form of invoices from the plaintiff and addressed to the defendant totaling the sum of $8,939.33. At the hearing on the plea of privilege, the plaintiff offered in evidence the plaintiff’s original petition with the two attached exhibits and the controverting plea, and then rested. Neither party introduced any further evidence.

We are first confronted with an attack on the Appellant’s brief for failure to comply with Rule 418, Tex.R.Civ.P. The Appellant’s points and statement are in correct form, but the argument is presented by copies of letters addressed to the trial Court in the form of memorandum briefs. The brief fails to comply with the Rule, and is not to be recommended. However, the Ap-pellee’s complaint is overruled due to the meager evidence produced at the hearing, with the resulting simplicity of the case and the fact that the defendant’s position is made clear by his brief.

The defendant’s plea of privilege contained no sworn denial regarding the account as called for by Rules 93(k) and 185, and it is the plaintiff’s position that such failure admitted all of the plaintiff’s cause of action. The defendant’s first point attacks this position and asserts that the trial Court erred in overruling the plea of privilege as Subdivision 5 is inapplicable. Proof of a plaintiff’s cause of action is one thing, but such proof does not necessarily sustain venue under Subdivision 5, where the vital venue facts are proof of a written contract and proof that the particular obligation sought to be enforced by the suit is required by the contract to be performed in Midland County. In this case, the two invoices in evidence are headed up with the plaintiff’s name followed by the words “Midland, Texas.” Place of payment is not shown. Terms are shown as “Net” and “Interest will be charged on past due accounts.” The evidence to sustain venue in Midland County asserted on a cause of action arising from a failure to pay a debt is totally lacking. While the place of payment may be implied from the invoices to be in Midland County, such an implication cannot be used to fix venue under Subdivision 5. H. Molsen & Co., Inc. v. Harp and Lovelace, 516 S.W.2d 433 (Tex.Civ.App.-Amarillo 1974, no writ); H. Molsen & Co., Inc. v. Raines, 534 S.W.2d 146 (Tex.Civ.App.-El Paso 1975, writ dism’d); Heath v. Gilbreath, 536 S.W.2d 404 (Tex.Civ.App.-El Paso 1976, no writ); and Black v. Bryant, 308 S.W.2d 231 (Tex.Civ.App.-Waco 1957, writ dism’d).

The statement of facts offers no evidence whatsoever to show that Sections 9 and 12 of Article 1995 are applicable. The failure of the defendant to pay the alleged debt does not establish a crime under the terms of Section 31.04, Tex.Penal Code Ann., and the allegations and prayer of the plaintiff’s petition are totally foreign to the requirements of Section 12.

The Appellant’s points are sustained. The judgment of the trial Court is reversed and judgment is here rendered that this case be transferred to the District Court of Archer County.

PRESLAR, C. J., not sitting.


author: McDONALD, Chief Justice.

text:
    George TAGGART et al., Appellants, v. Thomas W. CREWS, Appellee.
    No. 5623.
    Court of Civil Appeals of Texas, Waco.
    Oct. 28, 1976.
    Rehearing Denied Nov. 26, 1976.
    Perkins, Davis, Oden & Warburton, Homer E. Dean, Jr., Alice, for appellants.
    Grose & Erck, Clyde L. Wright, Jr., Alice, for appellee.
   OPINION

McDONALD, Chief Justice.

Appeal by plaintiff Taggart, and Interve-nor (plaintiff) Compton from a take-nothing judgment against defendant Crews, in Taggart’s suit for specific performance of a contract for sale of land, and Compton’s suit for real estate commission.

Taggart sued Crews alleging Crews or his agent Compton made Taggart an offer to sell 1965 acres of land for $135. per acre; that Taggart accepted such offer and tendered performance; that Crews refused to perform; that Taggart was beneficiary of a contract between Crews and real estate agent Compton; and prayed for specific performance of the contract.

Compton intervened as a plaintiff alleging he is a licensed real estate broker; that he entered a written contract with defendant Crews whereby he was authorized to sell Crews’ 1965 acres of land to Taggart for $135. per acre; that Crews agreed to pay him a 3% commission; that Compton procured Taggart as purchaser; that Crews breached the contract and refused to sell to Taggart; and prayed for 3% commission plus attorney’s fees.

Crews answered that his contract with Compton (Exhibit 4) was a listing contract to sell the land; that it was delivered to Compton subject to the occurrence of two expressed conditions precedent: 1) that the sale must be made with approval of his banker, and 2) with approval of his tax attorney; that Compton accepted delivery of such listing contract subject to such conditions precedent and with full knowledge of same; that such conditions precedent never occurred; and Crews is not liable to Taggart or to Compton.

Trial was to a jury which found among other matters:

Issue 15) Exhibit 4 was delivered conditioned upon the approval of Crews’ Banker and Tax Attorney.
Issue 16) Crews’ Banker and Tax Attorney did not approve the terms of the proposed sale.

The trial court rendered judgment on the verdict plaintiff Taggart and Intervenor Compton take nothing.

Taggart appeals on 11 points and Compton appeals on 21 points pertinent contentions of which are summarized:

1) The trial court erred in rendering judgment for Crews; and in admitting oral testimony that Crews delivered the real estate sales contract and listing agreement (Exhibit 4) conditioned upon the approval of his banker and tax attorney; in violation of the parol evidence rule and the Statute of Frauds.
2) The trial court erred in admitting testimony of Crews that his banker and tax attorney did not approve the terms of the letter offer of sale of May 1, 1973, because such testimony was hearsay.
3)There is no evidence to support the jury’s answers to Issues 15, and 16; and/or such answers are against the great weight and preponderance of the evidence.

Compton is a real estate broker who specializes in farm and ranch sales. He testified he generally works off a letter listing agreement prepared by him and submitted to the land owner for acceptance. When Compton has a specific prospect in mind before he prepares the letter listing agreement, he usually writes the prospect’s name in the letter listing agreement. Taggart contacted Compton in January, 1973, telling him he was interested in buying land. Compton learned Crews might sell his ranch in Duval County, and told Crews he had a prospect. Crews said he wanted $135. per acre. Compton showed the ranch to Tag-gart on April 30,1973. Taggart told Compton and Crews he liked the ranch but had to get his partners’ concurrence. Compton prepared a letter listing agreement dated April 27, 1973, providing for a 6% commission for Crews acceptance, but Crews told Compton “his banker told him he couldn’t sell at that price and pay a commission.” Compton then prepared Exhibit 4, (which Crews signed) and is as follows:

“Mr. Tom Crews

1328 Lincoln Dr.

Alice, Texas 78332

Dear Mr. Crews:

This letter will confirm our agreement on a 60 day listing from May 1, 1973, for Compton & Compton Company, to sell 1965 acres * * in Duval County, owned by you, to George Taggart, III.

The sale price is $135. per acre, or a total price of $265,275. This is to be the cash price. Also this price is for surface only, no minerals or royalties go with this land.

Our sales commission will be the normal 3%. You will agree to furnish a policy of title insurance.

The 6 deer blinds go with the ranch, but farm implements * * * are not included.

Compton and Compton agree to use diligence to procure a purchaser according to terms hereof.

Sincerely,

Compton & Compton Accepted:

/s/ W. A. Compton, Jr.

W. A. Compton, Jr. /s/ Thomas W. Crews

Tom Crews”

Taggart on May 8,1973, advised Compton that he agreed to purchase the ranch on the terms contained in the letter; and on June 28, 1973 Taggart wrote Compton accepting the terms of the letter agreement of May 1, 1973; and advised Crews by telegram on June 29, 1973 that he was accepting the terms of the May 1, 1973 contract.

