author: YOUNG, Justice.

text:
    Antonio VEGA, Individually and as next friend of Javier Antonio Vega, a minor, Appellant, v. ROYAL CROWN BOTTLING COMPANY et al., Appellees.
    No. 915.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.

      Jack K. Dahlberg, Jr., Bonilla, Read, Rodriguez, Beckman & Bonilla, Corpus Christi, for appellant.
    Harry F. Maddin, Allison, Maddin, White & Brin, J. R. Sorrell, Ronald L. Chachere, Sorrell, Anderson & Sorrell, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

In this products liability case, Antonio Vega sued H. E. B. Food Stores and Royal Crown Bottling Company on behalf of his twenty-three month old son, Javier. While in the care of his grandparents, Mr. and Mrs. Mariano Cruz, and while handling by himself a sixteen ounce bottle of Royal Crown Cola, the child suffered injuries when the bottle allegedly exploded. The bottle of cola had been delivered by Royal Crown to H. E. B. and had been bought, together with others in a six-pack, from H. E. B. by Mr. Cruz. The case was submitted on special issues to a jury who found against the plaintiff. Based on that finding the trial court entered a take-nothing judgment. The plaintiff appeals.

H. E. B. and Royal Crown had impleaded Owens-Illinois Glass Company as a third party defendant. Before the close of all testimony, each of the original defendants took a non-suit regarding Owens-Illinois; Owens-Illinois, therefore, is not a party to this appeal

Appellant’s first six points of error are addressed to the trial court’s refusal to admit into evidence the testimony of appellant’s expert witness, George Greene, Jr., about Ms examination of the bottle fragments which injured the child.

The events determinative of our decision on this matter are as follows: Owens-Illinois, the third party defendant at the trial level, filed a motion under Rule 167, T.R. C.P., to require appellant to produce the fragments of the bottle in question. This motion was filed in 1972 before the trial of this case. On September 18, 1972, the district judge considering the motion wrote a letter to the attorneys who represented the parties to this action. There the judge expressed his intent that “the Third Party Defendant’s Rule 167 Discovery Motion should be granted . . stated the conditions upon which the motion was to be granted; and requested the attorney for Owens-Illinois to consult with opposing counsel and then to prepare an order in accordance with the conditions set out in the letter. The order referred to in the letter was never prepared. The bottle fragments were lost in the mail even though Greene had properly deposited them in the mail addressed to the representative designated by Owens-Illinois.

On March 11,1974, trial of the action was begun. On that day, before any evidence was presented, Royal Crown and H. E. B. presented their “Motion in Limine” seeking to preclude any testimony by any expert witness of plaintiff about any physical examination of the bottle in question unless they, the defendants, were allowed to examine the bottle fragments. The trial court granted the motion.

Appellant contends that the exclusion of the proffered expert testimony was error because he was never ordered to produce the glass fragments under Rule 167. Absent a Rule 167 order of discovery, appellant contends that sanctions under Rule 170, T.R.C.P., were not available to appel-lees for the exclusion of the expert’s testimony.

Appellees contend that the September letter written by the district judge was an order for discovery. We disagree. The letter was merely an expression of the opinion of the court at the time the letter was written and should be considered only as a direction to counsel in the preparation of a final order. Until a final order was entered, the trial court could change its mind. We would point out that the letter states that the discovery motion “should be granted. . . ” The letter does not contain a recitation which states that the motion was granted as of the date of the letter. Further, the letter directs that an order be prepared after consultation with opposing counsel. It is clear that the letter, at best, is an order to prepare an order and has no other effect. See Chandler v. Doran Co., 44 Wash.2d 396, 267 P.2d 907 (1954).

We also hold that the oral motions for discovery, as a basis for sanction, made by H. E. B. and Royal Crown during trial were not timely. Such motions, during trial, could not be the basis for the trial court’s exercise of its coercive powers under Rule 170. Rule 170, as it applies to Rule 167, is applicable to pre-trial proceedings. American Central Insurance Co. v. Texhoma Stores, Inc., 401 S.W.2d 593 (Tex.Sup.1966); Employers Mutual Liability Insurance Company of Wisconsin v. Butler, 511 S.W.2d 323 (Tex.Civ.App., Texarkana 1974, writ ref’d n. r. e.).

We now direct our attention to the exclusion of appellant’s expert testimony on the basis of the court’s previous order sustaining the appellees’ motions in limine. The purpose of a motion in limine is to avoid the injection into the trial of matters which are irrelevant, inadmissible and prejudicial, and granting of the motion is not a ruling on evidence. Redding v. Ferguson, 501 S.W.2d 717 (Tex.Civ.App., Fort Worth 1973, writ ref’d n. r. e.). Therefore, any error in the trial court’s refusal to admit the testimony of appellant’s expert witness must be shown to have been such a denial of appellant’s right as was reasonably calculated to cause and probably did cause rendition of an improper judgment. The burden of showing such harm is upon appellant. Clark v. Turner, 505 S.W.2d 941 (Tex.Civ.App., Amarillo 1974, no writ); Rule 434, T.R.C.P.

The jury, in answer to Special Issue number 1, found that the Royal Crown bottle and its contents were reasonably fit for the purposes for which it was intended to be used at the time the bottle left the care, custody and control of appellee H. E. Butt Grocery Company. Even if we accept all of appellant’s expert testimony (on bill of exception) as true, we believe appellant has failed to show that the exclusion of the proffered testimony probably caused the rendition of an improper judgment. That testimony reveals that the bottle was “defective”. The defect was described as a “chip or scratch on the outside surface of the bottle’. There is no expert testimony about the time when the defect came into existence. That time is crucial. Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.Sup.1969). See Hill, How Strict is Strict?, 82 Tex.B.J. 759, 768 (1969). Other evidence presented at the trial reveals that the bottles of Royal Crown Cola were left in an ice chest in the backyard of the child’s grandparents from a Wednesday evening until about 6:80 p. m. the next day. The ice chest was apparently unattended for a large portion of the time before the accident. At least four persons were known to have access to the ice chest. From this evidence, along with that of the expert had it been presented to them, the jury could have reasonably inferred that the defect occurred after the bottle in question left the care, custody and control of appellee H. E. Butt Grocery Company. The appellant’s first six points of error are overruled.

Appellant’s seventh point of error complains of the trial court’s sustaining objections to the following questions propounded to Mariano Cruz by counsel for appellant:

“Q Did you at any time while you were in the store bang those bottles against anything?”
“Q Did you ever drop these bottles at any time from the time you bought them?
A No sir.”

Counsel for appellees objected to these questions as leading. The objection to the first question was sustained. The statement of facts does not show what the answer to the question would have been. Appellant has not brought forth the answer by bill of exception. Under such circumstances, it is not possible for us to determine whether the error, if any, was reasonably calculated to cause and probably did cause the rendition of an improper judgment. See Texas State Board of Registration for Professional Engineers v. Dalton, Hinds & O’Brien Engineering Co., 382 S.W.2d 130 (Tex.Civ.App., Corpus Christi 1964, no writ); Garcia v. Lacey, 316 S.W.2d 183 (Tex.Civ.App., San Antonio 1958, no writ).

About the second question, we would point out that the witness answered the question even though the objection was sustained. But the answer was not ordered stricken, nor was the jury instructed to disregard it. Further, in light of other testimony given by Mr. Cruz in regard to his handling of the bottle, we feel that appellant has failed to show that the trial court committed any error which probably «used rendition of an improper judgment. Rule 434, supra. Appellant’s seventh point of error is overruled.

In appellant’s eighth point of error he complains that the trial court erred in excluding a letter by Dr. Lankford to counsel for appellee H. E. B. regarding the extent of the child’s disability. This point of error is without merit. The letter in question was identified as plaintiff’s exhibit number 1, but it was not made a part of the record before us. We have no way of determining its contents. Appellant’s complaint of its exclusion presents no error.

