author: NYE, Chief Justice.

text:
    W. T. GILLUM, Appellant, v. John S. TEMPLE et ux., Appellees.
    No. 1143.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 30, 1976.
    Rehearing Denied Jan. 20, 1977.

      Jerry L. Bryan, Houston, for appellant.
    Jerry C. Adam, Adam, Adam & Anderson, Houston, for appellees.
   OPINION

NYE, Chief Justice.

This is a trespass to try title suit filed by W. T. Gillum against John S. Temple and wife for title and possession of a lot of land located along a new channel of the Colorado River in Matagorda County. Gillum relied upon record title. The Temples’ claim is based upon the ten year statute of limitations. At the close of the jury trial, judgment was rendered that Gillum take nothing and that the Temples be awarded title to the land by virtue of the ten year statute of limitations. From this judgment Gillum has perfected his appeal to this Court.

Gillum brought this suit against the Temples in trespass to try title and alleged that he was the fee simple owner of certain property in Matagorda County. Gillum alleged that he was entitled to possession of said property and that the Temples were in unlawful possession of said property. The Temples amended their original answer and pled “not guilty” to Gillum’s claims and by a cross-action and in the alternative claimed superior title under the ten year limitations statute. (Art. 5510).

The case was submitted to the jury on seven special issues. It should be noted at the outset that no special issues on the Gillum’s trespass to try title action were submitted to the jury as none were requested by him. All the special issues concerned the Temples’ cross-action claiming superior title by adverse possession. The jury found that: 1) the Temples and their predecessors in possession had held peaceable adverse possession for ten years; 2) the Temples’ predecessors in possession claimed ownership in the property; 3) the land sued for by Gillum was the same land claimed by the Temples; 4) the Temples themselves had good faith adverse possession of the land for one year prior to institution of the suit; 5) the Temples or their predecessors in possession made permanent and valuable improvements to the land while they were in possession; 6) the value of the improvements to the land was $2,850.00; 7) the value of the use and occupation of the land while the Temples were in possession to be $16,800.00. Based on these findings, the trial court entered judgment that Gillum’s trespass to try title action be denied and that the Temples be awarded title and possession of the land under their cross-action.

The land involved in this litigation is described as follows:

Surface only of Lot 7, Section 2, Colorada River Estates, Stephen F. Austin Survey, Abstract No. 2, Matagorda County, Texas, a subdivision of which said Section 2 is unrecorded in the Plat Records of Mata-gorda County, Texas, said Section 2 being described by a plat thereof recorded in Vol. 470, Pages 840-849 of the Deed Records of Matagorda County, Texas.

This land is a portion of the land which was claimed by the State of Texas in the case of State v. Baxter, 430 S.W.2d 547 (Tex.Civ.App. — Waco 1968, writ ref’d n.r.e.). In the Baxter case, it was held that the land in question was accreted to the lands of one H. P. Baxter and as such belonged to the Baxters and not the State of Texas.

A plaintiff in a trespass to try title suit must recover on the strength of his own title and not on the weakness of the defendant’s title. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950); State v. Noser, 422 S.W.2d 594 (Tex.Civ.App. — Corpus Christi 1967, writ ref’d n.r.e.); Weatherred v. Kiker, 357 S.W.2d 182 (Tex.Civ.App. — Amarillo 1962, writ ref’d n.r.e.); Niendorff v. Wood, 149 S.W.2d 161 (Tex.Civ.App. — Amarillo 1941, writ ref’d). When the title is controverted, as it is when the defenndant pleads “not guilty”, the defendant admits possession of the subject property and claims a better title. The burden of proof is then on the plaintiff to establish a superior title in himself by an affirmative showing. The grounds for such affirmative showing are proof of: 1) title emanating from the sovereignty of the soil to the plaintiff; 2) a superior title in himself emanating from a common source to which the defendant claims; 3) adverse possession; or 4) prior possession at a time which antedates defendant’s possession of the land. Land v. Turner, 377 S.W.2d 181 (Tex.Sup.1964); State v. Noser, supra. Until the plaintiff presents such prima facie proof of title, the defendant is not required to offer evidence of title and the plaintiff may not rely on his failure to do so. Accordingly, defendant’s possession entitles him to judgment against the plaintiff unless plaintiff shows a prima facie title. 56 Tex.Jur.2d, Trespass to try title, § 117 and cases cited therein. Under such circumstances, there is no necessity of determining the question of whether or not the defendant has title to the property. Routte v. Guarino, 216 S.W.2d 607 (Tex.Civ.App.— Galveston 1948, writ ref’d n.r.e.); White v. Jones, 158 S.W.2d 842 (Tex.Civ.App. — Texarkana 1942, no writ).

In Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961), our Supreme Court stated: “It has long been the rule in this State that in a trespass to try title suit, the plaintiff must recover upon the strength of his own title, (citations omitted) If the plaintiff under the circumstances fails to establish his title, the effect of a judgment of take nothing against him is to vest title in the defendant. The rule is a harsh one, but it also has been established as a rule of land law in this State.”

A review of the record before us indicates that Gillum was attempting to prove superior title by record title. Gillum relied on a special warranty deed from Robert L. Moody, Trustee, to W. T. Gillum conveying to Gillum seven lots in the previously described Section 2 of the Colorado River Estates. Since Gillum was relying on record title, he had the burden of proving superior title from the sovereign or from a common source with the defendants, Mr. and Mrs. John S. Temple. First, Gillum attemped to prove title from the sovereign, but rather quickly abandoned this attempt and did not later pursue it. A common source may be established by pleadings, by agreement between the parties, or by proof at the trial. Since a common source was not established by either the pleadings or by agreement, we look for the proof of a common source.

Gillum’s proof of common source in addition to the special warranty deed from Robert L. Moody, Trustee to W. T. Gillum, dated March 10, 1969, was a quit claim deed from H. P. Baxter, Jr., Bessie Mae Baxter Owens, Don Owens, W. L. Baxter, Thelma Nini, W. S. Baxter, Addie Lee Steubing, Robert W. Steubing and Wallace Nini to Robert L. Moody, dated April 14, 1969. The record does not show any documentary evidence of the record title holder to Lot 7, Section 2 of the Colorado River Estates in 1959 when the claimed adverse possession of the Temples’ predecessor in title began to run on this property. The record does show that the Temples’ limitations title began to run in 1959. The Temples established this date by tracking their title back through two prior possessors, a Mrs. Doughety and a Mr. and Mrs. Logan. Therefore, it was incumbent upon Gillum to prove superior title to the land from the individual or individuals against whom the Logans were holding adverse title in 1959 through the date he filed his trespass to try title action, i.e., April 21, 1971. This was the only avenue of common source proof of title remaining to the appellant Gillum.

The only possible evidence which might indicate who was the record title owner to the property in question at the time that the limitations title began to run against the property was the oral testimony of Mr. Don Owens that his wife acquired title to the land in 1949. In an action where the title to property is directly in issue, proof of record title must be shown by instruments in writing. The instruments relied on as affecting the course of the title must be made by the production of the instruments themselves. (There are several exceptions not applicable here.) See C. McCormick & R. Ray, Texas Evidence, § 1568, pages 417-18, the Best Evidence Rule. Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712 (1956); Texas Creosoting Co. v. Hartburg Lumber Co., 16 S.W.2d 255 (Tex.Comm’n App.1929). The best evidence rule requires the written instrument. It is the best evidence of its contents. The evidence of the contents of a document must be proved by the document itself unless it is shown that the document is unavailable without the fault of the party offering and relying on such evidence.

The evidence submitted by plaintiff Billum was not competent legal evidence. It was not sufficient to establish a common source as a matter of law. No fact issues were submitted to the jury to establish such fact as part of his case in any event. Since it was incumbent upon the plaintiff to establish a common source, his suit for trespass to try title fails when his proof fails. See Land v. Turner, 377 S.W.2d 181 (Tex.Sup.1964); Best Investment Company v. Hernandez, 479 S.W.2d 759 (Tex.Civ.App. — Dallas 1972, writ ref’d n.r.e.); Patterson v. Metzing, 424 S.W.2d 255 (Tex.Civ.App. — Corpus Christi 1967, no writ). The trial court’s entry of a take nothing judgment in a trespass to try title has the effect of adjudicating the land to the defendant. Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564 (1937); Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961); Latham v. Dement, 409 S.W.2d 429 (Tex.Civ.App. — Dallas 1966, writ ref’d n.r.e.); State v. Sunray DX Oil Company, 503 S.W.2d 822 (Tex.Civ.App. — Corpus Christi 1973, writ ref’d n.r.e.). Since the common source of title between Gillum and the Temples has not been shown, and the effect of a take nothing judgment is to vest title in the defendant, it is unnecessary for us to rule specifically on each of Gillum’s first four points of error.

The appellant Gillum in his points of error 5 and 6 complaints of the action of the trial court in allegedly making derogatory comments regarding Gillum’s attempt to prove a claim of title from the sovereign which Gillum claims indirectly forced him to give up a valid position he intended to maintain and prove to the jury. Gillum attempted to prove this alleged misconduct of the judge through a by-standers bill of exceptions under Rule 372(j), T.R. C.P. We cannot consider this bill of exceptions for two reasons. First, Rule 372(j), T.R.C.P. requires that a by-standers bill of exceptions be accompanied by affidavits from three witnesses attesting to the correctness of the bill. The record reflects that on July 27, 1976, three months after the judgment in this case had been signed and rendered, the appellant Gillum filed his bill of exceptions accompanied by the affidavits of only two witnesses. A Court of Civil Appeals is precluded from considering a by-standers bill of exceptions which is attested by only two persons. Bowman v. Bridges, 220 S.W.2d 512 (Tex.Civ.App.— Texarkana 1944, no writ). See also- Newhouse v. State, 420 S.W.2d 729 (Tex.Cr.App.1967). The second reason is that the record does not reflect any objection to the alleged action by the trial judge until after the judgment was entered. Generally a party or his attorney must promptly object to any impropriety he observes or learns during the trial or the matter is waived. 3 R. McDonald, Texas Civil Practice 11.21.4 (1970). Assignments of error complaining of misconduct of the trial judge will not be considered on appeal, absent a proper objection at the time the acts occurred, unless it can be shown that the injurious effects of the remarks could not have been removed by withdrawal or instruction. State v. Wilemon, 393 S.W.2d 816 (Tex.Sup.1965); City of Austin v. Cook, 343 S.W.2d 545 (Tex.Civ.App. — Austin 1961, writ ref’d n.r.e.); Loumparoff v. Housing Authority of City of Dallas, 261 S.W.2d 224 (Tex.Civ.App.— Dallas 1953, no writ); Holden v. Gibbons, 101 S.W.2d 837 (Tex.Civ.App. — Austin 1937, writ dism’d); Southland Greyhound Lines, Inc. v. Matthews, 74 S.W.2d 713 (Tex.Civ.App. — Beaumont 1934, writ dism’d). Appellant Gillum’s points of error 5 and 6 are overruled.