Crews refused to convey the property, and Taggart sued for specific performance of the May 1, 1973 letter contract, contending he was a third-party beneficiary of such contract; and Compton by intervention sued for asserted 3% commission.

The trial court permitted Crews to testify over objection that at the time he signed the May 1, 1973 letter listing contract, and many times prior to signing same, he told Compton that any sale made had to be 1) agreed to by his banker, and 2) by his tax attorney; and that any sale was conditioned on these two matters; that he told Compton when Compton was trying to get him to sign the listing agreement “it would have to be ok’d first by my banker and tax attorney”; and that these were the conditions under which he signed and delivered the agreement to Compton. Crews further testified that Mr. Wallace, his tax attorney or Mr. Goldapp his banker, did not at any time approve the sale or transaction.

The witness Priestly who was with Compton and Crews when they were discussing the sale of Crews’ ranch, testified he heard Crews make conditions to Compton that his banker Mr. Goldapp and his tax attorney Mr. Wallace must approve before he could sell. Priestly further testified that these conditions “were apparent to Compton”.

The evidence is ample to sustain the jury’s findings 15) that Exhibit 4 was delivered conditioned upon the approval of Crews’ Banker and Tax Attorney; 16) that Crews’ Banker and Tax Attorney did not approve the terms of the proposed sale; and such findings are not against the great weight and preponderance of the evidence, In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellants assert evidence of the conditions of delivery were in violation of the Parol Evidence Rule and the Statute of Frauds; and that Crews’ testimony that his banker and tax attorney did not approve the sale was hearsay.

Appellants cite Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515 for the rule: “In general, extrinsic evidence cannot be introduced to contradict or vary the intention of the parties as set out in the written contract by showing the existence of a prior or contemporary oral understanding contrary to the terms of the written contract,” and assert such is controlling here.

But Denman v. Hall distinguishes the above rule from a conditional delivery, and cites with approval Farrar v. Holt, Tex.Civ.App., 178 S.W. 618, reciting: “Holt sued Farrar for commissions allegedly earned by procuring a purchaser for Farrar’s homestead, on a written listing agreement, Far-rar answered that when the contract was made and delivered it was specifically understood that it was not to become operative unless his wife consented, and that she did not agree to it. Pointing out that these allegations did not have the effect to modify or alter the terms of the written agreement, the court held that they presented a good defense.”

Our Supreme Court held in Baker v. Baker, 143 Tex. 191, 183 S.W.2d 724: “The rule that parol evidence is inadmissible to contradict or vary the terms of a written instrument applies only to a written contract in force as a binding obligation. Parol evidence is always competent to show the nonexistence of a contract, or the conditions upon which it may become effective.”

And Moore v. Wilson, Tex.Civ.App., Er. Ref., 138 S.W.2d 1099 states: “If it [a contract] is delivered into the possession of the grantee upon a special condition * * it is but a conditional delivery; and such delivery does not become absolute, and the instrument does not become effective, until the happening of the contingency provided for. In such case it is proper to show the stipulated condition, to which end the true facts and circumstances evidencing the intention and agreement of the parties may be shown by parol evidence, and when thus ascertained will be given effect.”

The San Antonio Court expressed the rule thusly in Juliani v. Fitz-Gibbon, Tex.Civ.App., 234 S.W.2d 448. “The general rule, of course, is that you cannot vary the terms of a written contract by parol evidence * * *. However, there is a well recognized exception to this general rule to the effect that you can always show that a written contract was delivered with the understanding that it was not to become effective until the happening of some future event and unless and until that event happened the contract does not come into existence as such and cannot be enforced.”

Thomason v. Berry, Tex., 276 S.W. 185; Perry v. Little, Tex.Civ.App., NRE, 377 S.W.2d 765; and Brewer v. Tedford, Tex.Civ.App., NRE, 447 S.W.2d 479 are to the same effect.

The evidence was admissible, was not in violation of the Parol Evidence Rule or the Statute of Frauds; and Crews’ testimony that his banker and tax attorney did not approve was not hearsay.

All appellants’ points have been considered and are overruled.

AFFIRMED.


author: MOORE, Justice.

text:
    Mrs. Paula GARCIA, Appellant, v. BURLINGTON NORTHERN, INC., et al., Appellees.
    No. 945.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 28, 1976.
    Rehearing Denied Dec. 2, 1976.

      John C. Connolly, Houston, for appellant.
    Clinton S. Morse, Andrews, Kurth, Campbell & Jones, Houston, for appellees.
   MOORE, Justice.

This is an automobile-train collision case involving an application of the doctrine of discovered peril.

Mrs. Paula Garcia, hereinafter referred to as appellant, filed suit against Burlington Northern, Inc.; Chicago Rock Island and Pacific Railroad Company; Fort Worth and Denver Railway Company; and Emory E. West, engineer, under the Texas Wrongful Death Act and Texas Survivor’s Statutes for personal injury and wrongful death of her husband, Albert A. Garcia, and her son, Richard Garcia. The jury exonerated the railroad companies and the engineer of any act of primary negligence and found contributory negligence on the part of the deceased driver of the automobile, Albert A. Garcia, in that (1) he was guilty of failure to keep a proper lookout, (2) he failed to apply his brakes, and (3) he failed to stop within 50 feet and not less than 15 feet from the track which constituted negligence per se under Tex.Rev.Civ.Stat.Ann. art. 670Id sec. 86 when the train was plainly visible and was in hazardous proximity to the crossing in question before deceased’s automobile reached a point 15 feet from the nearest rail of the railroad track. The jury further found that each of these acts of contributory negligence was a proximate cause of the collision. Pursuant to such findings the trial court rendered judgment on the verdict that appellant take nothing, and she has prosecuted this appeal.

Upon oral argument before this court, appellant waived all points of error assigned in her brief, save and except the point of error urging that the trial court erred in refusing to submit her requested issues seeking a recovery based on the doctrine of discovered peril.

There is a sharp contradiction between the theory of the appellant and that of the appellees as to how the collision occurred. While the appellant takes the position that there was some evidence establishing the elements of discovered peril and therefore such issues should have been submitted to the jury, the appellees contend that the evidence in the record before us shows conclusively, and as a matter of law, that the agents, servants and employees of the railroads did not discover the deceased’s peril in time to avoid the collision. The appellees further contend that the evidence shows conclusively, and as a matter of law, that the operators of the train used all of the means at hand to avoid the collision once they discovered the plaintiffs’ perilous position.

In order to establish a cause of action predicated on the doctrine of discovered peril, appellant was required to prove (1) that the deceased was in a position of peril, (2) that either the engineer or the brakeman discovered his peril, (3) that the engineer or brakeman realized that the deceased, in reasonable probability, could not or would not extricate himself from his peril in time to avoid the injury, (4) that the engineer or brakeman discovered and realized such peril of deceased within such time and distance that by the use of ordinary care they could have avoided the collision, (5) that the engineer or brakeman failed to exercise ordinary care to use all means at his command to avoid injury to deceased; and (6) that such failure was a proximate cause of the death of Garcia and his minor son. The plaintiff bore the burden of proof on each of these issues. It is not sufficient that the defendant could have or should have realized the perilous position of the plaintiff, but rather, the plaintiff must show actual discovery and realization by defendant in time to avoid the collision. Gentry v. Southern Pac. Co., 457 S.W.2d 889 (Tex.1970); Texas & N. O. Ry. v. Hart, 163 Tex. 450, 356 S.W.2d 901 (1962); Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162 (1961); R. T. Herrin Petroleum Transp. Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422 (1960); Parks v. Airline Motor Coaches, Inc., 145 Tex. 44, 193 S.W.2d 967 (1946).