Further, the argument of appellant’s counsel at trial and in Ms brief reveals that the letter would be material to the issue of damages to Javier Yega. Because the jury found that the bottle in question was reasonably fit for the purpose for which it was intended to be used, the damage issue became immaterial. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (Tex.Com.App.1989, opinion adopted); O’Day v. Sakowitz Brothers, 462 S.W.2d 119 (Tex.Civ.App., Houston [1st Dist.] 1970, writ ref’d n. r. e.). Appellant’s eighth point is overruled.

Appellant’s ninth point of error asserts that the trial court erred in allowing the physician who attended Javier Vega to relate certain medical history given by the child’s grandmother. Appellant contends that such testimony was hearsay and should have been excluded by the trial court.

Appellees point out that the testimony was not admitted for purposes of proving any fact in issue; that it was admitted solely for purposes of impeachment. The essence of the complained of testimony was that Javier Vega had fallen upon the bottle and thereby cut his wrist. Any error in permitting the testimony was harmless because appellant has failed to show that admission of this testimony for the limited purpose of impeachment probably caused the rendition of an improper judgment. Rule 434, supra. Appellant’s ninth point is overruled.

Appellant’s tenth and eleventh points of error complain of the trial court’s failure to submit appellant’s requested definition of “not reasonably fit for the purpose for which it was intended to be used”. Appellant argues that this was clearly error in light of the fact that the jury, during its deliberations, asked for a definition of the term “unreasonably dangerous”.

Rule 279, T.R.C.P., states:

“. . . Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.”

The definition which appellant sought to have incorporated into the court’s charge is found in “Plaintiffs’ Objections To The Court’s Charge”. Rule 273, T.R.C.P. provides:

“. . .A request by either party for any . . . definitions or explanatory instructions shall be made separate and apart from such party’s objections to the court’s charge.”

Appellant has, therefore, failed to comply with Rule 273. Also see T J Service Company v. United States Fidelity & Guaranty Company, 472 S.W.2d 168 (Tex.Civ.App., Corpus Christi 1971, writ ref’d n. r. e.). Appellant’s tenth and eleventh points are overruled.

In his twelfth and thirteenth points of error, appellant argues that there is no evidence to support the jury’s answer to Special Issue number 1 and that such finding is contrary to the greater weight and preponderance of the evidence. As previously noted, the jury found in Special Issue number 1 that the bottle and its contents were reasonably fit for the purposes for which it was intended to be used at the time the bottle left the care, custody and control of H. E. Butt Grocery Company.

The twelfth point, the “no evidence” point, is technically incorrect as presented to us. Appellant had the burden of proving that the bottle was not reasonably fit for its intended use. Appellant properly should have asserted in this point that the evidence established conclusively, or as a matter of law, that the bottle was not reasonably fit. See Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

Nevertheless, we will consider appellant’s “no evidence” point. All evidence in this case regarding the existence of a defect in the bottle and the time the defect came into existence is circumstantial. That circumstantial evidence which favors appellees’ contentions and supports the jury’s finding in answer to Special Issue number 1 is summarized as follows: According to Royal Crown’s plant manager, all new bottles are received from the manufacturer in pasteboard boxes with corrugated paper between the bottles. On the average, these new bottles are stored thirty days or less prior to being used. Used bottles come in wooden crates. Loose bottles, however, are not accepted. The wooden crates are not used if they are not in good condition, and each case is inspected every time it goes through the production line. The empty bottles are removed from the truck either by hand or by forklift. After being removed from the truck, the cases of bottles are parked on a dock which is sheltered by a roof. The area is protected from theft and vandalism by a high barbed wire fence. The bottles remain on the dock only one day. Then the bottles are moved to the production line.

During the production process, each bottle is subjected to three visual inspections. Also there is a machine which, through the use of a narrow light beam, inspects the bottom and the neck of each bottle for foreign matter and chips in the bottom. While on the line the bottles are subjected to 65 pounds of counter pressure. Any bottle that has a defect in it would explode under this pressure. At this point many bottle failures do occur. Thereafter when the liquid is put into the bottles, the bottle temperature is about 85 degrees; the liquid temperature is about 40 degrees. This is sufficient as a thermal shock test. The filled bottles are stored in a warehouse to await delivery; they are never stored outside. The sixteen ounce bottles of Royal Crown Cola are packaged in high cushion cartons with partitions that run the full depth of each carton. The cartons have been designed to prevent bottles from rubbing or bumping against each other.

While on display in the supermarket, some bottles are dropped, according to the H. E. B. store manager. Those bottles, however, which do not break are checked by store employees. Also, the display areas are checked twice each day.

From Mr. Cruz we learn that he bought the six pack of R. C. Cola on a Monday or Tuesday. The bottles sat on the porch of his home one or two days. On Wednesday, they were placed in the ice cooler in his backyard. Mr. Cruz stated that he placed the bottles in the ice chest one at a time and that he did not notice anything wrong with any of the bottles. The ice chest was unattended in the backyard of the Cruz home. At least- four persons had access to the ice chest prior to the date of the accident.

The foregoing evidence is some proof, above a mere scintilla, that the suspected bottle was reasonably fit for its intended use when it left the care, custody and control of the appellee H. E. B.

Nor are we able to find, as we necessarily consider all the evidence, that the evidence to the contrary so greatly outweighs that which supports the jury’s finding as to make such finding clearly wrong and manifestly unjust.

Most of the evidence which is contrary to the jury’s finding is found in the testimony of appellant’s expert witness, Mr. Greene. He testified that carbonated beverage bottles do explode without being struck by any superficial blow. Some reasons given for such explosions are over pressure carbonization, thermal shock, a defect such as a scratch inside a bottle, and a defect such as a chip or scratch on the outside of a bottle. Mr. Greene stated that the 65 pounds per square inch test used in Royal Crown’s production process is not an adequate test of what the bottle will do at a later time. It is his opinion that a temperature change of 75 degrees within a short period of time is necessary to check for thermal shock. We note that appellee Royal Crown employed a gradual temperature change in its production process. Mr. Greene further stated that the only other method of testing a bottle’s strength, other than pressure test and thermal shock test, is a visual inspection. In Mr. Greene’s opinion, a proper visual inspection would take from ten to twenty seconds per bottle, rather than the three bottle per second method used by Royal Crown.

The testimony of Mr. and Mrs. Cruz and their daughter does not reveal any mishandling by them. Also, Mr. Rossey, the manager of the H. E. B. Store which sold the bottle in question stated that some bottles of Royal Crown Cola have come in chipped. He further stated that it is possible for a customer to buy a chipped bottle.

In reviewing an “insufficient evidence” point of error, such as appellant’s thirteenth point, we must examine all of the evidence presented to the jury. In doing so, we find that the evidence supports conflicting inferences. It is important to note that the testimony of appellant’s expert witness does not establish any material fact as a matter of law. Elrod v. Elrod, 517 S.W.2d 669 (Tex.Civ.App., Corpus Christi 1974, no writ); Hodges v. State, 403 S.W.2d 207 (Tex.Civ.App., Texarkana 1966, writ ref’d n. r. e.). Indeed, the jury may accept lay testimony over that of experts. Blackmon v. Piggly Wiggly Corporation, 485 S.W.2d 381 (Tex.Civ.App., Waco 1972, writ ref’d n. r. e.); Muro v. Houston Fire & Casualty Insurance Company, 329 S.W.2d 326 (Tex.Civ.App., San Antonio 1959, writ ref’d n. r. e.). Although this Court has the power to reverse where the finding of the jury is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust, we are not authorized to substitute our judgment for that of the jury simply because we might have reached a different conclusion on the facts. Having examined the entire record, we find that the. jury’s answer to Special Issue number 1 is not so contrary to the weight and preponderance of the evidence as to be manifestly wrong and unjust. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Appellant’s twelfth and thirteenth points of error are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Albert A. WORREL, Appellant, v. Clara O. WORREL, Appellee.
    No. 947.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.
    Terry L. Scarborough, Gibbins & Spivey, Austin, for appellant.
    Menton J. Murray, Jr., McCullough, Murray & McCullough, Harlingen, for appellee.
   OPINION

YOUNG, Justice.