In point of error 7, Gillum complains of the action of the trial court in refusing to allow the court appointed surveyor to testify and present his finding to the jury. Under Rule 796, T.R.C.P., the trial judge, either on his own motion or on motion of either of the parties may appoint a surveyor to survey the property in question and report his findings to the court. The appellant Gillum in his motion alleged that the Temples might make allegations which would distort the issue of title and that it would be in the best interest of all the parties to have a surveyor locate the boundary lines of the property. The record does not reflect that any such controversy arose during the trial. After both sides had rested their case in chief, and while Gillum was presenting his rebuttal evidence, the report and testimony of the surveyor were tendered to the court by Gillum. The Temples objected to this evidence on the grounds that it was not rebuttal testimony. The trial court sustained the objection. Again, Gillum failed to properly object to this action by the trial court and did not make a proper bill of exceptions which would allow us to review the evidence to determine the correctness of the trial court’s ruling on its admission. Rule 372, T.R.C.P. Therefore, the error, if any, was waived. Rule 434, T.R.C.P. Appellant Gil-lum’s point of error 7 is overruled. The judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Benjamin Frederick BURKS et al., Appellants, v. Dr. D. W. MEREDITH, Appellee.
    No. 5669.
    Court of Civil Appeals of Texas, Waco.
    Dec. 30, 1976.
    As Modified on Denial of Rehearing Feb. 3, 1977.

      Hurley & Sowder, Lubbock, Kolander & Templeton, Amarillo, for appellants.
    Stokes, Carnahan & Fields, Richard E. Stokes Jr., Amarillo, Bill Sheehan, Sheehan & Dubuque, Dumas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellants (parents, widow, and son of Gary Burks), from take nothing judgment rendered against them on a jury verdict, in a medical malpractice suit against appellee Dr. Meredith.

Appellants filed malpractice suit against appellee Dr. Meredith alleging Gary Burks entered Dumas Hospital on November 30, 1974 after having been shot thru the abdomen; that Dr. Meredith (a general practitioner who performs surgery) was retained to treat Gary; that on December 1, 1974, Dr. Meredith performed surgery on Gary, discovered perforation of the colon, sutured the hole, put the patient on nasogastric suction, fluids and antibiotics; that subsequently Gary developed complications including adhesions, and a second surgery was performed during which Dr. Meredith punctured the colon; that Dr. Meredith then called Dr. Raul Puelma (a Board Surgical Specialist) to take over the case; that Gary gradually worsened until he died in Galveston John Sealy Hospital of peritonitis.

Appellants alleged Dr. Meredith negligent in a number of particulars, proximately causing the death of Gary Burks, to appellants’ damage.

Trial was to a jury which found for Dr. Meredith on all issues submitted summarized as follows:

1)Dr. Meredith was not riegligent in failing to consult with a specialist in surgery concerning Gary Burks on December 1, 1974.
2) Dr. Meredith was not negligent in failing to refer Gary Burks to a specialist in surgery on December 1, 1974.
3) Dr. Meredith was not negligent in failing to consult with a specialist concerning Gary Burks between December 1, and December 9, 1974.
4) Dr. Meredith was not negligent in failing to refer Gary Burks to a specialist between December 1 and December 9, 1974.
5) Dr. Meredith was not negligent in failing to consult with a specialist in surgery concerning Gary Burks on December 10, 1974, prior to the time he did so.
6) Dr. Meredith was not negligent in failing to refer Gary Burks to a specialist in surgery on December 10, 1974, prior to the time he did so.
7) Dr. Meredith was not negligent in failing to perform exteriorization, decompression or colostomy on Gary Burks on December 1, 1974.
8) Dr. Meredith was not negligent in the manner he performed surgery on Gary Burks on December 1, 1974.
9) Dr. Meredith was not negligent in failing to lavage or irrigate Gary Burks’ wound or surrounding tissue with saline solution or antibiotics on December 1, 1974.
10) Dr. Meredith was not negligent in permitting Gary Burks nourishment by mouth prior to the second surgery.
11) Dr. Meredith did not fail to adequately inform Gary Burks of the risks involved in the surgery of December 10, 1974.

The trial court rendered take nothing judgment on the verdict.

Appellants appeal on 7 points contending the trial court committed reversible error:

1) In excluding testimony by a Dumas surgeon as to the standard of care of general practitioners in Dumas.
2) In excluding testimony of a treating Dumas surgeon as to the standards of care for surgeons in Dumas at the time defendant general practitioner (who had ceased colon surgeries 10 years previous) chose to perform 2 colon surgeries in a 10 day period upon deceased without any consultation with any surgeon or referral to a surgeon when there was evidence the failure to consult or refer to a surgeon was negligence under Dumas standards.
3) In refusing new trial because the jury’s answers to Issues 1 and 2 (defendant’s failure to consult with, or refer to, a surgeon on December 1, 1974) are against the great weight and preponderance of the evidence.
4) In refusing new trial because of jury misconduct.
5) In refusing to allow plaintiffs’ exhibits 1 and 2 into the jury room, upon request of counsel.
6) In refusing new trial because the jury’s answer to Issue 11 (Informed consent) is against the great weight and preponderance of the evidence.
7) In refusing new trial because the jury’s answer to Issue 6 (whether defendant was negligent in failing to refer patient to a specialist in surgery before he did on December 10, 1974), is against the great weight and preponderance of the evidence.

On December 1, 1974, Gary Burks was shot in the lower abdomen. He was taken to Dumas Hospital, and his family physician Dr. Meredith was called. Dr. Meredith examined him, found two wounds, and his best medical judgment was that something had to be done to save the boy’s life. The only way Dr. Meredith could determine the damage was to open the abdomen and examine it. Dr. Meredith is a general practitioner who also performs surgery, and has performed some 1000 abdomen operations and assisted in another 1000. The situation was an emergency. Upon surgery Dr. Meredith found the bullet had penetrated the boy’s colon releasing a small amount of feces. Dr. Meredith considered primary closure of the wound, colostomy, or an exter-iorization of the wound, but felt primary closure would be best procedure. After performing a primary closure he used sponges with saline solution to clean the area. He felt that irrigation or use of neomycin presented problems. He put Gary on 2 antibiotics and nasal suction. During the first 4 days Gary took nothing by mouth. On the fifth day he began to walk, had a bowel movement and began to take liquids. On the tenth day, December 10, Gary started projectile vomiting, which was an indication of a total obstruction. Dr. Meredith consulted with Dr. Wright and concluded the obstruction was caused by an adhesion and that surgery was necessary to relieve the obstruction. Dr. Meredith told Gary he had a bowel obstruction and that they were going to have to open his abdomen to relieve the obstruction. After opening the boy’s abdomen no pus was found which is an indication there was no infection. Dr. Meredith then began to loosen the adhesion. One adhesion was on the old wound site, and when Dr. Meredith attempted to free it, he opened the old suture line on the colon about the size of the tip of his finger. Dr. Meredith felt that complicated surgery was going to be required. He called Dr. Puelma a Board Surgeon and surgery specialist who came in about 20 or 30 minutes. Dr. Puelma in freeing the adhesion and attempting to' bring the colon out by exteriorization tore the colon all the way across, causing the entire fecal contents to empty into the boy’s abdomen area. The boy was taken to John Sealy Hospital in Galveston where he later died of infection of the abdominal cavity.

On the trial appellants’ witness Dr. Lacy, a general practitioner familiar with the standards of care for general practitioners in Dumas raised several issues as to negligence on the part of Dr. Meredith, including the failure to consult with or refer to a specialist in surgery before he did.

The trial court excluded portions of the deposition of Dr. Puelma, the surgery specialist called into the case on December 10th.

Under points 1 and 2 appellants complain of the exclusion from the jury of certain deposition testimony of Dr. Puelma.

A specialist is generally expected to possess a higher degree of skill and learning than a general practitioner. The general practitioner is not required to consult with a specialist, on every conceivable complication that may arise in his practice. If he exercises the care and skill of other physicians similarly situated, he is not responsible for an error of judgment even though a specialist would not have made the same mistake. But there is a duty to seek consultations with, or refer the patient to a specialist when he knows, or in the exercise of reasonable care should know, that the services of a specialist are indicated. Here, as in other cases of alleged medical malpractice, the defendant is to be judged on the standards and practice of his profession. If there is expert testimony fairly supporting the conclusion that a reasonably careful and prudent general practitioner would have sought consultation under the same or similar circumstances, the trier of fact is entitled to find the defendant was negligent in failing to do so. King v. Flamm, Tex.S.Ct., 442 S.W.2d 679.

But what constitutes negligence or malpractice is a mixed question of law and fact that can only be determined by the trier of fact on the basis of the evidence admitted and instructions given by the court. A medical expert is not competent to express an opinion thereon. The question of what a reasonable and prudent doctor would have done under the same or similar circumstances, must also be determined by the trier of fact after being advised concerning the medical standards of practice and treatment in the particular case. An expert witness can and should give information about these standards without summarizing, qualifying or embellishing his evidence with expressions of opinion as to the conduct that might be expected of a hypothetical doctor similarly situated. The latter is not an appropriate subject for expert testimony. Snow v. Bond, Tex.S.Ct., 438 S.W.2d 549.