In determining whether the plaintiff has adequately discharged this burden, we must view and interpret the evidence in the record in the manner most favorable to the appellant, disregarding all evidence and inferences therefrom favorable to the appellees. Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Ford v. Panhandle & S. F. Ry., 151 Tex. 538, 252 S.W.2d 561 (1952).

The collision occurred at about 3:00 p. m. near the outer city limits of the City of Houston, Texas, where the appellee’s track crosses West Little York Road. At the point of the collision, the track crosses the road at approximately a right angle and runs north and south. The deceased was driving west on West Little York Road as the train approached from the north. The weather was clear to partly cloudy and the visibility was good. The train in question consisted of four diesel engines, 121 freight cars, weighed 12,000 tons and was over a mile in length. The view of the crossing was unobstructed so that a motorist traveling west on West Little York Road, as deceased was traveling, could have observed the approaching train long before it or his car would reach the crossing. The evidence shows that from a point on the highway 300 feet east of the crossing, the train would be visible for at least a mile before it reached the crossing. Although the crossing was not equipped with any type of automatic warning signal, the usual black and white crossing signs known as “crossbucks” were in place near the crossing and there was a yellow and black highway warning sign on the right-hand side of West Little York Road at a point approximately 350 feet east of the crossing. There is nothing in the evidence to indicate that the crossing was an extra hazardous crossing and the jury so found. At the time of the accident, the deceased and his minor son were proceeding to their home which was located a short distance east of the crossing.

J. E. Campbell, the trainman or brakeman, testified that as the train approached the crossing going south, he was sitting on the left of the lead engine, the side from which the deceased approached; that he was situated 10 to 12 feet above ground level and could see down West Little York Road several hundred feet because the road curved so that it ran almost parallel to the track after it reached a point approximately 300 feet east of the crossing; that he first saw the automobile when it rounded the curve in the road at a point approximately 400 feet from the crossing and he estimated the speed of the automobile to be 30 miles per hour. He testified that at that point the train was approximately 600 feet from the crossing and was traveling at a speed of approximately 30 to 40 miles per hour. Campbell further testified that he continued to keep the automobile in view and had no reason to become alarmed since the automobile was being driven in a normal manner and was not proceeding at a high rate of speed and under these circumstances he had no reason to believe the driver would not stop; that as he watched the automobile approach the crossing it slowed down as if it would stop; that at a point approximately 30 to 45 feet from the crossing the automobile had slowed to approximate 15 miles per hour and by the time it was about 20 feet from the crossing it had slowed to approximately 6 to 7 miles per hour but when it reached a point about 10 feet from the crossing the driver suddenly accelerated as if to get across ahead of the train. At that point Campbell testified that he told the engineer, “It’s going to hit” or words to that effect. Simultaneously therewith, or a little before, the engineer, who was also watching the automobile, applied the emergency brake. Campbell estimated that at the time the train went into emergency the front of the engine was approximately 40 feet from the crossing. He further testified that although there was an emergency brake valve situated on his side of the train about 3 feet from where he sat, he did not attempt to use it because at the same time he realized the deceased was attempting to get across ahead of the train, the engineer had already placed the train in emergency.

The engineer, Emory West, testified that he was seated on the right side of the engine cab, thus sitting on the opposite side from the brakeman. He estimated the speed of the train as it approached the crossing to be 35 to 36 miles per hour. He testified that he first saw the Garcia automobile when it was 200 to 250 feet from the crossing and at that time the automobile was traveling approximately 25 to 30 miles per hour; that the vehicle seemed to be making a normal approach and it appeared to him that the driver was decreasing his speed; that at a point approximately 50 feet from the crossing the deceased was traveling at about 15 miles per hour and it appeared that the automobile would stop. At that point, West testified the deceased suddenly accelerated the speed of his automobile and by the time the automobile reached the crossing West estimated the speed of the automobile to be 25 miles per hour. He testified that when he realized the deceased had accelerated his speed and would attempt to beat the train across the crossing, the engine was approximately 50 feet from the crossing at which time he immediately applied the emergency braking system; that although the brake slowed the train by approximately one to two miles per hour, due to the weight and momentum of the train, it was impossible to stop before striking the center of the automobile; and that after the train struck the automobile it traveled approximately 2200 feet before coming to a stop. According to his testimony, a train of this weight traveling at 35 to 36 miles per hour could not be brought to a stop in less than 2200 feet after application of the emergency brake. Finally, West testified that as he approached the crossing he constantly blew the whistle and rang the bell.

Ron Johnson, an accident investigator called by appellant, testified that at a point on West Little York Road 180 to 200 feet east of the crossing a motorist could see the train several thousand feet before it reached the crossing. At a point 550 feet from the crossing a motorist could also see the train several thousand feet before it reached the crossing but between these two points there were shrubs and bushes that would obscure the vision of the train. In the course of Johnson’s testimony the appellant propounded the following hypothetical question: Assuming that the brakeman first saw deceased when the train was 600 feet from the crossing, and assuming the train continued to travel at 45 miles per hour as testified by the brakeman, and assuming as the brakeman also testified, that when he first saw the deceased, the deceased was 400 feet from the crossing traveling at 30 miles per hour and slowed to a point 15 to 20 feet from the intersection to 7 to 10 miles per hour, would the front end of the train have collided with the automobile? Johnson answered that it would not, explaining that if the automobile slowed down as testified to by the engineer and brakeman, the front end of the train would not have collided with the deceased because the deceased’s automobile would not have reached the track. He further testified that the only way for the accident to have happened under the hypothetical fact situation would have been for the speed of the automobile to have remained constant. Johnson also testified that if the automobile had traveled at the rate of 35 miles per hour and the train had been slowed by one-third of a second, then the automobile would have crossed the track ahead of the train.

Michael Price, age 17, testified that he was a high school student at Aldine High School. On the date of the accident, he and his girlfriend and another couple were returning home from school in his girlfriend’s automobile which he was driving. On their route home they had crossed the railroad track on two previous occasions that afternoon and had seen the train and at that time the train’s headlight was not on. After crossing the track the second time, they proceeded south to Alabonson Street which was located about 375 feet east of the railroad track and ran approximately parallel to the track. They then proceeded south on Alabonson Street to a point where it intersected West Little York Road. At° this point they stopped at a stop sign. While awaiting for the traffic to clear, Price testified that he observed the Garcia vehicle traveling west on West Little York Road toward the railroad track. He estimated the speed of the deceased’s automobile to be 35 to 40 miles per hour. He testified that he watched the vehicle, without taking his eyes off of it until he saw the train and automobile collide. He also testified that at no time did the deceased’s vehicle slow its speed, nor did it increase its speed during the 375 feet it traveled as he observed it. While he testified that he did not see the brake lights of the automobile come on, there is no evidence that the brake lights were in proper working order at the time in question. He estimated the speed of the train to be 40 to 50 miles per hour and testified that he did not hear the train’s whistle or bell at the time of the accident. He further testified that the wheels on the locomotive were not locked at the time of the collision. Price admitted that from where he was situated he could only see the rear end of deceased’s vehicle as it traveled the entire distance toward the crossing. Photographs and other exhibits demonstrate this statement to be correct. The witness, Ron Johnson, testified he had measured the distance between the track and the point on Alabonson Street from which Price observed the accident and found it to be 391 feet.

J. R. King, an expert witness called by the appellees, testified that the braking system on the train was not designed so that the application of the emergency brake would cause the wheels on the locomotive to lock. He explained that if the wheels locked, the wheels would slide on the track and would take longer to slow or stop the train.

Our question is whether there is evidence of probative force to support all of the elements necessary to establish a cause of action founded on discovered peril. It is obvious that at some point the deceased was in a position of peril. There is no question that the operatives of the train discovered the deceased prior to the collision because they so testified. It becomes necessary, therefore, to determine whether there was any evidence of probative force showing that the operatives of the train realized, in time to have avoided the collision, that the deceased was in a position of peril, and was pursuing, and probably would continue to pursue, a course which would likely result in his injury. Texas & N. O. Ry. v. Hart, supra.