A former wife was granted judgment by the trial court against her former husband for $18,000.00 representing accrued and unpaid alimony installments provided by a Virginia divorce decree. The former husband appeals.

The facts, presented to the trial court without a jury, are undisputed. Albert A. Worrel and Clara O. Worrel were married in 1941 in Arizona and were divorced in 1967 in Virginia. In 1965, before the divorce, the parties executed a separation agreement called “Stipulation of Agreement In Accordance With Title 20 of the 1950 Code of Virginia As Amended”. This agreement required the husband to pay his wife $360.00 per month for her support until he retired from the military service. Upon his retirement he would then be required to pay to her one-half of his retirement pay, together with one-half of his net salary from any gainful employment.

The 1967 Virginia divorce decree ordered that the stipulation between the parties made in accordance with Title 20 of the 1950 Code of Virginia and dated June 10, 1965, be ratified, confirmed and made a part of the decree.

Subsequently, Colonel Worrel retired from the military service in Texas in 1968. Thereafter he became gainfully employed in Harlingen. He had begun making payments to Mrs. Worrel under their agreement before the divorce and continued to do so afterwards until he ceased paying in November 1971. On May 2, 1972, Mrs. Worrel filed suit in Cameron County, Texas, against Colonel Worrel for the arrear-age.

Both parties filed motions for summary judgment. The trial court granted plaintiff’s motion and rendered judgment against the defendant for an amount of damages to be determined later by the trial court or jury. Defendant appealed from that judgment. We dismissed the appeal because we determined the trial court’s judgment to be interlocutory. Subsequently, in the trial court, the parties agreed that plaintiffs damages were $18,000.00, but defendant disagreed with the trial court’s earlier ruling that defendant was liable. Judgment was thereupon entered September 30, 1974, for plaintiff for $18,000.00 against defendant. From that judgment the defendant appeals.

Appellant does not contend that there are genuine issues of fact. Rather he contends, in one point of error, that the law when applied to the undisputed facts requires a judgment for appellant because the appel-lee failed to convert the past due installments into a Virginia judgment for a sum certain and thus, as a matter of law, the Virginia divorce decree is not entitled to full faith and credit in Texas. For authority, appellant cites Rumpf v. Rumpf, 150 Tex. 475, 242 S.W.2d 416 (Tex.Sup.1951).

Appellant would prevail if the fact situation in the case at bar were such that a judgment in Virginia for the arrearage became a necessary predicate for relief in Texas. There is, however, another category of foreign alimony awards to which Texas courts must afford full faith and credit. That other category applies when the wife’s right to alimony payments has become absolute and vested under the original alimony decree and the accrued amount is not subject to modification. Quinn v. Quinn, 216 S.W.2d 1001 (Tex.Civ.App.—Fort Worth 1948, writ ref’d n. r. e.); Stout v. Stout, 214 S.W.2d 891 (Tex.Civ.App.—Texarkana writ ref’d n. r. e.). See Dye, Enforcement of Foreign Alimony Decrees in Texas: A Survey and Analysis, 38 Texas L.Rev. (1959).

In that regard, the appellee filed in the trial court a proper motion under Rule 184a, T.R.C.P. for the court to take judicial notice of Virginia law. For the court’s guidance, the appellee submitted Va.Code Ann. 1950 § 20-109 as amended set out in part as follows:

“Upon petition of either party the court may increase, decrease, or cause to cease, any alimony that thereafter accrue whether the same has been heretofore or hereafter awarded, as the circumstances may make proper; provided, however, if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed with the pleadings or depositions, then no decree or order directing the payment of alimony, suit money, or counsel fee shall be entered except in accordance with that stipulation or contract unless such party raise objection thereto prior to the entry of the decree.” (Emphasis supplied)

Further, the appellant directs the trial court’s attention to Dienhart v. Dienhart, 210 Va. 101, 168 S.E.2d 279 (1969). There Virginia’s court of last resort had occasion to interpret Code § 20-109. In that case a husband and wife had entered into a contractual agreement similar to the one entered into by the Worrels, calling for alimony for the wife. In a subsequent divorce suit by the wife a copy of the settlement agreement was filed and the husband did not object to the decree ratifying and confirming the agreement. And in our case the record reflects no objections by the husband to the decree ratifying and confirming the Worrels’ agreement. Subsequently, the husband in Dienhart requested from the trial court relief from the alimony originally ordered by that court under the terms of the original agreement. The trial court granted the relief requested and the wife took her appeal. The court there held at page 281:

“The proviso in Code § 20-109 which inhibits the usual power of the court to modify an award of alimony, controls this case. The settlement contract between Mr. and Mrs. Dienhart was signed by him and filed with her depositions, and he made no objection to the entry of the September 28,1966 decrée or the October 13, 1966 decree. The December 5, 1967 decree, which eliminated alimony, was an ‘order directing the payment of alimony’ within the meaning of the proviso in Code § 20-109. And the elimination of alimony under the December 5, 1967 decree did not accord with the settlement contract that provided for alimony of $125 per month. The December 5, 1967 decree was therefore in conflict with the Code § 20-109.”

And that court reversed the trial’s judgment modifying the alimony provision in the divorce decree.

The aforegoing clearly indicates the Virginia law to be that alimony provisions are final and absolute where a divorce decree incorporates, without objection, the provisions of a previously existing contractual agreement between the husband and wife. Because the facts in our ease are so strikingly similar to those in Dienhart, the provisions of the Worrels’ agreement and decree are therefore final and not subject to modification by the Virginia court upon the request of the appellant. Consequently, the trial court in our case was entitled to afford the Virginia decree full faith and credit and to grant the appellee her request for accrued and unpaid alimony under the Virginia decree.

The judgment of the trial court is, therefore, affirmed.


author: NYE, Chief Justice.

text:
    YEAGER ELECTRIC & PLUMBING COMPANY, INC., Appellant, v. INGLESIDE COVE LUMBER AND BUILDERS, INC., et al., Appellees.
    No. 970.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.

      Ronald M. Yeager, Aransas Pass, for appellant.
    William L. Ellis, Aransas Pass, for appel-lees.
   OPINION

NYE, Chief Justice.

This is a mechanic’s and materialman’s lien case involving a dispute between a subcontractor asserting a materialman’s lien and the owner of the improved property. Yeager Electric & Plumbing Company, Inc., the subcontractor, brought suit against Mary Beth Brewster, the owner of the properties, her son, Steve Brewster, Ingle-side Cove Lumber and Builders, Inc., the general contractor, and Joe Thompson on an open account and to establish and foreclose a statutory mechanic’s and material-man’s lien. Joe Thompson and Ingleside Cove Lumber and Builders, Inc. failed to answer. The trial court entered an interlocutory default judgment against the contractor, Ingleside Cove Lumber and Builders, Inc., and Joe Thompson, for the amount of the open account ($2,847.50), plus $1,200.00 attorneys’ fees and interest amounting to $266.44. This judgment was subsequently made final.

The court, without the aid of a jury, heard plaintiff’s suit against the owner. It resulted in a judgment that plaintiff take nothing against the owner and that plaintiff’s claim of lien be declared invalid. The court found that Steve Brewster had no interest in the property. Yeager, the subcontractor, has perfected its appeal to this Court. We reverse and render judgment for the subcontractor, Yeager.