Thus, a doctor cannot testify that a certain procedure is malpractice or negligence. The doctor should state the standard of care in a given locality, and other evidence show what the defendant actually did. The jury then determines whether the defendant met the standard of care.

We will examine the excluded testimony of Dr. Puelma.

The first appears at page 406 of the statement of facts.

“Q. Okay. Now doctor, if a general practitioner in Dumas attempted to perform a repair of a perforation wound to an unprepared colon in November of 1974, would he be conforming to those fundamental minimum standards in Dumas, Texas, and I might say as practiced by a majority of general practitioners in Dumas?”
The second appears on page 410:
“Q. Now, I want you to answer me whether or not the decision on this day by Dr. Meredith to tackle that surgery was the correct decision or an incorrect decision based upon the minimum standards for a general practitioner in Dumas, and I’m talking about Doctor, by minimum I don’t mean below medical reasonable care”.
The next appears on page 412:
“Q. I’ll rephrase the question and say if a general practitioner attempts to perform an exploratory laparotomy and closure or repair of a perforation wound of an unprepared colon, by what standards would you judge his actions, by the standards of a surgeon or by the standards of a general practitioner?
A. Obviously, whenever there is a surgical problem, I judge it as a surgeon”.
Another appears on page 416:
“Q. Had you an opportunity to observe Dr. Meredith’s work in Dumas during the years 1967 through 1974?
A. Yes.
Q. Is he a competent surgeon to do this type of surgery, and I’m talking about a repair of a perforating wound to an unprepared colon?
A. Well.
Q. Now I want to know, first off, can you answer that question ‘yes’ or ‘no’?
A. Your question is a little bit complex, because you ask me whether I’ve seen Dr. Meredith perform standard operations that all the general practitioners do, and he does them excellently, real good, the usual hysterectomies and gall bladders and appendectomies and hernias, things like that. As far as his manual ability in handling tissues, I think he is excellent. He knows how to handle tissues, * * * The man has good hands and works good, but that is not enough, what makes a surgeon.
Q. What else does?
A. Judgment, experience, general surgical principles, knowledge of them, knowledge of physiology, knowledge of pathology, knowledge of possible complications to anticipate. So I think his technical ability to handle the tissues is no objection, he is excellent. But, Dr. Meredith doesn’t have the broad surgical mind to be able to make judgments and to be able to make decisions about complicated surgical problems.”

The foregoing objected to portions of Dr. Puelma’s deposition inquires of the witness as to the ultimate question which is prohibited by the Snow case, supra. While Dr. Puelma’s answers have not all been recited, many are unresponsive to the question asked, or based on the standard of a Board certified surgeon.

The trial court did not err in excluding the deposition testimony.

Point 3 asserts the jury’s answers to Issues 1 and 2 are against the great weight and preponderance of the evidence, and point 7 asserts the jury’s answer to Issue 6 against the great weight and preponderance of the evidence. As noted, Issues 1 and 2 found Dr. Meredith was not negligent in failing to consult or refer Gary Burks to a specialist in surgery on December 1, 1974. And Issue 6 found Dr. Meredith not negligent in failing to refer to a specialist before December 10.

There is evidence Dr. Meredith was a surgeon but not a specialist. He had performed bowel surgery and had treated gunshot wounds. He had performed or assisted in some 2000 abdomen operations. The case was an emergency. There is medical evidence that it was not necessary for a general practitioner who performs surgery to call in a specialist in a case of this type. The second surgery was necessary to relieve an obstruction caused by adhesions. There is evidence Dr. Meredith had freed abdominal surgery adhesions many times. Dr. Cranfill testified that a general practitioner surgeon in Dumas could have handled the situation. From the record as a whole findings 1, 2 and 6 are not against the great weight and preponderance of the evidence. In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660.

Point 4 asserts a reversal is required on account of jury misconduct. Appellant asserts the juror Mrs. Morse made statements in the jury room that she had nurses training, that adhesions occur frequently and that people die from complications all the time. Mrs. Morse denied having made such statements except for the fact she had nurses training; and two other witnesses testified the only thing they heard Mrs. Morse say was that she had had nurses training.

The trial court overruled motion for new trial thus presumably finding all facts in support of its judgment, and that no misconduct occurred. Brawley v. Bowen, Tex.S.Ct., 387 S.W.2d 383.

Point 5 asserts the trial court erred in refusing plaintiff’s exhibits 1 and 2 to be taken into the jury room upon request of counsel. These exhibits were the hospital records from the Dumas and Galveston hospitals. No member of the jury asked to see the exhibits, and one juror testified the jury had the exhibits well in mind.

The trial court’s action if error was harmless. Rule 434 TRCP.

Point 6 asserts the jury’s answer to Issue 11 is against the great weight and preponderance of the evidence. Issue 11 found that Dr. Meredith did not fail to adequately inform Gary Burks of the risks involved in the surgery of December 10, 1974.

The evidence is that Dr. Meredith told Gary Burks before the second surgery that there was an obstruction in his abdomen and that it would have to be relieved by a surgical operation, and Gary signed a consent for the operation. Under the record there is no doubt but that the surgery was necessary and that Gary understood that. Under the record as a whole such finding is not against the great weight and preponderance of the evidence. In re Kings Estate, supra.

All appellants’ points are overruled.

AFFIRMED.


author: HALL, Justice.

text:
    In re S_R_L_, Appellant.
    No. 5643.
    Court of Civil Appeals of Texas, Waco.
    Dec. 30, 1976.
    Frank Steelman, Bryan, for appellant.
    W. T. McDonald, Jr., and J. Bradley Smith, Bryan, for appellee.
   HALL, Justice.

The appellant is now sixteen years of age. On August 15, 1975, he was placed on juvenile probation for the commission of the offense of burglary. One of the conditions of probation was that he “commit no offense against the laws of Texas.” In April, 1976, the State filed a petition to revoke the probation on the ground that appellant had committed the offense of theft from a coin-operated machine on February 25, 1976. After a hearing, the court revoked the probation and committed appellant to the custody of the Texas Youth Council. He appeals. We affirm.

After the coin-operated machine was entered, appellant was taken into custody by a detective and carried to the police station. Appellant’s father met the detective and appellant at the station when they arrived there. The detective told the father of the charge against appellant. He also told the father that he would take appellant home when he was “through with him.” Thereafter, after being duly warned, appellant signed a statement confessing the commission of the offense. The confession was admitted into evidence on the revocation hearing over appellant’s objection.

V.T.C.A., Family Code, § 52.02, provides in part as follows: “(b) A person taking a child into custody shall promptly give notice of his action and a statement of the reason for taking the child into custody, to: (1) the child’s parent”. Appellant contends this statute was violated because the detective failed to tell the father that his reason for taking appellant into custody was to take a confession, and that the confession was therefore inadmissible. We disagree. The evidence shows that the reason appellant was taken into custody was the criminal offense involving the coin-operated machine. The statute was satisfied when the detective told the father about this charge against appellant.

Appellant asserts there is no evidence the probation order was ever exhibited to him or explained to him, and that for these reasons his objection to the State’s tender of the order into evidence at the revocation proceeding should have been sustained, and his subsequent motion to dismiss the proceeding should have been granted. We overrule these contentions. The evidence shows that appellant was placed on juvenile probation on August 15, 1975; that he and his father signed the order of probation; that his probation officer read the order to him and discussed the conditions of probation with him “again” in October, 1975.

The judgment is affirmed.


author: ELLIS, Chief Justice.

text:
    L. H. LACY COMPANY, Appellant, v. The CITY OF LUBBOCK, Texas, Appellee.
    No. 8684.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 31, 1976.
    Rehearing Denied Jan. 24, 1977.

      Bailey, Williams, Westfall, Lee & Fowler, James A. Williams, Dallas, for appellant.
    Fred O. Senter, Jr., City Atty., James P. Brewster, Lubbock, for appellee.
   ELLIS, Chief Justice.

L. H. Lacy Company instituted suit against the City of Lubbock, Texas to enforce an award made by a panel of arbiters. The award was favorable to the plaintiff, hereinafter designated as “Lacy,” and the judgment of the trial court affirmed such award except as to certain limited interest awards in favor of Lacy which were eliminated. Each of the respective parties, the City of Lubbock, hereinafter designated as “the City” and Lacy has perfected an appeal from that portion of the trial court’s judgment which was adverse to it. The appellate decision is grounded upon our determination that the arbitration award, which, for the most part, was the basis of the judgment, is invalid because it cannot be sustained either as an effective statutory or common law arbitration award. Reversed and rendered.

The trial court found that the parties executed a contract wherein Lacy agreed to construct certain runway and taxiway improvements for the Lubbock Regional Airport. The written agreement contained the following arbitration clause:

GC-54 ARBITRATION
All questions of dispute under this Agreement shall be submitted to arbitration at the request of either party to the dispute. The parties may agree upon one arbiter, otherwise, there shall be three, one named in writing by each party, and the third chosen by the two arbiters so selected; or if the arbiters fail to select a third within ten (10) days, he shall be chosen by a District Judge serving the County in which the major portion of the project is located, unless otherwise specified. Should the party demanding arbitration fail to name an arbiter within ten (10) days of the demand, his right to arbitrate shall lapse, and the decision of the Engineer shall be final and binding on him. Should the other party fail to choose an arbiter within ten (10) days, the Engineer shall appoint such arbiter. Should either party refuse or neglect to supply the arbiters with any papers or information demanded in writing, the arbiters are empowered by both parties to take ex parte proceedings.
The arbiters shall act with promptness. The decision of any two shall be binding on both parties to the contract, unless either or both parties shall appeal within ten (10) days from the date of the award by the arbiters, and it is hereby agreed that each party shall have the right of appeal and all proceedings shall be according to and governed by arbitration statutes of Texas. The decision of the arbiters upon any question submitted to arbitration under this contract shall be a condition precedent to any right of legal action. The decision of the arbiter or arbiters may be filed in court to carry it into effect.
The arbiters, if they deem the case demands it, are authorized to award the party whose contention is sustained, such sums as they deem proper for the time, expense and trouble incident to the Appeal, and if the Appeal was taken without reasonable cause, they may award damages for any delay occasioned thereby. The arbiters shall fix their own compensation, unless otherwise provided by agreement, and shall assess the cost and charges of the arbitration upon either or both parties. The award of the arbiters must be made in writing, and shall not be open to objection on account of the form of proceedings or award.