Discovery “in time” is one of the essential elements in the establishment of liability under discovered peril. Parks v. Airline Motor Coaches, Inc., supra; Turner v. Texas Co., 138 Tex. 380. 159 S.W.2d 112 (1942). Here, as in most cases involving the doctrine of discovered peril, the vital issue becomes the element of time, and, as is so often the case, the critical period is depicted by fuzzy approximations of speed, distance, reaction time and braking time.

The only direct evidence as to when the train operatives discovered that deceased was in a perilous position and would not extricate himself is to be found in the testimony of the engineer and the brakeman. According to their testimony, it appeared to them that the deceased was going to stop, but his actions proved to be deceptive because at a point 30 to 50 feet from the track he suddenly accelerated his speed as . if to beat the train across. They testified that at the time they discovered that the deceased was in a position of peril and probably could not extricate himself, the train was approximately 40 to 50 feet from the crossing and although the emergency brake was applied immediately, it was impossible to slow the train or stop it in such a short distance due to its weight and momentum. We must, of course, disregard this testimony as adverse to appellant, but in so doing we are left with no direct testimony as to when the operatives of the train actually discovered the perilous position of the deceased.

Appellant urges that the discovery of peril, in time to avoid injury, may be proved by circumstantial evidence. We agree, but we note that there must be facts and circumstances demonstrated from which reasonable inferences may be drawn with at least some degree of accuracy. As we view the record, the circumstantial evidence is not of sufficient probative force to warrant submission of the cause to the jury on the issue of discovered peril. While actual discovery of the injured party’s perilous situation may be established by circumstantial evidence, the circumstances must be such as to fairly warrant the inference that there was actual discovery or actual knowledge of the perilous situation in time to have avoided the injury. Dupree v. Burlington-Rock Island Ry., 251 S.W.2d 559 (Tex.Civ.App.-Galveston 1952, writ ref’d).

The doctrine of discovered peril does not make it the duty of the operatives of a train to bring it to a stop every time they observe a vehicle approaching a crossing. Terrall v. Midwest Farms Div. of Southland Corp., 494 S.W.2d 633 (Tex.Civ.App.-Texarkana 1973, no writ); Texas & N. O. R. R. v. Grace, 144 Tex. 71, 188 S.W.2d 378 (1945). If the operator of a train does not make such discovery and does not achieve such realization in time to avoid the injury, the doctrine of discovered peril does not apply. Texas & N. O. R. R. v. Grace, supra.

Appellant contends that the testimony of the operatives of the train and the testimony of Michael Price, when construed most favorably to her, show that at the time the train was 600 feet from the crossing traveling at 45 miles per hour, the automobile was 400 feet from the crossing traveling at 30 miles per hour and that these circumstances were sufficient to establish that the automobile and the train were on a collision course and remained on a collision course until the instant of the collision. Appellant argues that the brakeman had actual knowledge of these facts and should have warned the engineer to stop the train before the train reached a point only 50 feet from the crossing and that the failure to put the train in emergency before reaching a point 40 to 50 feet from the crossing was negligence and but for such negligence the train would have been slowed enough to permit the deceased to have crossed the track in safety.

In order to establish circumstantially that the operatives of the train had knowledge of the fact that the train and the deceased were traveling on a collision course, it would be imperative that appellant offer some proof that the deceased’s rate of speed remained constant at the rate of 30 miles per hour from the time he was first observed by the fireman until the moment of the collision. We fail to find any evidence of probative force to establish such fact. The brakeman did not so testify. On the contrary, he testified the deceased continually slowed his speed until shortly before the collision when he accelerated his speed. While the witness, Michael Price, testified that the deceased’s speed remained constant throughout the last 375 feet before the collision, he testified that the deceased was traveling at the rate of 35 to 40 miles per hour. Under his testimony the two instrumentalities could not have been traveling on a collision course. If his testimony as to the deceased’s speed is correct, the automobile would have no doubt passed over the crossing before the train arrived. In any event, we do not believe that his testimony that the speed of the deceased’s vehicle remained constant from the time he first saw it until the time of the collision was of sufficient probative force to show that the operatives of the train were charged with knowledge that a collision would probably occur. Being situated at a point directly behind deceased’s vehicle as it traveled the 391 feet toward the crossing, he was in a poor position to determine whether the speed remained constant. As we view it, his testimony raises no more than a surmise or suspicion of the fact sought to be established and constitutes nothing more than a mere scintilla: Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Murphy v. Whitehurst, 300 S.W.2d 758 (Tex.Civ.App.-San Antonio 1957, ref’d n. r. e.). In the absence of some probative evidence showing that the speed of deceased’s vehicle remained constant at 30 miles per hour from the time it was first observed by the brakeman until the time of the collision, it cannot be inferred that the operatives of the train had knowledge of the fact that they were on a collision course with deceased’s vehicle and that they would arrive at the crossing at precisely the same time.

While the fact that the deceased continued to approach the crossing should have alerted the engineer and brakeman of the danger, such does not constitute evidence that they actually discovered the deceased’s peril and realized he could not extricate himself in time to have avoided the collision.

When the operatives of the train first discovered the deceased approaching the crossing, they had a right to assume that he would stop before reaching the crossing. Both ordinary care for his own safety and Tex.Rev.Civ.Stat.Ann. art 6701d, sec. 86 required the deceased to stop at least 15 feet before reaching the crossing. Therefore, the operatives of the train had a right to regulate their conduct accordingly. Unless the injured driver is inattentive to the danger and operatives of an oncoming train are aware of this fact, the operatives of a train are entitled to assume that the driver is in possession of his normal faculties, and that he will either stop or that he will not attempt to cross ahead of the train unless he can do so at a rate of acceleration which will enable him to cross safely. There is no evidence whatever in this case that the deceased was inattentive, or if he was, that the operatives of the train were aware of it.

The perilous position in a crossing collision such as this arises only when the operatives of a train realize that the automobile driver cannot or will not extricate himself and that a collision is imminent. It is not until this instant that a duty devolves upon the operatives of a train to use the means at their command to avoid the collision. Sisti v. Thompson, 149 Tex. 189, 229 S.W.2d 610 (1950); Terrall v. Midwest Farms Div. of Southland Corp., 494 S.W.2d 633 (Tex.Civ.App.-Texarkana 1973, no writ).

In order for appellant to have established a case for the jury on discovered peril, it was essential for the appellant to have offered evidence which would support a reasonable inference that there was an actual discovery or that the operatives of the train had actual knowledge of the perilous situation in time to have avoided the injury. The “could have” or “should have” standard for measuring the proof required to raise the discovery issue is not recognized in this state. Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162 (1961). Also there must have been time, after discovery of the peril and lack of possible extrication, for mental reaction, as well as action to avert injury. Terrall v. Midwest Farms Div. of Southland Corp., supra.

Upon disregarding the testimony of the operatives of the train as to when they actually discovered deceased’s perilous situation, we are left without any testimony or inference as to how far the train was from the crossing when the discovery of the peril and realization occurred. Without any evidence to support a reasonable inference that the operatives of the train actually discovered or had knowledge of the perilous situation before the time they admitted having such knowledge, it is only possible to speculate as to whether they gained knowledge of the perilous situation before they said they did, and if so, whether they gained such knowledge in time to avoid the collision. There is no evidence that an earlier application of the emergency braking system would have slowed the train enough to have avoided the collision. Therefore, a finding by the jury of such facts would have been based entirely upon speculation and thus, appellant’s reliance on the holding in Ford v. Panhandle & S. F. Ry., supra, is misplaced. There is a marked distinction between the present case and Ford in that the movements of the automobile undér the evidence were reasonably predictable in the Ford case. There the testimony of the fireman showed that at a specific point at a considerable distance he was aware of the peril well before the train reached the crossing. Furthermore, in Ford there was evidence showing that an application of the emergency brake at anytime before the train reached the crossing would have afforded the necessary time for the automobile to have passed over the track unharmed. In the present case, there is no evidence showing that the movement of the automobile was reasonably predictable. The operatives of the train in the instant case certainly did not admit that the movement of the automobile was predictable as the fireman had admitted in Ford.