The facts relating to Yeager’s establishment of its mechanic’s and materialman’s lien are virtually undisputed. Sometime prior to May 19, 1972, Mrs. Mary Beth Brewster, the owner of certain property entered into a turn-key contract with Ingle-side Cove Lumber and Builders, Inc. (hereafter referred to as Contractor), for the repair and replacement of a certain building, including the installation of a septic system and shell driveway for a two story restaurant building on Highway 35 north, Aransas Pass, Texas, then known as “Payne’s Restaurant”. The turn-key contract price for such work was set at $49,-000.00. On May 19,1972, Yeager submitted a bid to the general contractor for the air conditioning, plumbing and the electrical repairs and was awarded the electrical and plumbing jobs. The total contract for both electrical and plumbing amounted to $3,176.00 of which $1,933.00 was for the plumbing portion and $1,243.00 for the electrical portion.

Yeager commenced work on the plumbing and electrical subcontract around May 20th or 21st, 1972, and worked on the building until the building was ready to “trim out,” which was around July 15, 1972. On July 31, 1972, Yeager sent a statement to the contractor setting out that eighty percent (80%) of the electrical and seventy percent (70%) of the plumbing job had been completed. Yeager never received any part of the $2,347.50 due from the contractor or the owner. It then terminated its portion of the job before completion.

The funds which were to be used in paying the contract price of $49,000.00 to the contractor came from an escrow account at the First State Bank, Aransas Pass, Texas, being the proceeds of an S.B.A. loan to the owner, Mary Beth Brewster. From that account, the sum of $16,015.00 was paid on May 12, 1972, and $16,415.00 was paid to the contractor on June 23, 1972, making a total paid to the contractor of $32,430.00. After the June 23, 1972 payment, no further payments were made to the original contractor either from the escrow account or directly from the owner.

When Yeager did not receive his money from the contractor on his billing of July 31, 1972, he perfected his statutory lien against the owner. Yeager sent a notice letter by certified mail (return receipt requested) on August 3, 1972, to Mary Beth Brewster, the owner of the improved property, which was received by her on or about August 18, 1972. Included in the notice to the owner was the statement by Yeager that it, as subcontractor, was making a claim for a debt incurred by the original contractor, for the unpaid balance of $2,347.50 as a result of having furnished materials and labor on the owner’s property, describing the same. The letter advised Mrs. Brewster that as owner of the property she might become personally liable and her property become subject to a lien unless such funds were withheld from the contract for payment of this statement or unless the bill was otherwise settled. Thereafter, Yeager forwarded its mechanic’s and mate-rialman’s lien affidavit to the county clerk of Aransas County for filing on August 24, 1972. As required by statute, a copy of the letter of transmittal to the county clerk, together with two copies of such affidavit, were sent by certified mail to Mrs. Brewster and were in fact received by her.

It appears from the record that the contractor abandoned the job and failed to complete the same. The balance of the work was contracted out by the owner to various other contractors and was completed by them sometime in April, 1973. They were collectively paid approximately $17,-835.00. This brought the total contract price paid by the owner to $50,455.00.

Yeager then filed suit against the owner and the contractor as aforesaid alleging that the amount of $2,347.50 was due and owing for labor and materials furnished to the contractor on the owner’s property giving the legal description thereof. Yeager claimed that it had a valid mechanic’s and materialman’s lien which was filed of record in the mechanic’s and materialman’s lien records of Aransas County and that its mechanic’s and materialman’s lien entitled it to a first and superior lien upon the real estate owned' and described therein and on all the improvements, fixtures and personal property placed thereonl It sought judgment for attorneys’ fees, interest, for foreclosure of its lien on the said property, and for general relief.

Appellant brings forward two points of error on appeal. It contends that the trial court erred in holding: 1) that plaintiff take nothing against the owner of the property by declaring the plaintiff’s lien to be invalid, and in discharging and relinquishing the same, because its lien was properly perfected under Article 5453, Tex.Rev.Civ. Stat.Ann.; and 2) the trial court erred in holding that plaintiff take nothing against the owner, because it had also perfected its lien pursuant to Articles 5463 and 5469, which required the owner to retain funds for the benefit of Yeager.

The appellee replies to such points by stating that in order for a lien asserted under either Article 5453 or under Articles 5463 and 5469, “notice” must be specifically alleged in plaintiff’s petition and later proved before either lien can be fixed and perfected; and without an allegation of notice in plaintiff’s petition, a judgment fixing and foreclosing either of such liens could not be sustained. Therefore, the trial court was correct.

Appellee does not contend nor argue that Yeager has failed to secure and fix its liens on the owner’s property under Article 5453 or 5463 and 5469. During oral argument, appellee candidly admitted, from a question of the court, that except for the failure of the appellant to plead that it had given the requisite statutory notice Yeager would probably be entitled to a lien and judgment. It is appellee’s contention that the appellant Yeager failed to plead in his petition that the requisite statutory notice had been given to the owner. This is the specific question on this appeal.

During the course of the trial, Yeager offered the notice letters in evidence. The appellee objected on the basis “that there is no predicate in the pleadings, there is no allegations that any notice was ever given”. The trial court overruled the owner’s objections and admitted the letters into evidence. The subject letters gave the owner the necessary statutory notice of the filing of the mechanic’s and materialman’s lien. The trial court entered judgment for the appellee owner on an erroneous theory unrelated to the sole question raised by the parties in this appeal.

Appellee owner argues in effect that since the proof of notice had not been pled, it was error for the trial court to admit the letters into evidence in the face of his objection and, therefore, a required element of proof would have been missing had the court properly sustained the appellee’s objection. Appellee contends that a judgment (reversing and rendering) upholding the validity of the lien based on such evidence cannot be sustained here, since there were no pleadings to support the element of notice.

The giving of notice to the owners as required by Section 2, b(2) of Article 5453 is a condition precedent to the validity of a lien claimed by a subcontractor. Herrington v. Luce, 491 S.W.2d 478 (Tex.Civ.App.—Tyler 1973, no writ); Trinity Universal Insurance Company v. Palmer, 412 S.W.2d 691 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.). However, plaintiff alleged in its petition that it had filed its lien of record and alleged generally that it had perfected a first and superior lien on the Brewster property and that it was entitled to foreclosure and such other and further relief at law or in equity to which it shows itself justly entitled. No exceptions were levied or urged toward such pleading.

Formerly, a petition was required to allege with reasonable detail the performance or occurrence of such conditions precedent. But under Rule 54, T.R.C.P., it is sufficient to aver performance or occurrence generally. 2 McDonald, Texas Civil Practice, § 6.14.5(IV) (1970); Rule 54, T.R. C.P. A party may even plead liability in general terms, and if not excepted to, the pleading will authorize the introduction of evidence to establish the validity of the claim. Agnew v. Coleman County Electric Cooperative, 153 Tex. 587, 272 S.W.2d 877 (Tex.Sup.1954); Western Union Tel Co. v. Jeanes, 88 Tex. 230, 31 S.W. 186 (Tex.Sup.1895); Coleman v. Texas & Pac. Ry. Co., 241 S.W.2d 308 (Tex.Civ.App.—Dallas 1951, writ ref’d); Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254 (Tex.Civ.App.—Corpus Christi 1974, no writ); Houser v. Sunshine Laundries & Dry Cleaning Corporation, 488 S.W.2d 117 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.). Here, plaintiff alleged it had established its statutory lien without specifically alleging the step by step procedure it used in perfecting it.

The purpose of a pleading is to inform the court and the adverse party of what the pleaders’ contentions will be on the trial of a case. The office of special exceptions is to furnish the adverse party a medium by which to force clarification of and specifications in the pleadings when they are not clear or sufficiently specific. Rules 45 and 91, T.R.C.P.; McFarland v. Reynolds, 513 S.W.2d 620 (Tex.Civ.App.—Corpus Christi 1974, no writ); Farias v. Besteiro, 453 S.W.2d 314 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.); Pontarelli Trust v. City of McAllen, 465 S.W.2d 804 (Tex.Civ.App.—Corpus Christi 1971, no writ); Cruz v. Ansul Chemical Company, 399 S.W.2d 944 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.). The owner appellee did not levy or urge any special exceptions against Yeager’s pleadings, nor did appellee’s attorney move that such evidence be stricken from the record.