While the runway and taxiway improvements were being constructed disputes arose between Lacy and the City. Lacy completed the project, and, on July 16,1974, demanded arbitration pursuant to the above quoted clause GC-54. The City responded with a letter indicating that it did not consider the disputes to be arbitrable. Nevertheless, three arbiters were chosen and a hearing was conducted in accordance with clause GC-54. Both parties submitted position papers to the arbiters. In its position paper, the City detailed its reasons why “arbitration [was] not applicable in this matter” and contended that the arbiters had no jurisdiction over the dispute. At the hearing and in papers later submitted to the arbiters, the City renewed its “pleas to the jurisdiction,” and conditioned its participation in the proceeding upon this plea. Although the arbiters overruled the City’s contentions, the award recited that the City’s participation in the proceedings was “subject to” the jurisdictional pleas and exceptions reserved by the City. The arbiters determined that they had jurisdiction and made an award favorable to Lacy; the City declined to honor it and this suit was filed. The cause was tried to the court without a jury upon extensive written stipulations. Although the City never abandoned its jurisdictional claims, the trial court found that “[a]ll parties consented to arbitration of disputes in this cause in accordance with the provisions of the contract and specifications between them.” Enforcement of the award was ordered with the exception of the trial court’s elimination of a portion of the interest awarded to Lacy. A basic contention urged by the City from the time of Lacy’s first demand for arbitration, throughout all of the proceedings and continuing through its appellate brief is that the arbiters never acquired jurisdiction to decide the dispute or make an award.

In seven points of error the City has asserted: that the arbitration clause was unenforceable under the Texas General Arbitration Act (1966) and the proceedings had do not qualify as a valid common law arbitration; that even if the arbitration agreement were valid, there was a lack of compliance with the requirements of the contract as to the approval and signature of the attorneys for the parties and that the required claims, demands and notices prerequisite to invoking authority for arbitration were not given; that the partial interest on claims was erroneously allowed under the award; that the court erred in holding that the City consented to or waived its objections and exceptions to the arbitration by its participation in the proceedings; and that the court erred in refusing certain findings of fact and conclusions of law requested by the City. Lacy’s appeal has asserted points of error relating to the trial court’s action in eliminating interest on certain claims allowed by the arbiters in the award.

Under Texas law there are two bases for valid arbitration proceedings. To encourage and facilitate arbitration, the legislature has enacted the Texas General Arbitration Act (1966). Tex.Rev.Civ.Stat. Ann. art. 224-238-6. Also, common law arbitration agreements are still available as a substitute for or an alternative to the agreements contemplated by the statutes. Carpenter v. North River Insurance Company, 436 S.W.2d 549 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ ref’d n. r. e.). If an arbitration agreement is valid under either the statute or the common law, the resulting award will be enforced. Forshey v. Railroad Company, 16 Tex. 516 (1856); Ferguson v. Ferguson, 93 S.W.2d 513 (Tex.Civ.App. — Eastland 1936, writ dism’d). If the arbitration agreement does not comply with either the statutory requirements or the common law requirements, the agreement is void. Scottish Union & Nat. Ins. Co. v. Clancy, 71 Tex. 5, 8 S.W. 630 (1888); Huntington Corp. v. Inwood Construction Co., 348 S.W.2d 442 (Tex.Civ.App. — Dallas 1961, writ ref’d n. r. e.). Accordingly, we must test the arbitration agreement in this case by both the requirements set forth in the Texas General Arbitration Act and the common law rules applicable to arbitration agreements.

Construction contracts are expressly excluded from the operation of the Texas General Arbitration Act. Tex.Rev.Civ.Stat. Ann. art. 224. It is undisputed and the court in effect found that this was a construction contract. Furthermore, the agreement was not signed by the parties’ attorneys as required under the Act. Tex. Rev.Civ.Stat.Ann. art. 224; Mamlin v. Susan Thomas, Incorporated, 490 S.W .2d 634 (Tex.Civ.App. — Dallas 1973, no writ). See also, Coulson, Texas Arbitration — Modern Machinery Standing Idle, 25 Sw.L.J. 290 (1971); Carrington, The 1965 General Arbitration Statute of Texas, 20 Sw.L.J. 21, 32-39 (1966). For these reasons, the Texas General Arbitration Act is inapplicable and the agreement to arbitrate under it is unenforceable in this case. We have also concluded that the above-quoted clause fails as a common law arbitration agreement.

Under Texas common law an agreement to arbitrate future disputes is against public policy in that it seeks to oust the courts of their jurisdiction and is therefore void and unenforceable. Scottish Union & Nat. Ins. Co., supra; Huntington Corp. v. Inwood Construction Co., supra. Because the contract containing the arbitration clause in question was executed prior to the time any dispute arose between the parties, the clause was not binding upon the City. Lacy has pointed to no specific time “after the dispute arose” at which the City of Lubbock consented to arbitrate. Lacy has argued, however, that the City implicitly ratified the arbitration agreement by participating in the arbitration proceedings. We do not agree.

Admittedly, the City participated in the arbitration proceedings; however, the City’s participation was predicated and conditional upon its timely objections to the jurisdiction of the arbiters and denial of the propriety of the arbitration proceedings. See Florida, Athletic Club v. Hope Lumber Co., 18 Tex.Civ.App. 161, 44 S.W. 10 (1898, no writ); Carpenter v. North River Insurance Company, supra. It is contended, however, that an agreement to arbitrate may be inferred from the parties’ conduct in proceeding with the arbitration.

The City, however, raised, renewed and insisted upon its “pleas to the jurisdiction” in the arbitration proceedings at every possible opportunity. The City of Lubbock’s jurisdictional pleas and exceptions were raised and preserved as early as its letter designating an arbiter. Also, these matters were raised in its summary of contentions constituting a part of the Stipulations. Upon the original convening of the arbitration hearing and prior to the submission of any evidence, the City again urged all its pleas. All of these jurisdictional pleas and exceptions were overruled and denied by the arbiters over the exception of the City before the parties proceeded to hearing as reflected in the award.

We find no procedure under decisional or statutory law applicable to a construction contract in Texas which requires a party to do more than raise and insist upon its objections at all reasonable opportunities to the arbitrability to the arbitrators (without any subsequent clear indication of willingness to forego judicial review), in order to preserve and prevent a forfeit of its right to judicial review of the jurisdictional question. See Annot. 33 A.L.R.3d 1251 (1970). We do not believe that participation in arbitration under the circumstances of this case can be equated with agreement after the dispute arose. It is our opinion that it has not been shown that, at any time after the disputes arose, the City consented or waived its rights to judicial review.

In support of its position Lacy relies heavily upon the holdings in the cases of Carpenter v. North River Insurance Company, supra, and Murray v. United States Fidelity and Guaranty Co., 460 S.W.2d 212 (Tex.Civ.App. — Dallas 1970, writ ref’d n. r. e.). Neither of those cases is controlling. Each of the cases involved an insurance policy provision for arbitration under certain circumstances which, like construction contracts, were not enforceable by virtue of the Texas General Arbitration Act. Basically, Carpenter and Murray turned on the question of whether under common law the insurance company had unequivocally revoked an agreement to arbitrate the dispute at a time prior to the award of the arbiters.

In the instant case, however, the question is whether the City, not being bound by the original agreement to arbitrate future disputes, ever agreed to arbitrate after the dispute arose. We hold, for the reasons heretofore given, that it did not. Thus, the arbiters’ award was void and not enforceable. Fortune v. Killebrew, 86 Tex. 172, 23 S.W. 976 (1893). This holding disposes of the trial court’s finding that the City “consented” to arbitrate the dispute.

Because the award of the arbiters is void, the judgment of the trial court for enforcement or in anywise based upon the award is held for naught, and the City’s contentions in support of its first point to the effect that no valid statutory or common law arbitration was effected are sustained. In view of this holding we do not specifically further discuss the City’s remaining points. Also, by reason of this holding that the award is void, Lacy’s points of error complaining of the trial court’s failure to enforce the entire award are overruled.

Accordingly, the judgment of the trial court is reversed and judgment rendered that the arbiters’ award be set aside and vacated without prejudice to Lacy’s rights to seek such other legal and equitable remedies with regard to its claims to which it may show itself entitled.

      . The attorney for the plaintiff did not sign the agreement, while the defense attorney signed as indicating approval as to form only.

      . Lacy admits as much by this statement in its brief: “The fact is what is before the Court here is a common law agreement to arbitrate disputes.”


author: PHILLIPS, Chief Justice.

text:
    Allen Ray WAGNER, Appellant, v. CITY OF SAN ANGELO et al., Appellees.
    No. 12507.
    Court of Civil Appeals of Texas, Austin.
    Jan. 12, 1977.
    Gerald R. Ratliff, Kever & Ratliff, San Angelo, for appellant.
    James E. Perry, City Atty., San Angelo, for appellees.
   PHILLIPS, Chief Justice.

Appellee, James R. McClellan, was elected Chief of Police of the City of San Angelo in the general municipal elections in 1974. Prior to the time of his election as chief, he had held the rank of captain in the San Angelo Police Department. He was subsequently defeated for re-election in the general municipal elections held on April 3, 1976, by appellee Wesley Smith. On April 13,1976, the City Commission of the City of San Angelo created a new position in the police department at the rank of captain. The vacancy was created at the request of Chief-elect Smith for the express purpose of reinstating McClellan to the force at the rank which he had held prior to the time he had become chief in 1974. On April 22, 1976, the Civil Service Commission for the City of San Angelo voted that McClellan be reinstated at the rank of captain effective May 11, 1976, the date on which he would leave office as chief.