We have carefully reviewed the evidence presented and have concluded that it failed to raise the issue of discovered peril.

The judgment is accordingly affirmed.


author: NYE, Chief Justice.

text:
    In the Matter of the MARRIAGE OF Jody Martin PARR and Archer Parr.
    No. 1140.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 29, 1976.
    Rehearing Denied Nov. 24, 1976.

      A. J. Pope, III, Corpus Christi, for appellant.
    Oscar Spitz, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This case is an appeal from the dismissal for want of prosecution of the divorce suit between Jody Parr (now deceased) and Archer Parr. Prom this dismissal without a determination of the claim for attorneys’ fees by the attorneys for Jody Parr, the appellant, Bonnie M. White, Administratrix of the Estate of Jody Martin Parr, deceased, has perfected her appeal to this Court.

On June 25, 1973, Jody Parr filed suit for divorce against Archer Parr in the Court of Domestic Relations in Nueces County in Cause Number 118,573. In addition to Mrs. Parr’s petition for diyorce, she asked for an award of reasonable attorneys’ fees to be assessed against Archer Parr. About one week later, July 3, 1973, Archer Parr filed suit for divorce against Jody Parr in the 229th District Court of Duval County in Cause Number 8705. On July 13, 1973, the Court of Domestic Relations in Nueces County issued a temporary restraining order which restrained Archer Parr from taking any further action in the divorce action pending in the 229th District Court of Du-val County. On this same day, the Judge of the 229th District Court set for hearing the questions of alimony pendente lite and a request for temporary injunction filed by Archer Parr. Mrs. Parr’s request for alimony pendente lite and temporary injunction in the Court of Domestic Relations of Nuec-es County were set for hearing on July 20, 1973. However, Mrs. Parr’s attorneys appeared at the July 13th hearing in Duval County, served the temporary restraining order on Archer Parr and then filed a plea in abatement in the Duval County divorce suit, alleging the prior pendency of the Nueces County divorce suit as grounds for abating the Duval County divorce action. In a hearing on the plea in abatement in the Duval Court, Mrs. Parr’s attorneys presented evidence on her plea in abatement. The Duval County Judge recessed the hearing without taking any action on the plea in abatement. On July 17, 1973, Archer Parr filed a verified response to the plea in abatement alleging bad faith and fraud on the part of Mrs. Parr in the filing of the Nueces County divorce action. A further hearing on the plea in abatement was held on July 19, 1973, in Duval County but again no ruling was made on the plea.

On July 20,1973, a hearing on the temporary restraining order issued July 13, 1973, was held in the Nueces Court. At this hearing, Archer Parr filed an answer challenging the right of Mrs. Parr to the temporary orders and informing the Nueces Court of the then pending plea in abatement filed in the Duval County suit. After an extensive hearing in Nueces County Court, the Court refused to proceed with the hearing pending the outcome of the Duval County hearing on the plea in abatement. After another hearing on the plea in abatement that was held in Duval County on August 15, 1973, the Duval Court overruled Mrs. Parr’s plea in abatement on August 25, 1973. About nine months later, Mrs. Parr again asked the Nueces Court to set a hearing for alimony pendente lite. The Nueces Court denied this request on the grounds that since the Duval Court had denied her plea in abatement, the Nueces Court could not grant any affirmative relief.

On June 13, 1974, Mrs. Parr died. Motions to dismiss both the Nueces and Duval suits were filed by Archer Parr. Bonnie M. White, Administratrix of the Estate of Mrs. Parr filed an answer to the motion to dismiss in the Nueces Court seeking an allowance of some $135,000.00 in attorneys’ fees against Archer Parr. On October 28, 1974, the Duval Court held a hearing on Archer Parr’s motion to dismiss. At the conclusion of this hearing, the Court dismissed the suit and awarded $3,500.00 in attorney’s fees against Archer Parr to Mrs. Parr’s attorney, William Bonilla. William Bonilla perfected an appeal from the judgment to the Fourth Court of Civil Appeals. The appeal, however, was only on the question of attorney’s fees. The Fourth Court of Civil Appeals affirmed the judgment of the Duval Court in awarding William Bonilla $3,500.00 attorney’s fees. See Bonilla v. Parr, Docket No. 15,418 (Tex.Civ.App.-San Antonio April 7, 1976).

On February 13, 1976, the Nueces Court set a hearing for March 10, 1976, on the matter of whether the divorce suit should be dismissed for want of prosecution. On April 20, 1976, after finding that no one representing Mrs. Parr had appeared to prosecute the cause, the Nueces Court dismissed the divorce suit for want of prosecution. On May 7, 1976, Bonnie M. White, Administratrix of the Estate of Jody Martin Parr, deceased, filed a motion to reinstate the case. The motion was denied, whereupon Bonnie M. White perfected the appeal to this Court.

The appellant in her second point of error presents the controlling question involved in this appeal. The appellant complains that the Court of Domestic Relations of Nueces County was the only Court which had exclusive jurisdiction over the divorce between Jody and Archer Parr and, therefore, the only Court which had jurisdiction to assess attorney’s fees.

The first question presented by this point of error is whether or not an attorney is entitled to an award of attorney’s fees against a respondent where no final divorce is granted and the suit is dismissed. A husband may be liable for the attorney’s fees of the wife when the suit is dismissed and no final decree of divorce is awarded. Under § 3.65 Tex.Fam.Code Ann. (1975) and its predecessor, Art. 4641, Tex. Rev.Civ.Stat.Ann., a divorce court may award costs to any party as it deems reasonable. The case of Roberts v. Roberts, 144 Tex. 603, 192 S.W.2d 774 (1946) is particularly applicable to this situation. In the Roberts ease, the Supreme Court was presented with the certified question of whether or not it was error for a trial court to enter judgment in favor of a wife awarding attorney’s fees against a husband after the divorce action had been dismissed. The Supreme Court pointed out that in situations where there is no reconciliation between the parties but the divorce is dismissed for some other reason (as in the case at bar), it is entirely proper for the trial court to award reasonable attorney’s fees against the husband concurrent with its dismissal of the suit. See Couch v. Couch, 315 S.W.2d 64 (Tex.Civ.App.-Waco 1953, writ dism’d); Varn v. Varn, 58 Tex.Civ.App. 595, 125 S.W. 639 (1910, no writ); Ceccato v. Deutschman, 19 Tex.Civ.App. 434, 47 S.W. 739 (1898, no writ).

The next question raised by appellant’s second point of error is which court was the proper forum to decide the question of attorney’s fees. As was stated earlier, Mrs. Parr filed for divorce first in Nueces County. Next, Archer Parr filed for divorce in Duval County. Then simultaneously, Mrs. Parr temporarily enjoined Archer Parr from proceeding with the Duval County suit and filed a plea in abatement to the Duval County suit. Next, the Duval County Court denied Mrs. Parr’s plea in abatement. Finally, the Nueces Court refused to further enjoin Archer Parr and grant any other affirmative relief in the face of the denial of the plea in abatement filed in the Duval Court.