A party must present his complaints to the trial court concerning his opponent’s pleading and must identify the basis of his dissatisfaction. If a defendant is willing to try the dispute upon the plaintiff’s general allegations, even if they be defective, the fault is waived. 2 McDonald, Texas Civil Practice § 7.19, pp. 210,211 (1970). See also M. C. Winters, Inc. v. Cope, 467 S.W.2d 224 (Tex.Civ.App.—Texarkana 1971, no writ); First State Bank of Bremond v. Brannon, 486 S.W.2d 179 (Tex.Civ.App.—Waco 1972, no writ); Swinford v. Allied Finance Company of Casa View, 424 S.W.2d 298 (Tex.Civ.App.—Dallas 1968, writ dism’d, cert. denied, 393 U.S. 923, 89 S.Ct. 253, 21 L.Ed.2d 259).

While it is true that defendant objected to the introduction of the letters, proving “notice”, on the ground that such evidence was not raised by the pleadings, it was proper for the trial court to overrule the objection because there exists the well established rule that in the absence of special exceptions, the petition will be liberally construed in the pleaders’ favor. Scott v. Gardner, 156 S.W.2d 513 (Tex.Comm’n.App. 1941, opinion adopted); Sexton v. Kirk, 273 S.W.2d 85 (Tex.Civ.App.—Waco 1954, no writ); Coates v. Moore, 325 S.W.2d 401 (Tex.Civ.App.—Waco 1959, writ ref’d n. r. e.); Wolfe v. Brown, 340 S.W.2d 851 (Tex.Civ.App.—Waco 1960, no writ); Foster v. Lessing, 346 S.W.2d 989 (Tex.Civ.App.—Waco 1961, writ ref’d n. r. e.); Benson v. Grace Oil Company, 430 S.W.2d 98 (Tex.Civ.App.—Corpus Christi 1968, no writ); Appell Petroleum Corporation v. G. W. Townsend Lease Service, 375 S.W.2d 547 (Tex.Civ.App.—Corpus Christi 1964, no writ). See also Hammonds v. Roper, 493 S.W.2d 569 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); Fleetwood Construction Company, Inc. v. Western Steel Company, 510 S.W.2d 161 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Upon objection by defendant to the admission of plaintiff’s exhibits (notice) on the grounds that such were not supported by the pleading, and if such objection had been sustained by the trial court, it would have been necessary for the plaintiff to then request leave of the court to file a trial amendment. Rule 66, T.R.C.P. However, here, the objection was overruled. The petition had not been excepted to in the pleading stage. The defendant had allowed the plaintiff to go to trial on his general pleadings, pleading a debt, a valid lien with a prayer for foreclosure of such lien and for general relief.

There is still another reason why appellee’s defense to appellant’s appeal is without merit. Although appellee’s attorney objected originally to the introduction of the “notice letters” as exhibits, such evidence was later allowed in the record without any objection whatsoever. Steve Brewster, appellee’s witness, testified that he was handling all of his mother’s (Mary Beth Brewster’s) business at the time he received the letters (notices). He testified that they were dated August 3, 1972, and were received by him on August 9, 1972, one of which he referred to was plaintiff’s exhibit 3. At another time during the course of the trial, Yeager’s attorney questioned Steve Brewster with respect to PX 3 (the notice letter), the return receipts, and the affidavits of lien. Appellee’s attorney stated to the court: “Your Honor, there is no question about that. They (the owners) got them (the letters, the return receipts, and the affidavits of lien), they brought them to me.” The appellee’s objection to the notice letters being introduced into evidence was waived and is, therefore, without merit.

In addition, the trial court found that Yeager, on or about August 3, 1972, sent a statutory notice letter to Mary Beth Brewster and Steve Brewster and that such notice was received by them. The appellee did not object to the trial court’s findings nor did the owner file a cross appeal based on the trial court’s ruling.

We have examined the record carefully and it shows that the notices were in proper form and timely sent, that Yeager filed its. affidavits of lien (in good form) on August 24,1972, with the county clerk. Such filing was within ninety (90) days after the indebtedness accrued, thus satisfying Article 5458. The filing of the lien affidavit also satisfied Article 5469 in that such was filed not later than thirty (30) days after the work was completed. The record shows that the plaintiff, in following the statutory requirements, sent to the owner two copies of the affidavit claiming such lien. Since Yeager fixed and secured its statutory lien under the provisions of Article 5453, and established its lien on the owner’s property under the provisions of Articles 5453 and 5469 to the extent of ten percent (10%) of the contract price, Yeager was entitled to recover against the owner’s property to the extent of its lien in the amount of $2,347.50.

The judgment of the trial court is accordingly reversed and judgment is here rendered granting Yeager Electric & Plumbing Company, Inc. appellant, judgment against Mary Beth Brewster for the sum of $2,347.50, with interest thereon at six percent (6%) per annum from June 10, 1973, until paid and for all costs of court. The mechanic’s and materialman’s lien established by Yeager against the owner’s property recorded in Volume 16, pages 398, 399 of the Mechanic’s Lien Records of Aransas County, Texas, against the property described therein is here reinstated, and is of full force and effect until paid and released. If not paid, the appellant Yeager Electric & Plumbing Company, Inc. shall have its foreclosure of the above described lien to satisfy the debt for which let execution issue.


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    VERMILLION CONSTRUCTION COMPANY, Appellant, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, Appellee.
    No. 976.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.
    Thomas M. Andrews, Ellis, Andrews & Lawrence, Inc., Aransas Pass, Lee Maho-ney, Corpus Christi, Burt Ballanfant, New Orleans, La., for appellant.
    Richard A. Hall, Branscoxnb, Gary, Thom-asson & Hall, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This case involves a claim by a subcontractor against the general contractor for payment of extra work performed. The subcontractor’s bonding company, Fidelity & Deposit Company of Maryland brought suit originally for a declaratory judgment against various defendants, including the general contractor and its bonding company, Aetna Casualty & Surety Company, for a declaration as to the amount and validity of the claims of various defendants, including the subcontractor CRM Contractors, Inc. for which Fidelity might be liable. Fidelity sought a determination of whether there existed in fact an oral agreement between CRM and the general contractor that would require the general contractor to pay additional compensation for the extra work done by CRM.

Trial was before a jury which answered certain special issues in favor of the subcontractor CRM. The jury found that there was a subsequent oral agreement entered into between CRM and the general contractor Vermillion Construction Company (hereinafter called Vermillion) whereby Vermillion would pay CRM a reasonable price for doing the extra work. The jury found that $18,093.00 was a reasonable sum for the extra work. Vermillion and its bonding company Aetna have duly perfected their appeal to this Court.

The construction site upon which the subject of the controversy arose is known as the “Harbor Oaks Subdivision” and is located near Rockport, Aransas County, Texas. The owner of the land was Canoe Lake Corporation. The engineer on the job was Urban Engineering. The project site was ultimately to consist of a Venetian type water oriented subdivision with three (3) peninsulas or fingers of land extending from the shoreline into a salt water lake. Upon each of the peninsulas, lots were to be located around the edge with a street down the middle. Around the edge of the three peninsulas were to be placed concrete bulkheads. Between the peninsulas the water was dredged and the spoil was placed on the peninsulas. This accomplished two purposes: to deepen the water and to provide for some fill material on the subdivision site. Vermillion, who specialized in concrete bulkheads, was awarded the contract for a total bid of $292,191.08 for the water front and lot improvements.