Appellant, Allen Ray Wagner, ranked first on the current promotional eligibility list for the rank of captain in the San Angelo Police Department on both April 13, 1976, and April 22, 1976.

As a result of this action by the Civil Service Commission, appellant Wagner brought suit in the court below contesting the reinstatement. Appellant contended that any vacancy in the police department should be filled pursuant to Tex.Rev.Civ. Stat.Ann. art. 1269m, § 10 (1963) and Rule 12 of the Civil Service Commission Rules and Regulations for the City of San Angelo. The court granted a temporary restraining order whereby appellees, City of San Angelo, the Civil Service Commission, and Wesley Smith, were restrained from appointing or otherwise allowing appellee McClellan to assume the position of captain on the San Angelo Police Department.

Pursuant to trial, the court dissolved all temporary orders and appellee McClellan was ordered reinstated. We affirm this judgment.

Appellant maintains that the trial court erred in concluding that Tex.Rev.Civ.Stat. Ann. art. 1269m, § 15 (1963) guarantees to a popularly-elected chief of police, upon his defeat for re-election, the right to be reinstated in the police department at the rank which he held prior to his election as chief. The crux of appellant’s case is that since appellee McClellan had been elected chief and not appointed, he does not come under the provisions of the Act.

The trial court concluded that Article 1269m, § 15, and Rule 16, § 99, Civil Service Commission Rules and Regulations of the City of San Angelo, allow an elected police chief who has been defeated for re-election to return to the police department at the rank held prior to service as chief. The court found that any other holding would discourage members of the police department from seeking the office of chief and that the San Angelo Civil Service Commission had followed a practice of reinstating defeated chiefs of police.

In our judgment there is nothing in Article 1269m and particularly Section 15 thereof that would preclude McClellan’s reinstatement.

Although elected officers and appointed officers are referred to at several places in the Act, these adjectives are not used in such a sense as to make them mutually exclusive.

The pertinent portion of Section 15 is as follows:

“When the services of the Chief or head of the . . . Police Department are terminated as such and he is removed as such Department head, he shall be reinstated in the Department and placed in a position no lower than the rank he held at time of appointment . .”

As the word “appointment” is used in Section 15, reference is made to the manner of selection which would encompass election as well as appointment. As a matter of fact, the term “appointment” appears to be used in this section as a more comprehensive term, to convey the idea of a mode of constituting or designating the head of the department whether selected by appointment, election, or otherwise. In this respect see State v. Compson, 34 Or. 25, 54 P. 349 (1898). Any other interpretation would strain the construction of the Act, would be forced or unnecessarily technical, and, in our judgment, would subvert the legislative intent.

Furthermore, when an ambiguous statute has been given a certain construction over a long period of time by the agency charged with its enforcement and the construction is not patently wrong and does not result in serious hardship or injustice, the construction given it by the agency is entitled to great weight. This Court has so held in State v. Houston Oil Co. of Texas, 194 S.W. 422 (Tex.Civ.App.1917, writ ref.), Calvert v. Fisher, 259 S.W.2d 944 (Tex.Civ.App.1953, writ ref.).

The judgment of the trial court is in all things affirmed.

      . See: Odell v. Rihn, 19 Cal.App. 713, 127 P. 802 (1912), People v. Ahearn, 196 N.Y. 221, 89 N.E. 930, 26 L.R.A.(N.S.) 1153 (1909).

      . 53 Tex.Jur.2d Statutes § 126 (1964), and cases there cited.


author: DIES, Chief Justice.

text:
    BOSWELL, O’TOOLE, DAVIS & PICKERING, Appellant, v. Jeanne D. TOWNSEND et vir, Appellee.
    No. 7903.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 13, 1977.
    Robert J. Piro, Houston, for appellant.
    Robert M. Welch, Jr., Max Garrett, Houston, for appellee.
   DIES, Chief Justice.

Because of the complicated and confusing nature of the facts presented to us by the case from which this appeal is taken, we are constrained to make a rather lengthy statement of the events which have transpired in order to bring this appeal properly into focus.

Jeanne D. Townsend filed suit for divorce against her husband John D. Townsend, Jr. According to allegations made by the law firm of Boswell, O’Toole, Davis & Pickering, the wife entered into a contract with it to prosecute the divorce action for her, but later discharged the firm and retained new counsel. Boswell, O’Toole petitioned to intervene in the divorce action on October 24, 1975, seeking to enforce the contract as a debt for “necessaries” as against both the husband and the wife.

On January 22, 1976, the court below dismissed the intervention as to the husband and severed the proceeding as to the attorney fees. Thereafter, the record shows that on April 5, 1976, a “Final Judgment and Divorce Decree” was entered in the case at bar. Boswell, O’Toole filed notice of appeal on April 6, 1976, from the trial court’s action in dismissing its intervention as to the husband.

Both a motion to dismiss appeal and a supplemental motion to dismiss appeal have been filed by the husband and carried along with the case. The husband makes much of the fact that he has voluntarily intervened in a pending suit brought by Boswell, O’Toole against his former wife and argues that his action in so doing has rendered this appeal moot.

By his supplemental motion to dismiss this appeal, the husband has brought to our attention the fact that on July 16, 1976, Boswell, O’Toole took a voluntary non-suit as to all parties in the suit from which this appeal was taken, and Boswell, O’Toole, in its answer to the husband’s motion to dismiss appeal, admitted that it had so done. Yet, Boswell, O’Toole still vigorously argues that it has the right to appeal from the trial court’s action dismissing the husband from liability on the suit for attorney fees.

In considering the contentions of the parties, we note that no final hearing on the merits of appellant’s cause of action has ever been held.

Justice Hamilton, speaking for our Supreme Court in Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex.1962), set out the effect of taking a voluntary non-suit as follows:

“It is elementary that a dismissal is in no way an adjudication of the rights of parties; it merely places the parties in the position that they were in before the court’s jurisdiction was invoked just as if the suit had never been brought. White v. White, 70 R.I. 48, 36 A.2d 661, 151 A.L.R. 1374; Bryan v. Smith, 7 Cir., 174 F.2d 212, 11 A.L.R.2d 1402; see 17 Am. Jur. 158, Dismissal, Discontinuance, and Nonsuit, § 86.” (Emphasis added.)

See also Rodriguez v. Vela, 488 S.W.2d 872, 875 (Tex.Civ.App. — San Antonio 1972, no writ); Valdez v. Gill, 537 S.W.2d 477, 480 (Tex.Civ.App. — San Antonio 1976, writ ref’d n. r. e.).

Moreover, as we said in McFarling v. Lapham, 489 S.W.2d 435, 440 (Tex.Civ.App. —Beaumont 1972, writ ref’d n. r. e.):

“It is fundamental that one may not complain of errors in a judgment which do not affect him injuriously or which merely affect the rights of others. Shell Petroleum Corporation v. Grays, 131 Tex. 515, 114 S.W.2d 869, 870 (1938). The right of appeal rests only in an aggrieved party to a lawsuit. Texas Employers Ins. Ass’n v. Howell, 107 S.W.2d 391, 392 (Tex.Civ.App., Dallas 1937, error dism.).” (Emphasis added.)

Having taken a voluntary non-suit in the case at bar, Boswell, O’Toole has now returned to the position in which it was prior to filing its petition in intervention. At the time the partnership disengaged itself from the litigation, there was an existing order dismissing its intervention. After having voluntarily dismissed its petition in intervention, it is in no position to contend that the dismissal was erroneous. Under these circumstances, nothing is presented for review and the appeal is DISMISSED.

It is so ordered.

STEPHENSON, J., not participating.


author: WALTER, Justice.

text:
    KIDS KOUNTY KLOTHING, INC., et al., Appellants, v. LACHMAN-ROSE COMPANY, INC., Appellee.
    No. 4955.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 13, 1977.

      Larry G. Patton and Brice A. Tondre, Wright & Tondre, Houston, for appellants.
    J. Russell Davis, Davis & O’Connor, San Antonio, for appellee.
   WALTER, Justice.

Lachman-Rose Company, Inc., whose principal offices are located in San Antonio, Bexar County, Texas, filed suit in Bexar County against Kids Kounty Klothing, a corporation and Sid C. Weiss, both of Houston, Harris County, Texas, on two license agreements. The defendants’ pleas of privilege were overruled and they have appealed.

Under the license agreements Rose leased Kounty space in two stores in Houston, Texas. Weiss personally guaranteed the performance of Klothing for the first three years.

In its controverting plea Rose sought to maintain venue in Bexar County under subdivisions 23 and 29a of Article 1995, V.A. C.S. Under subdivision 23, plaintiff was required to establish Kounty was a corporation; that Rose had a cause of action against Kounty; and the cause of action or part thereof arose in Bexar County. In so far as the corporate defendant is concerned, the only question presented is whether there is any evidence to support the finding the cause of action or any part thereof arose in Bexar County.

Following some preliminary negotiations Kids Kounty Klothing and Weiss executed the agreements in Harris County on February 24, 1974 and mailed them to Rose in San Antonio. After checking the instruments, Rose executed them on March 20, 1974, in Bexar County and returned fully executed copies to appellants. The cause of action for breach of the written agreements occurred after they were executed. The facts of this case show there was no meeting of the minds between the contracting parties until the agreements were executed by Rose in Bexar County and returned to appellants. The execution of the contract was consummated in Bexar County. We hold there is some evidence to support the judgment against the corporate defendant. Lone Star Gas Company v. Coastal States Gas Producing Company, 388 S.W.2d 251 (Tex.Civ.App. — Corpus Christi 1965, no writ); Pitt Grill, Inc. v. Albert, 432 S.W.2d 160 (Tex.Civ.App. — Dallas 1968, no writ).

In its controverting plea, Rose asserts:

“The Plaintiff further states that since the Defendant, SID C. WEISS, personally guaranteed the contracts entered into by the corporate Defendant, he is a necessary party to this cause of action. Therefore, if venue is properly maintainable against the corporate Defendant under either subdivision 5 or 23 of the venue statute, then venue is properly maintainable against the individual Defendant in Bexar County under subdivision 29a of Article 1995, V.A.C.S.”