It is a well settled principal of law in this State that when one court denies a plea in abatement on the question of jurisdiction that court acquires dominant jurisdiction and the prior court action is postponed until a final disposition of the case is had in the second court. Johnson v. Avery, 414 S.W.2d 441 (Tex.Sup.1966); V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798 (1937); Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733 (1932); Parr v. Hamilton, 437 S.W.2d 29 (Tex.Civ.App.-Corpus Christi 1968, no writ). Based on these authorities, it appears clear to us that the Duval Court obtained the then present dominant jurisdiction over the divorce action upon its denial of Mrs. Parr’s plea in abatement. The appellant, however, is contending to this Court that the Nueces Court retained its dominant jurisdiction over the divorce action through the vehicle of the temporary restraining order prohibiting Archer Parr from proceeding with the Du-val County divorce proceeding. We do not agree.

The Nueces Court was incorrect in granting the temporary restraining order initially. However, such orders are usually issued only on the face of the pleadings and the appellant did plead that she had no adequate remedy. The Nueces Court corrected its error when, upon a hearing based on said restraining order, it refused to continue said order. An additional factor which mitigates against the appellant’s position is the fact that on the same day the appellant sought and obtained the temporary restraining order in Nueces County, she proceeded to file her plea in abatement in the Duval Court. This amounts to seeking both equitable and legal relief for the same problem at the same time. On the morning of July 13, 1973, the appellant was before the Nueces Court claiming no other remedy available except in equity and then that afternoon, she went to the Duval Court and pursued her legal remedy. Obviously, the prior existence of the restraining order was of no effect after the appellant filed her plea in abatement.

Since the Duval Court had dominant jurisdiction over the divorce proceeding, the next question is the effect to be given the judgment of that Court. The order of dismissal by the Duval Court was appealed to the Fourth Court of Civil Appeals. However, only the question of the reasonableness of the attorney’s fees awarded to William Bonilla was questioned on appeal. The order overruling appellant’s plea in abatement was interlocutory. Parr v. Hamilton, supra. If the appellant had disagreed with the denial of the plea in abatement, the proper forum to contest the question was at the appellate level. Since this was not done, the ruling by the Duval County District Court is now final. In its judgment dismissing the divorce action, the Duval Court heard evidence and made a determination on the question of entitlement to attorney’s fees. Since the Duval Court had dominant jurisdiction to decide this question, its decision became res judicata on the Nueces Court.

A judgment is res judicata when there is identity of rights, questions, or facts put in issue and directly determined by a court of competent jurisdiction and they cannot be disputed in a subsequent suit between the same parties or with another so identified in interest with such parties that he represents the same particular issue previously tried. McGuire v. Commercial Union Insurance Company of New York, 431 S.W.2d 347 (Tex.Sup.1968); Marange v. Marshall, 402 S.W.2d 236 (Tex.Civ.App.-Corpus Christi 1966, writ ref’d n.r.e.); White v. White, 380 S.W.2d 672 (Tex.Civ.App.-Tyler 1964, writ ref’d n.r.e.). The only way the appellant could have avoided the res judicata effect of the Duval Court’s judgment would have been to appeal from the denial of their plea in abatement after the dismissal of the cause by the Duval Court. This, they failed to accomplish.

In summary, the facts and law indicate that upon denial of the appellant’s plea in abatement, the Duval Court had dominate jurisdiction over the divorce action between Jody and Archer Parr. The jurisdiction of the Nueces Court was postponed and upon failure of the appellant to perfect an appeal from the denial of the plea in abatement, the Nueces Court became totally divested of any jurisdiction over the divorce. The Nueces Court was correct in dismissing the case. The better grounds for dismissal would have been for lack of jurisdiction but whatever the grounds, the action was correct. Appellant’s second point of error is overruled.

An additional ground for affirming the judgment of the trial court is the fact that appellant’s motion to reinstate the dismissed cause of action is not verified. Rule 165a, T.R.C.P. states that a cause which is dismissed for want of prosecution shall be reinstated upon finding, after hearing, that the failure of the attorney or the party seeking affirmative relief to appear was not the result of conscious indifference but was due to accident or mistake. The rule goes on to state that said motion to reinstate shall be verified by the movant or his attorney. A review of the record clearly reflects that the appellant’s motion to reinstate was only signed by the appellant and her attorneys. It was not verified as the rule provides. The trial court was correct in refusing to reinstate the appellant’s cause of action for this additional reason.

The judgment of the trial court is AFFIRMED.


text:
    J. Craig COWGILL, Receiver, Alamo Lumber Company, and Archer Parr, Appellants, v. Bonnie M. WHITE, Individually and as Administratrix of the Estate of Jody Martin Parr, Deceased, Appellee.
    No. 1072.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 29, 1976.
    Rehearing Denied Nov. 24, 1976.

      Myron M. Sheinfeld, Houston, Oscar Spitz, Corpus Christi, Homer E. Dean, Jr., Alice, for appellants.
    A. J. Pope, III, Corpus Christi, for appel-lee.
   OPINION

NYE, Chief Justice.

This case is an appeal from the action of the trial court which dismissed for lack of jurisdiction an interpleader action filed by a receiver in bankruptcy. The trial court dismissed the cause based on a motion filed by the appellee alleging that jurisdiction over the subject matter of the interpleader action was in the County Court at Law Number 1 of Nueces County where a probate proceeding involving the same property had previously commenced.

On October 30, 1973, the appellant was appointed Receiver for Jody Parr in a Chapter XI bankruptcy proceeding filed by Mrs. Parr in the United States District Court for the Southern District of Texas, No. 73-106. As Receiver, the appellant received from Mrs. Parr and holds certain real and personal property. On June 3, 1974, in Cause Number 8732, the 229th District Court declared the property being held by appellant to be the special community property of Archer Parr over which he had the right of management and control pursuant to a divorce proceeding between Mr. and Mrs. Parr then pending in the same court. Thereafter, appellant Archer Parr made a demand on appellant Cowgill to turn over said property to him. At the same time, appellee individually and as Administratrix made a similar demand on the appellant Cowgill claiming that as the sole devisee of the Estate of Mrs. Parr (who died on June 13, 1974) and as Administratrix of the Estate of Mrs. Parr, she had the exclusive right to possession and control of this property.

Faced with these conflicting claims, appellant Cowgill interplead the property into the trial court, claiming his position as stakeholder and asking the trial court to resolve the conflicting claims. Appellant Alamo Lumber Company filed a plea in intervention seeking to enforce a judgment lien of $14,000.00 against the interplead real property. Appellee then filed a motion to dismiss the interpleader action contending that the Nueces County Probate Court had sole and exclusive jurisdiction to determine the question of the right to possession of the interplead property. After a hearing on the motion to dismiss, the trial court dismissed the cause for want, of jurisdiction with prejudice.

The appellant’s points of error all complain that the trial court erred in dismissing the suit for lack of jurisdiction. The controlling question for our consideration is whether the statutory probate court had exclusive jurisdiction over this cause of action under Art. 5, § 8 of the Constitution and § 5 of the Texas Probate Code, or whether the district court had concurrent jurisdiction under Art. 5, § 8 of the Constitution.