Thereafter, Vermillion entered into a subcontract with CRM to do a portion of the work relating to the building of streets, curbs, gutters and to grade and level the lots within the subdivision. CRM’s bid was $61,589.62. Prior to the subcontract being entered into between Vermillion and CRM, Mr. Charles Vermillion and Mr. Charles McGuire, (the principal owner of CRM) visited the project site in order to examine the area and to describe CRM’s subcontract work. While at the project site, their discussion centered around problems which might be encountered by CRM in leveling and grading the lots. One problem discussed in particular was the necessity of obtaining sufficient dirt to raise the lots to the proper height in case some of the lots settled to an elevation below that required by the plans and specifications. The three peninsulas which were formed were made up of hydraulic fill material which in essence was dredged material. This material has a tendency to settle after being compacted. Once the fill material has become compacted, it would require additional dirt placed on top of it to bring it to the required elevation. CRM’s main concern in determining its bid amount was whether the dirt removed from the excavation of streets would be sufficient to compensate any settling of the land. After reviewing the job site, McGuire and Vermillion both agreed that the dirt removed from the street would be in sufficient quantity to take care of any settling of the lots. At the pre-bid conference which was attended by Vermillion, the owner, and the engineer, the subject of the fill material was again discussed. It was anticipated that the fill material would settle to such an extent that approximately 14,000 to 16,000 eubie feet of dirt would be required to raise the lots to the required elevation. It was the consensus of those in attendance that the surplus dirt from the excavation of the streets would be sufficient to take care of the settling.

CRM then moved onto the job site and began job operations. Within a week after CRM had moved onto the job site, it was discovered by Vermillion that the required length and width of each of the peninsulas in question were too short and did not conform to the plans and specifications. Vermillion determined that additional dirt was necessary to extend the peninsulas so that .they could get their machinery out far enough to install the concrete bulkheads in the water. After some of the bulkheads were placed in the water at their correct locations, they were a considerable distance from the peninsula land area. It was then discovered that it was necessary to bring in additional dirt to extend the peninsula shoreline to the bulkheads.

In order to alleviate this problem, Vermillion instructed CRM to haul the dirt which was removed from the street excavation to the end of the peninsula for the purpose of filling in and extending the length of such lots. CRM objected to this for the reason that if they were required to use the dirt that was removed from the street excavation, they would not have sufficient dirt for leveling and grading the lots to the required elevation as required in CRM’s subcontract. CRM stated that supplying this additional dirt to extend the peninsula area to the bulkheads was not a part of their job under their contract.

After some discussions, Vermillion agreed with CRM that the hauling of dirt to be placed at the end and the sides of the peninsulas was not a part of CRM’s contract. Therefore, Vermillion wrote a letter to Urban Engineering concerning the dirt shortage. The letter reads in part as follows:

“As you know at the pre-bid conference, the subject, ‘Settling of Fill Material’, was an item of discussion. Therefore, after the conference we anticipated a settlement of fill area to the extent of approximately 14-16000 cu. yds., to be obtained from excavation of street and other areas above specified grades. We have moved this dirt and placed it, not on the lots, as stated at pre-bid conference, because of settling of material, but on the ends of the fingers where the water ranged from -8' to -9½' deep at the bulkhead line, 18' - 30' out from waters edge. None of the shortage of length or over cutting was mentioned at the conference. None of the other bidders anticipated it would be necessary to measure the length at the fingers or verify any other widths or lengths on the plans. We certainly didn’t.”

CRM contended that an oral agreement was then reached between CRM and Vermillion whereby Vermillion agreed to pay or see to. it that CRM was paid for the additional work on the cost plus profit basis. Vermillion denies that any such oral agreement was ever entered into between it and CRM. In the meantime, CRM began removing the dirt from the street excavation for the purpose of extending the peninsulas to the bulkheads. Finally, CRM sent a detailed invoice to Vermillion which included the charges for the additional extra work in the amount of $18,093.00. Vermillion refused to pay any part of the charges claiming that there never was any agreement between it and CRM to do the additional extra work.

After CRM had performed its subcontract, there were various materialmen and suppliers of CRM who were making claims for unpaid bills. It was then that Fidelity instituted this suit in the nature of a declaratory judgment against the general contractor, the various suppliers and material-men and CRM seeking a declaration as to who was entitled to recover payments from CRM. Fidelity also sought a determination of whether there was an oral agreement to the effect that Vermillion would pay CRM for the extra dirt work in extending the peninsula areas.

After numerous stipulations by the parties, the case was tried upon the question of whether or not CRM reached an oral agreement with Vermillion for the extra work and if so, the amount of money CRM was due for such additional work.

Trial was before a jury. It found that: 1) Vermillion Construction Company required dirt from the fingers of the project to be used to extend such fingers to the bulkhead line for distances up to thirty feet and in water up to nine and a half feet in depth; 2) use of such dirt for purpose of extending the finger caused a shortage of dirt on the project which required additional dirt to be hauled in order to bring the lots to grade; 3) that at the time of the execution of the contract between CRM and Vermillion the parties thereto did not intend that the contract requirement of bringing the lots to grade might include the use of such dirt for the purpose of extending the fingers; 4) that Charles Vermillion told Charles McGuire that Vermillion Construction Company would pay for the hauling of additional dirt required to bring the lots to grade; 5) that CRM hauled the additional dirt required to bring the lots to grade; and 6) that the reasonable value of the work performed by CRM in hauling the additional dirt was $18,093.00.

Vermillion brings forward five (5) points of error on appeal. In its first two points, Vermillion asserts that the trial court was in error in overruling its motion for instructed verdict because the alleged oral contract encompassed work which was included in the original contract as a matter of law and that there was no evidence that there was a meeting of the minds of the parties and no evidence that there was an acceptance of the alleged terms of the oral contract.

At the close of the plaintiff’s evidence, Vermillion filed its motion for instructed verdict which was overruled by the trial court. The defendant Vermillion then proceeded with the evidence concerning its defense.

In reviewing the refusal of a trial court to grant a motion for instructed verdict, the appellate court must disregard all evidence adverse to the non-moving party and give credit to all evidence favorable to said non-moving party. The appellate court should indulge any legitimate inference favorable to the non-movant. Shoppers World v. Villarreal, 518 S.W.2d 913 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Hardware Mutual Casualty Company v. Brown, 390 S.W.2d 53 (Tex.Civ.App.—San Antonio 1965, writ ref’d n. r. e.); Leach v. Leach, 208 S.W.2d 618 (Tex.Civ.App.—Galveston 1948, writ ref’d n. r. e.); 3 McDonald Texas Civil Practice, § 11.28.2 (1970).

Reviewing the evidence most favorable toward the non-moving party CRM, we find from the record that CRM’s owner, Charles McGuire, testified that the dirt from, the street excavation was intended to be used for the leveling of the lots in case the dredge material settled. He stated that instead of this use, it was used to extend the peninsula areas out to the bulkheads which were installed by the general contractor. Vermillion agreed that the filling in at the end and at the edge of the peninsula areas from the waters’ edge to the bulkheads was something that was not called for in the overall contract that Vermillion had entered into with the owner. He stated that it was not considered by him in making his bid to the owner. It was Vermillion’s contentions that it was the dredger’s job to have built the peninsula areas to the proper dimensions. Vermillion stated that the plans and specifications did not call for the filling of up to eight to nine feet of water with dirt from the project site. It was undisputed that the lack of dirt at the end and the edge of the peninsula areas was not due to any settling, but was because there was insufficient dirt there to begin with.

McGuire testified that Mr. Vermillion told him that this additional dirt would have to be hauled in so that Vermillion could get its dragline out to the end of the peninsula area so as to build the bulkheads. When CRM objected, Vermillion told CRM to go ahead and haul the additional dirt and not to worry about it, that Vermillion would pay CRM for the additional work in addition to that which was required and called for under CRM’s cdntract. That the agreed price on the extra dirt would be CRM’s costs plus profit. McGuire testified that if he had not had such an agreement with Vermillion, he would not have done the extra work and that Vermillion would have been required to hire someone else and pay them for the additional work.

A Mr. Gene Graham, a licensed engineer working for CRM, testified that he was present at the discussions between Vermillion and McGuire in which Vermillion agreed with McGuire that the hauling of the dirt was not a part of CRM’s contract. Graham testified that at one of these meetings, Vermillion told McGuire “that somehow we would — should, or — or would be paid for it.”