The only relief Rose is entitled to under its pleadings against Kounty, the corporate defendant properly suable in Bexar County under subdivision 23 of Art. 1995, Y.A.C.S., is a money judgment for a breach of contract between Rose and Kounty. This judgment can be obtained in Bexar County without Weiss’ presence as a party.

In Loop Cold Storage Company v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.1973), the court said:

“. . . The question then is whether Loop is a necessary party in that suit. To be a necessary party (per subdivision 29a) Loop’s joinder in the Nueces suit must be necessary in order to afford plaintiff the complete relief to which it is entitled under the facts of the Nueces case against Alford and Express. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (1944); Shaw v. Allied Finance Co., 161 Tex. 88, 337 S.W.2d 107 (1960); Weaver v. Acme Finance Co., 407 S.W.2d 227 (Tex.Civ.App.1966, no writ) . . . If there were any basis in these facts for the plaintiff to claim a joint liability of these parties, Loop could be retained in the Nueces suit. Commonwealth Bank & Trust Co. v. Heid Bros., Inc., 122 Tex. 56, 52 S.W.2d 74 (1932). The plaintiff did draft its petition as if there were one shipment of 600 boxes of meat for which both Alford and Loop were responsible, and plaintiff prayed for the full amount of its damages from all three defendants. However, there is no proof of joint responsibility, and this is a burden plaintiff had to carry in order to retain venue in Nueces County. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956). Under the Ladner holding the plaintiff was required to prove that no effectual decree could be rendered between plaintiff and the parties to the Nueces shipment (Alford and Express) without joining Loop. Plaintiff has presented proof that it is entitled to recover from one or more of these defendants, and it argues that separate trials increase the chances that this recovery will not be obtained. But the lack of proof of causation, and the chances of plaintiff collecting from some defendant, are not factors which affect the determination of whether Loop is a necessary party under the venue statute.”

In Ladner v. Reliance Corporation, 293 S.W.2d 758 (Tex.1956), the court said:

“Subdivision 29a was enacted for the benefit of the plaintiff to enable him to bring suit in any county where the same may be maintained against at least one defendant under any other exception to Art. 1995, and to obtain the full relief to which he may be entitled in that suit. See Pioneer Building & Loan Ass’n v. Gray, supra. As stated in Compton v. Elliott, supra, proof of the venue facts is the price which the plaintiff pays for the benefit he expects to derive from the exception. It is our opinion that a plaintiff who relies on Subdivision 29a to maintain venue of a defendant in the county of suit must not only allege the facts which make such defendant a necessary party to the suit within the meaning of that subdivision, but must also prove by independent evidence all of such facts except those which are taken as admitted under the pleadings or which are established as a matter of law by the allegations of the petition.
. Every person whose joinder is necessary to afford the plaintiff the full relief to which he is entitled in the suit which can thus be maintained in that county is a necessary party within the meaning of Subdivision 29a. ... It was, therefore, incumbent upon appellant to establish that the joinder of appellees is necessary to enable him to obtain full and effective relief in the suit which he is entitled to maintain in Jasper County against Mr. and Mrs. Newman under Subdivision 3.”

In Dina Pak Corporation v. May Aluminum, Inc., 417 S.W.2d 419 (Tex.Civ.App.— Corpus Christi 1967, no writ), the court said:

. . This relief is obtainable by plaintiff in the suit against the corporate defendant without the joinder of Keys as defendant. The fact that plaintiff alleged and testified that the merchandise was sold to Keys as well as to Dina Pak on the basis of Keys’ promise to pay for them would not constitute Keys a necessary party to the suit in Wharton County. Neither would Keys’ written contract guaranteeing payment up to $10,000.00 of Dina Pak’s account.”

We hold Rose has failed to discharge its burden of pleading and introducing some evidence of probative force that Weiss was a necessary party within the meaning of subdivision 29a of Article 1995, V.A.C.S.

The judgment is reversed as to Weiss’ plea of privilege and judgment is rendered that his plea of privilege is sustained. In all other respects, the judgment is affirmed.


author: CORNELIUS, Justice.

text:
    CITY OF DALLAS, Texas, Appellant, v. TURTLE CREEK MANOR, INC., Appellee.
    No. 8407.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 18, 1977.
    N. Alex Bickley, City Atty., J. Stanley Knight, Asst. City Atty., Dallas, for appellant.
    John Plath Green, Green, Gilmore, Crutcher, Rothpletz & Burke, Dallas, for appellee.
   CORNELIUS, Justice.

Appellant City of Dallas brought this action to enjoin Turtle Creek Manor, Inc., appellee, from violating the City’s comprehensive zoning ordinance. The City alleged that appellee was operating an establishment for the treatment of alcoholic, narcotic or psychiatric patients at 2707 Routh Street in Dallas where such use was prohibited by the ordinance. Appellee contended that it only operated a lodging and boarding house at 2707 Routh Street, and further that the City was precluded by estoppel or res judicata from maintaining its suit because it had issued appellee a building permit and a certificate of occupancy at that location. It was conceded by the City that the operation of a lodging and boarding house was permitted at 2707 Routh Street as a nonconforming use. Trial was to the court without a jury. Findings of fact and conclusions of law were made to the effect that (1) appellee’s use of the premises in question did not constitute the care of alcoholic, narcotic or psychiatric patients as defined by the ordinance, but did constitute use as a lodging or boarding house, and (2) as the City granted appellee a building permit and a certificate of occupancy, and no appeal to the Board of Adjustment was taken from such action, the City’s suit was barred by res judicata.

The City’s appeal presents twelve points of error which contend generally that (1) the use of the premises in question constitutes, as a matter of law, the care or treatment of alcoholic, narcotic or psychiatric patients, (2) there is no evidence or insufficient evidence to support the trial court’s finding that the use was that of a lodging or boarding house, and (3) the court erred in concluding that this action is barred by res judicata.

The zoning ordinance defines “lodging or boarding” as follows:

“Lodging or boarding: Lodging shall mean where one or more dwelling units are occupied or intended to be occupied by five or more persons who are not husband and wife, son or daughter, mother or father, sister or brother of the owner or operator. Boarding shall mean where meals are provided by the operation of a lodging house.”

The ordinance defines an establishment for the care of alcoholic, narcotic or psychiatric patients as one:

“. . . offering resident or out-patient treatment to alcoholic, narcotic or psychiatric patients.”

Before appellee decided to purchase the property in question, Mr. Salzberger, a member of appellee’s board of directors, discussed the matter with Mr. William McClintlock, the assistant director of Urban Rehabilitation of the Department of Housing and Redevelopment of the City of Dallas. Mr. McClintlock told Mr. Salzberger what would be necessary in order to secure a building permit and a certificate of occupancy as a lodging and boarding house. Building permits were obtained, the property was purchased by appellee, and some $67,000.00 worth of improvements were made. When the work was completed an occupancy record card, a prerequisite to occupancy, was issued by the City. The original application for the building permit described the use of the property as a “rooming house.” The permit issued pursuant to that application likewise specified the use as “rooming house.” A supplemental application for air conditioning, which described the use as a “halfway house,” was apparently refused, as indicated by the notation “reject-zoning” which appears on it. Another application for the air conditioning was subsequently made, and it listed the use as “boarding house.” The notation “Ok —Boarding House” appears on the bottom of that application and the permit issued in response to it also describes the use as “boarding house.” Mr. Salzberger testified that before Mr. McClintlock issued the permits, he was fully apprised of the type of operation appellee intended to conduct on the property. As no appeal was taken to the Board of Adjustment from the action of the City in issuing the permits, appellee contends, and the trial court found, that the City is barred by res judicata from enjoining appellee’s use of the property.

We do not regard the issue of res judicata to be dispositive of this case. The permits were issued to appellee for the purpose of improving and operating a rooming and boarding house. The City did not then, and does not now, dispute appellee’s right to operate a rooming and boarding house at its present location, but it contends that appellee was using the property for a different purpose not authorized by the permits and expressly prohibited by the ordinance. If that contention is correct, the City was entitled to enjoin the actual unlawful use, and the fact that permits had been issued for another type of use would be no barrier. The decisive issue then was whether appellee was using the property as a lodging or boarding house or as an “establishment for the treatment of alcoholic, narcotic or psychiatric patients.”

The meaning of “establishment offering resident or out-patient treatment to alcoholic, narcotic or psychiatric patients” is a matter of construction of the ordinance, and is a question of law. Harris v. Laquinta-Redbird Joint Venture, 522 S.W.2d 232 (Tex.Civ.App. Texarkana 1975, writ ref’d n. r. e.); 82 Am.Jur.2d, Zoning and Planning, Sec. 157.5, p. 650. But whether a particular use comes within that meaning is a question of fact. Langbein v. Board of Zoning Appeals, 135 Conn. 575, 67 A.2d 5 (1949); Coleman v. Estes, 281 Ala. 234, 201 So.2d 391 (1967); 82 Am.Jur.2d, Zoning and Planning, Sec. 157.5, p. 650. The words used by the ordinance to describe the prohibited use are specific and unambiguous. A resort to extrinsic aids of construction is therefore unnecessary. According to both its commonly accepted meaning and its judicial interpretation, “treatment” refers to the steps taken to effect a cure of an injury or disease, and includes examination and diagnosis as well as the application of medical remedies. Goodrich v. Tinker, 437 S.W.2d 882 (Tex.Civ.App. El Paso 1969, writ ref’d n. r. e.); Black’s Law Dictionary, 4th Ed. 1957, p. 1673. “Patient” means an ill person, commonly one under the treatment or care of a physician or surgeon or in a hospital. Red v. Group Medical and Surgical Service, 298 S.W.2d 623 (Tex.Civ.App. Galveston 1957, no writ); Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957) cert. denied, 355 U.S. 882, 78 S.Ct. 148, 2 L.Ed.2d 112. A fact question is therefore involved — whether appellee is operating an establishment which takes steps to cure persons who are ill from the use of alcohol or narcotics, or from psychosis. To support its contention that appellee was operating such an establishment, appellant relied upon the following evidence: There are thirty-two (32) residents of Turtle Creek Manor. Each has formerly been a patient of a mental institution. To become a resident a person must apply for admission by executing an application form which states that Turtle Creek Manor is a “rehabilitation residence for men and women.” The form inquires whether the applicant has a psychotherapist, and authorizes the division of vocational rehabilitation and others to release medical, psychiatric or psychological records to the admissions committee of Turtle Creek Manor. Turtle Creek Manor receives operating funds from the Texas Rehabilitation Commission, the Veterans Administration, the Commission for the Blind, the Dallas County Mental Health and Mental Retardation Unit and from private individuals. Residents do not pay for their own room and board. Turtle Creek Manor employs two full-time and eight part-time counselors. Three of the part-time counselors reside at 2707 Routh Street and provide nighttime and weekend counseling for the residents. The majority of the residents avail themselves of the counseling services and receive counseling an average of five hours per week. In a form letter used to solicit contributions, ap-pellee refers to itself as “an innovative approach to the solution of mental problems” and as “providing Dallas and Texas with this much needed alternative to mental health treatment.” The information sheets attached to the letter state that Turtle Creek Manor:

. . has the distinction of being Dallas’s first and one of Texas’s few halfway houses for emotionally disturbed persons. During its six years of operation, Turtle Creek Manor has achieved a record of successful and innovative leadership in demonstrating the effectiveness of the halfway house concept for the rehabilitation of the emotionally disturbed in a community setting.
The variety of services offered by Turtle Creek Manor includes room, board, 24 hour supervision, individual and group counseling, vocational counseling, and help with finding and holding jobs, a week’s intensive orientation for new residents, an arts and crafts program, and recreational activities .
Since July, 1968, Turtle Creek Manor has aided in the rehabilitation of 700 individuals. Upon leaving Turtle Creek Manor, 84% of our ‘graduates’ become self-supporting citizens without further need of residential mental health services. This success rate is even more impressive with the knowledge that our average resident has been hospitalized 2½ times before he comes to us.
The local mental health community is agreed that Turtle Creek Manor is a necessary part of the mental health system in Dallas and Texas. Leaders in the field are increasingly agreed that the halfway house offers the best hope for most of our emotionally disturbed citizens to leave behind what is so often an economically dependent or institutionalized life style to become self-supporting and contributing members of our society.
Turtle Creek Manor is the way of the future for mental health care with the exciting distinction of being NOW!”

The Articles of Incorporation of Turtle Creek Manor, Inc. state:

“The purposes for which the corporation is organized are to maintain a residence for the use of patients and ex-patients from mental hospitals and to facilitate said mental patients in their rehabilitation for return to their employment and community living. The acceptance of patients or ex-patients for residents shall be based entirely upon recommendations from appropriate medical advisers with respect to the capacity of such persons for rehabilitation, and such acceptance shall be entirely without regard to any ability of any resident to pay any fee or expenses of any kind with respect to such residence.”

To sustain its position appellee relied upon the following evidence: James Essinger, appellee’s executive director, testified that Turtle Creek Manor provides:

. . a residence for people who come who are discharged from mental hospitals, a place to stay, a place to sleep, and a place to eat, a place to provide or to have dialogue with other people, to get back on their feet in society.”

He stated that more than 50% of the residents have jobs. In answer to the question: “Is it the main purpose of Turtle Creek Manor to provide psychiatric or sociological assistance to people living at Turtle Creek Manor? A helping hand?”, he said: “No, sir.” Mr. Salzberger, a member of appel-lee’s Board of Directors, testified in part as follows:

“A Their job basically is to find a roof for the heads of these people who have been dismissed from institutions, discharged as missing people. They live here. They have their board and they have their room, and they have constant contact with their peers, with people who have had the same type of problems. They live together in hopes that this can help them get into society more easily than if they went back to what their original surroundings were.
Q Now, do you treat alcoholics at 2707 Routh Street?
A Not at all.
Q Do you have or to your knowledge have you had any alcoholics who was currently an alcoholic in your 2707 Routh Street?
A Not to my knowledge.
Q Now, do you dispense any drugs at 2707 Routh Street?
A Not even an aspirin.
Q Will you keep a person who is being treated for alcoholic — as an alcoholic — being treated — strike that.
Do you know of any narcotic person who is currently a narcotic in your house?
A Not that I know of.
Q Have you ever treated a person who was a narcotic?
A Never, to my knowledge.
Q Have you ever had a person living in your quarters who was currently under the treatment of a psychiatrist?
A Not to my knowledge.
Q Have you ever — has the Defendant ever performed any psychiatric treatment at 2707 Routh Street?
A None whatsoever.
Q Do you have on call any psychiatrist to serve the people there?
A None. If a person requires any help, he goes back to the person who referred him to us originally. We don’t refer to anybody nor, sir, do we have anybody on staff or on call.
Q Is it not true that the only people there are people who have been discharged as a psychiatric patient?
A That’s the only basis we will accept them.
Q Or a person who has been discharged as a narcotic?
A That I can’t answer but I would guess it is exactly the same answer. If he is being treated now, we don’t want any part of it.
Q What about alcoholics?
A Same thing as a narcotic.”

Mr. Salzberger further testified that Turtle Creek Manor would not accept any resident if they knew he was still under psychiatric treatment of any sort.

Upon the foregoing evidence, the trial judge found as a fact that the present use of the property was not for the treatment of alcoholic, narcotic or psychiatric patients, but was for a lodging or boarding house. We find the evidence sufficient to support that conclusion. According to appellee’s evidence, no one presently under such treatment is a resident of Turtle Creek Manor. All residents are those who have been dismissed or discharged from such treatment. No medicine is administered or dispensed. No medical treatment is administered, unless it can be said that “counseling” is such treatment. Whether counseling amounts to medical treatment depends upon the circumstances in which it is administered or provided. In the context of this case, it cannot be said as a matter of law that appellee’s counseling services constituted the application of medical remedies. The same is true of the 24 hour supervision. If appellee’s use of the property was not for the care or treatment of alcoholic, narcotic or psychiatric patients, it would, according to undisputed evidence, fall within the ordinance’s definition of a lodging or boarding house.

Appellant relies heavily upon Turtle Creek Manor’s Articles of Incorporation and certain of its advertising brochures which refer to its functions as a halfway house for the rehabilitation of “mental patients” and “emotionally disturbed persons.” But the question here is not what Turtle Creek Manor advertised or stated its purposes to be, but what type of establishment it was actually maintaining. Considering the evidence of appellee’s actual use of the property, we cannot say the trial court’s findings are without sufficient evidence to support them.

The judgment is affirmed.


author: McKAY, Justice.

text:
    E. J. BRIDWELL et ux., Appellants, v. CITY OF CENTER, Appellee.
    No. 963.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 20, 1977.

      William Drew Perkins, Lufkin, for appellants.
    Bennie C. Boles, Center, for appellee.
   McKAY, Justice.

This is an eminent domain case. The City of Center (the City), appellee, a municipal corporation duly organized, formed and created under the general laws of the State of Texas, filed proceedings in eminent domain in the district court for fee simple title to the surface estate in and to 104.109 acres of land belonging to E. J. Bridwell and wife, Edna Bridwell. The City was seeking to build a water supply reservoir, dam and spillway; and the property in question was to be used, together with other tracts, for such purpose. The question of damages was submitted to three special commissioners, appointed by the court, who upon notice and hearing awarded appellants $44,830.00 for the fee simple title to the surface estate in the land, to which the appellants duly filed their objections and perfected their appeal therefrom. The matter was tried before a jury in the district court on one special issue inquiring about damages. The charge of the court was not objected to, and no special issues were requested by appellant. Upon the verdict of the jury, the court awarded fee simple title to the surface estate to 104.109 acres to the City, and $52,054.50 in damages to appellants.

Appellants bring four points of error. Point one states, “The Honorable Trial Court erred in entering judgment in this cause because the City of Center, Texas, had no legislative grant of authority to take a portion of Defendant’s property for the purpose of acquiring soil for use in the construction of the dam.” No assignment of error is included in the amended motion for new trial complaining of the lack of legislative grant of authority in the City to take any part of the land, nor is there any wording approaching such complaint.

Rule 320, Tex.R.C.P., provides, “Each motion for new trial shall . . . specify each ground on which it is founded, and no ground not specified shall be considered.” A motion for new trial shall be filed as a prerequisite to appeal, and a matter is not preserved for appellate review without having been included in any assignment of error in the motion or amended motion for new trial. Rule 324, Tex.R.C.P.; St. Louis Southwestern Railway Co. v. Gregory, 387 S.W.2d 27, 29 (Tex.1965).

Rule 374, Tex.R.C.P., provides: “The motion for new trial, when required to be filed . . . shall constitute the assignments of error on appeal or writ of error. A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived. . . . ” Hester v. State, 497 S.W.2d 501, 503 (Tex.Civ.App.-El Paso 1973, writ ref’d n. r. e.). Since the matter complained of in appellants’ point of error one is not included in any assignment of error in the amended motion for new trial, and since the situation does not come under any exception to Rule 324, we hold that appellants’ first point of error has been waived by failure to assign such point as error in the amended motion for new trial.

Appellants’ points of error two, three and four complain of the trial court’s failure to submit issues on the following questions, respectively: (2) whether or not defendants’ land was taken for the sole purpose of furnishing a site for the construction of a municipal water reservoir, (3) whether or not the City acted “capriciously and arbitrarily” in taking a portion of defendants’ land for the purpose of supplying soil for use in the construction of the dam, and (4) whether or not the City acted arbitrarily and capriciously in seeking to take additional land “above the 59.322 acres it originally sought to take from defendant.” As pointed out above, appellants made no objections to the court’s charge and requested no special issues.