This entire question arises under the 1973 Amendments to Art. 5, § 8, Constitution, and § 5 of the Probate Code. Prior to these amendments, original probate jurisdiction was in the county courts and appellate jurisdiction was in the district courts. The 1973 amendments gave both courts concurrent jurisdiction in probate matters. Also, before 1973, the Constitution in Art. 5, § 16 and § 4 of the Probate Code empowered county courts to transact all business “appertaining to estates”. This was in reality a lack of power and not a grant of power. In 1973, § 5 of the Probate Code was amended to give probate courts the power “to hear all matters incident to an estate . .” Under prior law, this would seem to include all matters pertaining to the settlement, partitions and distribution of an estate. Wells v. Gray, 241 S.W.2d 183 (Tex.Civ.App.-San Antonio 1951, writ ref’d); Elliott v. Elliott, 208 S.W.2d 709 (Tex.Civ.App.-Fort Worth 1948, writ ref’d n. r. e.); Zamora v. Gonzalez, 128 S.W.2d 166 (Tex.Civ.App.-San Antonio 1939, writ ref’d); McCanless v. Clough, 298 S.W. 643 (Tex.Civ.App.-Waco 1927, no writ); Boedker v. Boedker, 258 S.W. 566 (Tex.Civ.App.-San Antonio 1924, no writ); Buchner v. Wait, 137 S.W. 383 (Tex.Civ.App.-Galveston 1911, writ ref’d). See also Cole v. Franklin Life Ins. Co., 93 F.2d 620 (5th Cir. 1937).

Section 5 of the Texas Probate Code now provides in part that “(c) In those counties where there is a statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate . . . shall be filed and heard in such courts . rather than in district courts, . . . ” Therefore, the original jurisdiction over the Estate of Jody Parr was clearly in County Court at Law Number 1 of Nueces County. The only real question then is whether the interpleader action was incident to the settlement, partition and distribution of said estate or was simply a cause which fell within the general jurisdiction of the district court.

It is clear to us that this particular interpleader action was incident to the ultimate partition and distribution of the Estate of Jody Parr. There is no question but that the Decedent owned an interest in this property, which interest was, therefore, part of her estate. The question of whether or not it was community property and if so, how it was to be distributed between the Estate and Archer Parr, was a question within the exclusive jurisdiction of the probate court. Therefore, this issue was one which should have been brought before the probate court.

The next question presented by the appellants is whether or not the trial court erred in dismissing the cause of action with prejudice. In its judgment, the trial court ordered that the cause of action be dismissed for want of jurisdiction and that the cause be dismissed with prejudice. As a general rule, a dismissal with prejudice is res judicata and is conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff. See 149 A.L.R. 553, 625. Rosenthal v. Groves, 387 S.W.2d 920 (Tex.Civ.App.-Houston 1965, no writ); Dyches v. Ellis, 199 S.W.2d 694 (Tex.Civ.App.-Austin 1947, no writ). However, this action by the trial court must be narrowly construed to mean only that this judgment is res judica-ta to any further attempts by the plaintiff to bring this same cause of action in a district court.

It is the well settled law of this State that a judgment dismissing a suit for want of jurisdiction cannot be res judicata as to the merits and does not bar a plaintiff from bringing action on the same cause in a court having jurisdiction. New Friendship Baptist Church v. Collins, 453 S.W.2d 529 (Tex.Civ.App.-Houston [14th Dist.] 1970, no writ); Small v. Small, 434 S.W.2d 940 (Tex.Civ.App.-Waco 1968, writ ref’d n. r. e.); Miller v. Lloyds Alliance, 259 S.W.2d 777 (Tex.Civ.App.-San Antonio 1953, writ ref’d n. r. e.); Embry v. Lewis, 19 S.W.2d 87 (Tex.Civ.App.-Austin 1929, no writ); Adoue v. Wettermark, 28 Tex.Civ.App. 17, 68 S.W. 553 (1902, writ ref’d). Therefore, the judgment of the trial court was not res judicata as to the merits of the cause before the proper forum. The judgment dismissing this cause with prejudice was not error.

All of the appellants’ points of error are overruled. The judgment of the trial court is AFFIRMED.

      . An interesting commentary on the question is presented by Dean Ernest E. Smith, III and Professor M. K. Woodward of the University of Texas School of Law in the Supplement to Volume 17, § 9 of Texas Practice.


text:
    Archer PARR et al., Appellants, v. Bonnie M. WHITE, Administratrix, et al., Appellees.
    No. 1036.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 29, 1976.
    Rehearing Denied Nov. 24, 1976.

      Oscar Spitz, Marshall Boykin, III, Corpus Christi, for appellants.
    A. J. Pope, III, Corpus Christi, Homer E. Dean, Jr., Alice, David M. Coover, Asst. County Atty., Corpus Christi, Myron M. Sheinfeld, Houston, for appellees.
   OPINION

NYE, Chief Justice.

This case is an appeal from the judgment of the trial court dismissing Archer Parr’s (plaintiff’s) various causes of action and J & J Operating Company’s cross-actions and interpleader action for lack of jurisdiction. From this judgment, Archer Parr and J & J Operating Company have perfected their appeal to this Court.

On December 19,1974, Archer Parr, in his capacity as community administrator or alternatively, in his capacity as surviving partner of the marital partnership of himself and his deceased spouse, Jody Martin Parr, filed suit in the trial court against six separate defendants alleging separate causes of action against each defendant for conversion or interference with his alleged special community property, as follows:

First: appellant claimed a cause of action against J. Craig Cowgill for failure to turn over to him certain real and personal property, being held by Cowgill in his capacity as Receiver in bankruptcy. See opinion in Cause Number 1072, styled J. Craig Cowgill, Receiver, Alamo Lumber Company, and Archer Parr v. Bonnie M. White, Individually and as Administratrix of the Estate of Jody Martin Parr, deceased. 543 S.W.2d 437 (Tex.Civ.App.-Corpus Christi 1976) handed down this day.

Second: appellant asserted a cause of action against defendant Bonnie White for her action in filing an inventory and ap-praisement in the Estate of Jody Parr which he says constitutes a cloud upon the title to certain real property alleged to be the special community property of Archer Parr appellant. See Cause Number 1104, styled Archer Parr v. Bonnie M. White. 543 S.W.2d 445 (Tex.Civ.App.-Corpus Christi 1976) handed down this day.

Third: appellants asserted a cause of action against Joe White alleging that White held certain personal property which he states constituted special community property belonging to appellant Archer Parr.

Fourth: appellant asserted a cause of action against Mark White alleging he held an automobile which constituted special community property of Archer Parr.

Fifth: appellant alleged a cause of action against Judge Margarito Garza alleging that an order by Judge Garza staying a previous order appointing appellant community administrator was void for lack of jurisdiction and asked the trial court to void the stay order and remove the cloud cast by said stay order on the title to the special community property of the appellant.

Sixth: appellant claimed a cause of action against J & J Operating Company alleging that said company had converted and refused to repay certain oil and gas royalties to which appellant was entitled by virtue of their classification as his special community property.

Appellant J & J Operating Company filed a cross-action against Bonnie White, Individually and as Administratrix on an indemnity agreement whereby Bonnie White agreed to indemnify J & J Operating Company for any loss, damage or expense incurred for wrongful payment of the oil and gas royalties from the real property in question. J & J Operating Company also sought by cross-action and interpleader to plead all funds then in its possession into the registry of the court for a determination of the ownership of these funds.

On June 16, 1975, appellee Bonnie White filed a motion to dismiss the suit for lack of jurisdiction. As grounds for dismissal, the appellee asserted that the Nueces County Probate Court where an administration of the Estate of Jody Parr was then pending had exclusive jurisdiction over the matters raised by appellants. On July 14, 1975, the trial court dismissed with prejudice all of the appellants’ causes of action as to all defendants and the cross-actions for want of jurisdiction. On July 17, 1975, the trial court signed a second order of dismissal which again appears to have dismissed all causes of action, including the interpleader action, against all defendants and the cross-actions for lack of jurisdiction.