Vermillion contends in its brief that the plans and specifications outlining the dirt work subcontracted shows that the amount of dirt that was encompassed in the contract included the extra dirt. On page 17 of the plans and specifications, there is this note: “Lots to be graded as shown. No separate payment for excavation or lot grading. The cost thereof shall be included in contract prices bid for the item of which this work is a component.” However, when we look at the evidence most favorable toward CRM, it shows that this provision pertained only to the dirt that might be necessary to bring the lots up to grade because of the settling of the dredge material. It was undisputed, and all the witnesses testified, that the lack of dirt at the end of the peninsula areas was not due to settling. It just had not been there in sufficient quantity to begin with.

It was clear that Vermillion’s promise to pay CRM extra compensation was not for the purpose of inducing CRM to do what it had already agreed and was bound to do, but was to get CRM to do something in addition that was not covered by its contract. We hold that there was ample evidence that would require the trial court to overrule Vermillion’s motion for instructed verdict.

There appears to be a further reason for overruling appellant’s first two points of error. The appellate courts have held that where a defendant moves for a directed verdict at the close of plaintiff’s evidence (as was the case here), and such motion is overruled by the trial court, the defendant by proceeding with the evidence waives his motion. Shoppers World v. Villarreal, supra; Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.); Jackson v. Jackson, 470 S.W.2d 276 (Tex.Civ.App.—Fort Worth 1971, writ ref’d n. r. e.); Edelstein v. Lehmann, 452 S.W.2d 49 (Tex.Civ.App.—San Antonio 1970, writ ref’d n. r. e.); Robb v. Gilmore, 302 S.W.2d 739 (Tex.Civ.App.—Fort Worth 1957, writ ref’d n. r. e.); 3 McDonald, Texas Civil Practice, § 11.-26 (1970). Appellant’s points of error 1 and 2 are overruled.

In appellant’s third point of error, it contends that the court erred in submitting special issues, or any of them, to the jury for the reason that the written contract between Vermillion Construction Company and CRM Contractors, Inc. was not vague or ambiguous as a matter of law.

The question of whether a contract is vague or ambiguous is one of law and not of fact. Ferguson v. von Seggern, 434 S.W.2d 380 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.); Davis v. Andrews, 361 S.W.2d 419 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.). If the contract is not clear and is subject to more than one construction, it is the duty of the trial court to submit that matter to the jury for their determination upon the testimony as produced by the parties. Trinity Universal Insurance Company v. Ponsford Brothers, 414 S.W.2d 16 (Tex.Civ.App.—El Paso 1967), 423 S.W.2d 571 (Tex.Sup.1968); 13 Tex.Jur.2d, Contracts § 110; 17A C.J.S. Contracts § 520.

The subject written contract, dated May 6, 1969, between Vermillion and CRM was basically a form contract with no specific provisions for job description. The contract refers to “exhibit A” which was CRM’s bid sheet showing only the quantities and prices of material and labor upon which CRM based its bid. The contract also makes reference to the plans and specifications generally. There was nothing in the contract with CRM which would indicate one way or the other that the hauling of dirt for the purpose of extending the fingers was within CRM’s contract with Vermillion.

In this case the intention of the parties as to what and how much dirt was to be hauled and where and for what purposes was unclear. It was necessary to obtain testimony from the parties so that their intentions could be ascertained. Since the contract was ambiguous, the issue as to its true meaning was one of fact for the jury. See Ellisor v. Kennedy, 128 S.W.2d 842 (Tex.Civ.App.—Galveston 1939, writ ref’d). Appellant’s point of error 3 is overruled.

Vermillion’s last two points of error concern only the damages awarded to CRM. Vermillion in its forth point of error complains that the jury’s finding of $18,093.00 is grossly excessive because there is no evidence that Vermillion agreed to pay or. was responsible “for any amount in excess of $10,856.00.” In its fifth point, Vermillion asserts it is not liable for $7,237.00 (difference between $18,093.00 and $10,856.00) because the undisputed evidence shows that Vermillion did not cause the loss of the excess of $7,237.00 by CRM, but such loss was caused by the actions of Canoe Lake Corporation.

Appellant bases its complaint on the wording used in CRM’s invoice. In that invoice, prepared by Gene Graham, the engineer associated with CRM on the Harbor Oaks project, it was stated that approximately of their costs for the extra work ($7,237.00) was due to:

“(a) The closest and best material in the Borrow Source should have been available to us but was going to bridge contractor.
(b) Denial of other parts of borrow source.
(c) Lack of cooperation of owner to permit use of other available borrow sources.”

Be that as it may, the evidence was sufficient to support the jury’s verdict that $18,-093.00 was the reasonable value of the work performed by CRM in hauling the additional dirt.

In CRM’s invoice to Vermillion, CRM calculates the price for the extra work. Mr. Graham calculated the total cost of hauling dirt during the six weeks period in question as being $28,319.00. He attributed one third of this total cost, $9,440.00, to the work involved in extending the peninsula area and then added 15% profit to arrive at a total of $10,856.00. Appellant does not make any complaints as to this amount. He then calculated that an additional Vs of the remaining cost should also be attributed to extra work because Vermillion’s requirement that the dirt from the excavation of the streets be used to fill and lengthen the peninsula area created the dirt shortage. Such shortage occurred to CRM because CRM had depended on using the dirt from the street excavation for leveling and bringing the lots up the required elevation. It was agreed that the dirt from the street would be sufficient to take care of any settling that might occur. This dirt from the street excavation was also very close to the lots, thus requiring very little hauling. Once this dirt was gone (after being put on end of peninsula area), CRM was forced to obtain dirt elsewhere at a greater expense. Mr. Graham calculated this additional cost to be $6,283,00, added a profit of $944.00 amounting to $7,237.00 and when combined with the $10,856.00 results in a total cost of additional dirt work of $18,093.00. By Vermillion’s request that CRM use the dirt from the street excavations for the purpose of extending the fingers, Vermillion caused the problem and the extra expense CRM was faced with in finding additional dirt to be used for leveling the lots. In the process of doing the additional work, CRM had to make longer hauls in order to obtain the additional dirt. This caused their overhead and other expenses to increase. This was still the work which Vermillion had agreed to pay for on the basis of CRM’s cost plus profit.

After considering all the evidence, we hold that there was ample evidence before the jury which would support the jury’s finding that the reasonable value of CRM’s work in hauling the additional dirt was $18,093.00 and that Vermillion was responsible for the $7,237.00 included in that figure. Appellant’s points of error 4 and 5 are overruled.

Fidelity & Deposit Company of Maryland (as cross-appellant) bring forward one point of error. However, in its brief, Fidelity says:

“Cross-appellant Fidelity & Deposit Company of Maryland is content with the judgment entered by the trial court. Its appeal is conditioned in nature. It seeks relief here only in the event that this court reverses the judgment of the trial court at the instance of appellant Vermillion Construction Company and remands the case for further proceedings.”

In view of the disposition of this case, it is unnecessary to pass upon the cross-appellant’s point of error.

The judgment of the trial court is affirmed.


text:
    Anita GARCIA et al., Appellants, v. CLIFFORD JACKSON FUNERAL HOMES, Appellee.
    No. 983.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.

      Pedro P. Garcia, Corpus Christi, for appellants.
    Cecil D. Redford, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lee.
   OPINION

NYE, Chief Justice.

This is a suit for damages arising from the death of Marion Garcia. The deceased’s wife and children brought suit for damages alleging that certain acts of negligence by the appellee, Clifford Jackson Funeral Home, were the proximate cause of Marion Garcia’s death. Judgment was rendered pursuant to an instructed verdict in favor of defendant. From that judgment, the appellants have duly perfected their appeal to this Court.