Failure to submit an issue is not a ground for reversal if its submission, in substantially correct wording, has not been requested in writing and tendered by the party complaining of the judgment. Rule 279, Tex.R.C.P.; Hines v. Pointer, 523 S.W.2d 733, 743 (Tex.Civ.App.-Ft. Worth 1975, writ ref’d n. r. e.); Freeman v. Carroll, 499 S.W.2d 668, 670 (Tex.Civ.App.-Tyler 1973, writ ref’d n. r. e.). Since appellants neither objected to the court’s charge nor requested special issues, points of error two, three and four have been waived.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    John L. SPINKS, Sr., et ux., Appellants, v. Annie Mae ESTES, Appellee.
    No. 966.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 27, 1977.
    Rehearing Denied Feb. 17, 1977.

      Paul S. Colley, Henderson, Joe E. Griffith, Crockett, for appellants.
    Frank P. Granberry, Granberry & Hines, Crockett, Lowell C. Holt, Gilmer, for appel-lee.
   MOORE, Justice.

This is a trespass to try title suit. Annie Mae Estes, the holder of record title, (plaintiff) brought suit against John Spinks and his wife, Georgia, (defendants) to recover two tracts of land alleging that they had unlawfully entered and dispossessed her of the land on August 4, 1970. The defendants answered by a plea of not guilty, a general denial and additionally asserted a claim of adverse possession under the ten-year statute of limitations. Trial was before a jury. The sole special issue submitted concerned the defendant’s assertion of title by adverse possession. Pursuant to the jury’s negative response to the special issue, the trial court entered judgment awarding the plaintiff title and possession of both tracts of land. After their motion for judgment non obstante veredicto had been overruled, the defendants perfected this appeal.

In support of her claim of prior possession, the plaintiff testified that she had acquired the land by deed dated July 23, 1920 and had lived thereon until 1922 but not since that time. She introduced tax receipts dating back to approximately 1928. She testified that in 1967 or 1968 she gave the defendant, John Spinks, permission to use the land for pasture purposes. She also testified that under their agreement Spinks was to “look after the property for me” and no rent was to be charged. Plaintiff also introduced a letter into evidence which she had received in 1970 from the defendant, Georgia Spinks. In the letter, Mrs. Spinks mentioned a prior conversation with Mrs. Estes’ son concerning the defendants’ desire to purchase the land in question. She stated it was the understanding of Mr. Spinks that Mrs. Estes would quote a price which she would be willing to accept, or state whether she would be willing to lease the land to them or whether she would give them an option to buy the land. Finally, the letter contained this statement:

“We have spent a great deal to improve this land; fertilizing, liming and planting to permanent pastures both as an obligation to care for it well because you so graciously let us use it. . ”

Both defendants testified at the trial. Mr. Spinks acknowledged his offer to purchase the land from Mrs. Estes in 1970. Mrs. Spinks also acknowledged the 1970 letter wherein they offered to purchase the land.

By a single point of error defendants contend that the trial court erred in refusing to grant their motion for judgment non obstante veredicto. Their sole contention is that the plaintiff failed to discharge her burden either by establishing a regular chain of title from the sovereignty of the soil or showing superior title by reason of prior possession. Consequently, they argue they were entitled to judgment even though the jury answered adversely to them on their claim of adverse possession. We cannot agree with this proposition.

We will deal first with the plaintiff’s right to recover on the theory of prior possession. In trespass to try title suits the rule that a plaintiff must recover on the strength of his own title and not on the weakness or lack of title of his adversary is so fundamental that it needs no citation.

We are of the opinion that the judgment of the trial court as to title and possession must be affirmed. The undisputed proof shows that the possession of the plaintiff was prior in time to that of defendants. There was no proof of title in defendants. Therefore, the plaintiff by virtue of prior possession was entitled to judgment.

What was said by the Supreme Court in the early case of House v. Reavis, 89 Tex. 626, 35 S.W. 1063, 1064 (1896), applies with equal force here. The court, speaking of prior possession, said: . . Such possession as was shown to have existed in the plaintiffs of the property in controversy is prima facie evidence of title in them, and was sufficient to entitle them to recover, against the defendants . . . The same general principle has been followed by the holdings in Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243, 247 (Tex.1964); Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410, 413 (1943); Dinwitty v. McLemore, 291 S.W.2d 448, 451 (Tex.Civ.App. — Dallas 1956, no writ); Katz v. Maddox, 256 S.W.2d 249 (Tex.Civ.App.— San Antonio 1953, writ ref’d n. r. e.).

A similar situation existed in the case of Katz v. Maddox, supra. There the defendant had written a letter to the plaintiff in which he had acknowledged the plaintiff’s title to the land in controversy. The court held that despite plaintiff’s failure to prove title from the sovereign such letter was sufficient to allow recovery by the plaintiff by virtue of prior possession when there was no proof of title in the defendant.

It is without dispute that the plaintiff was in possession of the land prior to the entry by defendants. We hold that the uncontradicted evidence was sufficient to show defendants acknowledged plaintiff’s prior possession thereby establishing prima facie evidence of title in plaintiff.

Plaintiff also sought to establish her title under the regular chain from the sovereignty of the soil and introduced twenty-three exhibits purporting to be instruments establishing her chain of title. Defendants have raised serious questions as to the sufficiency of the property description in most of the deeds. In view of our conclusion that the plaintiff established her title under the theory of prior possession, we will not extend this opinion by ruling on the sufficiency of the description in the various instruments and then determining whether the plaintiff also established record title. The fact that the plaintiff also offered proof of her title by evidence of a regular chain of title from the sovereign, whether successful or not, would not defeat her claim to title under the theory of prior possession. Buvens v. Brown, 290 S.W. 1086, 1089 (Tex.Com.App.1927, opinion adopted); Warren v. Swanzy, 361 S.W.2d 479, 487 (Tex.Civ.App. — Beaumont 1962, writ ref’d n. r. e.); see Dinwitty v. McLemore, supra; see also 56 Tex.Jur.2d Trespass to Try Title sec. 7.

The judgment of the trial court is affirmed.

      . The letter read “This is my acknowledgment to you that I am in possession of your land, and that I am holding it for you.”


author: KEITH, Justice.

text:
    Herman BOSTICK et al., Appellants, v. E. Wayne MOUNCE, Trustee, et al., Appellees.
    No. 7915.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 27, 1977.

      J. C. Zbranek, Liberty, Stanley C. Frank, Houston, for appellants.
    Richard Morrison, Pickett & Pickett, Liberty, for appellees.
   KEITH, Justice.

We write the second chapter in the continuing battle of E. Wayne Mounce to harvest the timber upon his 700-acre tract of land in Liberty County. He is opposed in his efforts by W. C. Leasure who has acquired all — or nearly all — of the lands surrounding that of Mounce. See our comments to be found in Mounce v. Bostick, 531 S.W.2d 887 (Tex.Civ.App. — Beaumont 1975). Leasure sought review of our decision but his application (in our No. 7762) modifying the temporary injunction was refused, no reversible error.

Leasure now contends that immediately after we entered our earlier order modifying the temporary injunction which he had obtained, Mounce entered upon the strip “for the purpose of ‘finding’ the ‘connecting road’ that this Court [had] mentioned.” Leasure’s counsel continues: “As might be suspected, they ‘found’ such a road with the aid of machetes, axes and vehicles. They then brought surveyors to stake such ‘road’.”

Leasure then filed amended pleadings in the original injunction suit brought against him by Mounce (our No. 7754) seeking an injunction against Mounce from further use of the land lying to the west of the 200-foot strip, contending, in essence, that there was no adjacent road there.

In the meanwhile, Leasure had placed a small drain pipe across the flowing creek mentioned in our earlier opinion (531 S.W.2d at 888); and, as might have been expected, the rains washed it out leaving the road down the strip impassable. Mounce then constructed a low-water crossing over the creek but it was ripped out by Leasure’s men using bulldozers and other heavy equipment.

After a lengthy hearing at which many witnesses testified, the trial judge denied Leasure’s plea for affirmative relief and granted that sought by Mounce in his cross-action. The court found that there was a bona fide dispute as to the existence “of a connecting road situated adjacent to and west of the road on the two-hundred foot (200') strip of land” and the court “expressly does not find that an adjacent connecting road either does or does not exist at said location.”

In our earlier opinion, we had occasion to call attention to the case of Frost v. Mischer, 463 S.W.2d 166 (Tex.1971), forbidding the litigation of title to land in injunction suits. Yet, in this second appeal, each party has carefully refrained from placing his title in issue.

We neglected to mention, in our earlier opinion, another important rule governing appellate review of orders granting or refusing temporary injunctions stated by the late Justice Norvell in Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421-422 (1959), from which we take this quotation:

“Deliberate action is essential for the accurate determination of legal rights and upon occasion this can be secured only by issuing a temporary decree protecting a status quo. Ordinarily, the hearing upon the temporary injunction is not a substitute for, nor does it serve the same purpose as the hearing on the merits. Generally the most expeditious way of obviating the hardship and discomforture of an unfavorable preliminary order is to try the case on its merits and thus secure a hearing wherein the case may be fully developed and the courts, both trial and appellate, may render judgments finally disposing of controversies.”

See also, Briscoe Ranches, Inc. v. Eagle Pass Ind. Sch. Dist., 439 S.W.2d 118, 120 (Tex.Civ.App. — San Antonio 1969, writ ref’d n.r.e.). The observations in this section of the opinion apply with equal vigor to all parties in the suit.

We have reviewed the testimony offered by the parties upon the hearing below and do not find an abuse of discretion upon the part of the trial judge. We discussed in the prior opinion the authorities governing such review and do not find it either necessary or proper to repeat such discussion. Nor do we deem it necessary to discuss the doctrine of clean hands as applied to Leasure’s destruction of the low-water bridge over the creek crossing the easement. Mounce had a lawful right to use such road — under the undisputed testimony — yet he could not use it after Leasure’s pipe washed out. Wanton destruction of the low-water bridge constructed by Mounce does little to enhance Leasure’s standing in a court of equity. See cases cited in 6 Texas Practice, Remedies, Injunctions, § 117, pp. 164-165 (2d Ed. 1973).

Finding no abuse of discretion, the judgment of the trial court is affirmed.