Before discussing the appellant’s points of error, it is appropriate to define and explain the significance of special community property, community administrator and surviving partner. Section 5.22 of the Texas Family Code defines special community property as that property that the husband or wife would have owned if single. Such property includes personal earnings, revenue from separate property, recoveries for personal injuries and increase and mutations of and revenue from special community property. Section 161 of the Texas Probate Code provides for a community administration whenever an interest in community property passes to someone other than the surviving spouse if the deceased failed to name an executor in the Will or the named executor fails to qualify or the deceased spouse dies intestate. If no community administrator has qualified, the surviving spouse, as surviving partner of the marital partnership, remains entitled under § 177(b) of the Probate Code to retain possession and control of all his or her special community property.

The appellant’s major point of error is that the trial court erred in dismissing the cause for want of jurisdiction. The controlling question presented by these points of error is whether the district court had jurisdiction to hear this cause of action under Art. 5, § 8, of the Constitution or the statutory probate court had exclusive jurisdiction over this action under Art. 5, § 8, of the Constitution and § 5 of the Texas Probate Code. As in Cause Number 1072, styled “J. Craig Cowgill, Receiver, Alamo Lumber Company, Archer Parr v. Bonnie M. White, Individually and as Administratrix of the Estate of Jody Martin Parr, Deceased”, supra, which was handed down this day, the basic question for our decision is whether or not these actions and cross-actions brought by the appellants were “incident to” the ultimate settlement, partition and distribution of the Estate of Jody Parr.

In order to determine whether each of the separate causes of action (including cross-actions) brought by the appellants were incident to the Estate of Jody Parr, we must look to each action to determine its true nature. In all of his alleged causes of action except for the action against Judge Garza, the appellant Archer Parr is seeking to either recover possession of, clear title to, or collect damages for the conversion of property he alleges to be his special community property. The first question any court presented with appellant Archer Parr’s claims would have to decide is whether the property in question was the special community property of the appellant. Since an administration of the Estate of Archer Parr’s deceased wife is also pending, the question of whether the property in question is community in nature is vital to the partition of the Estate. Under these circumstances, the actions raised by the appellant in reference to his alleged special community property were clearly incident to the partition of the Estate of Jody Parr and, therefore, were within the exclusive jurisdiction of the probate court to decide. We hold that the trial court did not err in dismissing these actions for want of jurisdiction.

Appellant Archer Parr also brought a cause of action against Judge Garza for his suspension of a previous order he entered appointing appellant Archer Parr community administrator of the Estate of Jody Parr. In effect, the appellant Parr is seeking appellate review of this action by the probate court without making any attempt to perfect said review. In Cluck v. Hester, 521 S.W.2d 845 (Tex.Sup.1975), the Supreme Court reiterated that the 1973 Amendments to the Constitution and the Family Code did not abolish appeals to district courts from probate courts under appropriate circumstances by writ of certiora-ri. This question of appellate review in district court could only have been reviewed in the district court by a properly filed writ of certiorari. The record does not show that appellant Archer Parr appealed by filing a writ of certiorari. The trial court was correct in dismissing this particular action for lack of jurisdiction. We might add that appellant Parr was not harmed by the action of the probate court. Regardless of whether or not he was appointed community administrator under § 161 of the Probate Code, he is still entitled under § 177(b) of the Probate Code to retain possession and control over his special community property as the surviving spouse of the marital partnership.

Appellant J & J Operating Company brings the same general point of error as appellant Parr concerning the dismissal of its cause of action for lack of jurisdiction. J & J Operating Company was originally a defendant in the trial court. It filed a cross-action for interpleader and for declaratory judgment against appellant and ap-pellee. J & J sought to interplead into the registry of the court certain monies it held which were claimed by appellant Parr, ap-pellee White, as Administratrix of the Estate of Jody Parr, and Emilio Davila in his capacity as Receiver in Cause No. 8716 in the 229th District Court styled First State Bank of San Diego et a1. v. Archer Parr et a1. J & J also brought a cross-action for declaratory judgment against appellant Archer Parr and appellee for a determination of who had the right of control, transfer and to vote the stock of Jody Parr (deceased) now in their possession. J & J brought another cross-action against this appellee and attorney William Bonilla. This action was for indemnification for any wrongful payments made to Jody Parr pursuant to an agreement between J & J and appellee and William Bonilla wherein appel-lee and William Bonilla agreed to hold J & J harmless and to indemnify J & J for any loss, damage or expense incurred in defending such claims.

Some, but not all of the cross-actions brought by the appellants are clearly incident to the ultimate settlement, partition and distribution of the Estate of Jody Parr. J & J’s interpleader action is incident to the settlement or partition of the estate. The question of who is entitled to these funds must be determined by the probate court because said funds must either constitute part of the community assets of the estate or a claim against the estate. J & J’s cause of action for declaratory judgment as to who is entitled to control, transfer and vote the stock of Jody Parr is also incident to the Estate of Jody Parr. The declaratory judgment that J & J is seeking is in reality a determination of who owns this stock. The question of ownership will determine whether the property is the separate or community property of Archer or Jody Parr. This question is incident to the ultimate partition of the Estate of Jody Parr.

On the other hand, the action brought by appellant J & J for indemnity against appellee White and William Bonilla was not incident to the Estate of Jody Parr. This question does not affect Jody Parr’s Estate. In this particular action, the appellant was seeking a judgment against appel-lee White and William Bonilla indemnifying J & J for any wrongful payments made to the Decedent while she was still alive. The determination of the validity of the indemnity agreement and J & J’s right to said indemnity is simply not a proper matter to be considered by the probate court. It was and is properly brought in the district court.

Our next question is whether this particular action can be severed from the remainder of the cross-actions and decided separately by the trial court. Rule 41, T.R. C.P., says, in part, that “ . . . [a]ny claim against a party may be severed and proceeded with separately.” In Kansas University Endowment Assoc. v. King, 162 Tex. 599, 350 S.W.2d 11 (1961), it was held that severance is proper where the suit involves two or more separate and distinct causes of action, each of which may be tried as a separate claim in controversy. See Angerstein v. Angerstein, 389 S.W.2d 519 (Tex.Civ.App.-Corpus Christi 1965, no writ); Hayes v. Norman, 383 S.W.2d 477 (Tex.Civ.App.-Corpus Christi 1964, writ ref’d n. r. e.). The appellants’ cause of action for indemnity was clearly severable.

As in Cause Number 1072, J. Craig Cowgill, Receiver, Alamo Lumber Company, Archer Parr v. Bonnie M. White, Individually and as Administratrix of the Estate of Jody Martin Parr, Deceased, supra, the appellants also claim as error the action of the trial court in dismissing the case with prejudice. For the same reasons cited in that opinion, the action of the trial court was correct. However, since the trial court was incorrect in dismissing J & J’s indemnity action, it was also incorrect in dismissing such cause with prejudice.

In addition to the case on its merits, this Court is also carrying with the case a motion to dismiss appellant Archer Parr’s appeal. The basis for this motion is the fact that appellant Parr brought this appeal only in his capacity as community administrator or. surviving spouse. The appellee contends that since the probate court vacated its order appointing Archer Parr as community administrator, he could not present himself to this Court and prosecute his appeal in this capacity. The fallacy of this argument is that under § 177(b) of the Probate Code, regardless of whether or not a community administrator has qualified, the surviving spouse is entitled to possession and control of his or her special community property and obviously has the right to prosecute an appeal in this capacity. Ap-pellee’s motion to dismiss is overruled.

That portion of the judgment of the trial court which dismissed appellant J & J Operating Company’s action against Bonnie M. White, Individually and as Administratrix of the Estate of Jody Parr and William Bonilla for indemnity for any funds wrongfully paid to Jody Parr, Deceased, is severed and is here REVERSED and that cause of action alone is REMANDED to the trial court. That portion of the judgment which dismissed all of the other causes of action of Archer Parr and the remainder of the causes of action of J & J Operating Company is AFFIRMED.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.