The facts of this case, with a few exceptions, do not appear to be in dispute. The deceased, Marion Garcia, became ill at about 7:30 o’clock P.M. on the evening of September 9, 1969, complaining of chest pains and shortness of breath. The deceased’s wife, Anita Garcia, called the An-gelus Funeral Home requesting that an ambulance be sent to their home. She then called her family doctor, Dr. Fuentes, telling him that her husband was experiencing pain in his chest and shortness of breath. Upon hearing that Mrs. Garcia had already called an ambulance, Dr. Fuentes told her that he would go to the hospital and wait for them there.

Mrs. Garcia then received a call back from a Mrs. Capela (of Angelus Funeral Home) telling her that they had transferred the call to Clifford Jackson Funeral Home because their ambulance was not equipped with oxygen. The deceased’s daughter, Mrs. Huckeba, had arrived home by this time. Upon seeing that her father was having difficulty in breathing, she applied mouth to mouth resuscitation to aid his breathing.

After attending to her father, and upon becoming alarmed that the ambulance had not yet arrived, Mrs. Huckeba telephoned the police station telling them that the ambulance had been called (Clifford Jackson) but had not yet arrived. Two police officers arrived a few minutes later, the time being approximately 8:32 P.M., to assist the Clifford Jackson ambulance attendants who had not yet arrived. According to Mrs. Huckeba, the ambulance arrived ten or twelve minutes later. The police officer testified that when they arrived, Mr.- Garcia was unconscious.

After the ambulance arrived, the two attendants attempted to give Mr. Garcia oxygen, but were unable to do so. There is conflicting evidence as to the reason for it not being used, the appellants contend that the resuscitator was not in proper working order and the attendants did not know how to use it. A manual hand resuscitator was used on the deceased either at home or on the way to the hospital. The two ambulance attendants and one of the police officers, loaded Mr. Garcia into the ambulance and took him to the hospital. Mr. Garcia received mouth to mouth resuscitation and heart massage in the ambulance. .

The evidence shows, although conflicting, that the Clifford Jackson ambulance did not take the most direct route to the Garcia home, nor the most direct route from the Garcia home to the hospital, thus allegedly losing valuable time in obtaining medical aid for Mr. Garcia. Mr. Garcia was pronounced dead upon arrival at Memorial Hospital by Dr. Antonio Fuentes. The record discloses that Marion Garcia had received a check-up by Dr. Fuentes on September 8, 1969, the day before his death. Dr. Fuentes testified that during the checkup, Mr. Garcia’s heart “sounded normal” although Ms bleed pressure appeared to be high.

The appellants filed this suit against Clifford Jackson Funeral Home alleging several acts of negligence. They were: 1) the failure of the Clifford Jackson ambulance to take the best route to Marion Garcia’s home; 2) failure of the defendant to take the best direct route from Marion Garcia’s home to the hospital; 3) the negligence of the defendant in not properly administering oxygen to Marion Garcia; and 4) the failure of the appellee to render first aid and oxygen treatment. To these allegations, the defendant filed a general denial.

At the conclusion of plaintiff’s evidence, the defendant filed a motion for instructed verdict alleging that no act of negligence alleged by the plaintiffs had been proved to be a proximate cause of the death of Mr. Garcia and hence, there was no issue of proximate cause to be submitted to the jury. The trial court granted the defendant’s motion for instructed verdict and rendered judgment for defendant. From that judgment, the appellants have duly perfected their appeal.

The sole question before us then is directed to the trial court’s instruction of a verdict for the defendant. Appellants contend there was sufficient evidence with respect to proximate cause, which would require the trial court to submit issues to the jury. A proper determination of that question must hinge on an acceptance of the evidence and the inferences therefrom in their aspects most favorable to the appellants’ cause and to discard all contrary evidence and inferences. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Bass v. General Motors Corporation, 491 S.W.2d 941 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); McKethan v. McKethan, 477 S.W.2d 357 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.).

Applying the above rule, it is clear to us that the appellants did raise fact issues as to whether the alleged acts by appellee of: 1) not taking a direct route to the deceased’s home; 2) not taking a direct route from the deceased’s home to the hospital; and 3) failing to properly apply the oxygen to the deceased, were negligent. However, the main question before us is whether there was any evidence to support an issue of proximate cause to such issues. We do not believe there was.

The proof that must be made to establish causal relation is easily stated in general terms, but it is often difficult to determine whether a sufficient showing has been made to warrant submission of the issue to the jury. Since liability cannot be made to turn upon speculation or conjecture, it is essential that the evidence show at least a reasonable probability that the defendant’s alleged negligent acts were, singularly or collectively, a proximate cause of his death. Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.Sup.1966); Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703 (Tex.Sup.1970); Parker v. Employers Mutual Liability Insurance Company of Wisconsin, 440 S.W.2d 43 (Tex.Sup.1969). The proof must establish a causal connection beyond the point of conjecture and must show more than a possibility.

In Insurance Company of North America v. Myers case, the substance of the doctor’s testimony concerning causation was that it was only a possibility that the injury which was incurred, caused the death, not that it was or was not a reasonable medical probability. In denying recovery, the Supreme Court held:

“Causal connection . . . must rest in reasonable probabilities; otherwise, the inference that such actually did occur can be no more than speculation and conjecture.”

The only evidence introduced attempting to connect the alleged negligent acts of defendant with Mr. Garcia’s death, was the testimony from Dr. Fuentes which is set out as follows:

“Q Okay. Let me ask you this, Doctor. If she had gotten the man to the hospital earlier, and he was alive, if they had got the man to the hospital earlier, would you have been able to work with the man to save his life? And I need to have you answer in terms of medical probability, please, if you can?
A Time is very important, I’m sure as you-all know, with heart attack. Something could have probably been done, or, as it was, nothing was done when he got to the emergency room.
Q Supposing the patient had been taken to the emergency room before you got there, from your experience, working in Memorial Hospital, was the medical staff there equipped and trained to help the man?
A Yes. There are emergency room physicians now and there were at the time. I’m sure there were the interns and residents in the emergency room, and a doctor on call.
* * * ⅜ * *
Q If the ambulance attendants — well, I’m going to ask you to assume, Doctor, if I may, that no oxygen was given to him at the house when the attendants got there. If they had been able to give him oxygen there at the house, would that have helped the man?
A Yes. That’s the first thing that most of the ambulance attendants will do, is give oxygen, and that’s the first thing that is done in the emergency room.”

This testimony at most shows that if Marion Garcia had gotten to the hospital sooner than he did, “something could have probably been done . . .”, and that oxygen would have helped the man.” However, there is no evidence showing that the alleged negligent acts of defendant “in reasonable probability” caused Garcia’s death. The .testimony in the record is not sufficient to show causation or raise an issue of fact as to causation. See Insurance Company of North America v. Myers, supra; Lenger v. Physicians General Hospital, Inc., supra; Parker v. Employers Mutual Liability Insurance Company of Wisconsin, supra; Gibson v. Avery, 463 S.W.2d 277 (Tex.Civ.App.—Fort Worth 1971, no writ); Texas Employers Insurance Association v. Goodeaux, 478 S.W.2d 865 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.).

In Parker v. Employers Mutual Liability Insurance Company of Wisconsin, supra, the court was faced with a similar situation to that before us. There, plaintiff went to work in April, 1961, removing radioactive material from one spot to another. He wore protective clothing. In April, 1965, he noticed a swelling on the left side of Ms neck which when removed in June of 1965, proved to be cancerous and he subsequently died. Justice Hamilton, speaking for the court, wrote:

“The question now before us, then, is what evidence of causal connection between the employment and the plaintiff’s injury there must be to justify the judge submitting the case to the jury.
But this probability must, in equity and justice, be more than coincidence before there can be deemed sufficient proof for the plaintiff to go to the jury.”

The expert testimony in that case was to the effect that the etiology (cause) of cancer is really uncertain. The doctor further testified that the cancer “could have” been caused by radiation, but that there was no way to determine the cause. Our Supreme Court in denying recovery held that it was clear that there was no evidence at trial of a causal connection between the cancer and radiation in the expert testimony per se, other than the possibility of such a connection and testimony demonstrating a possibility only is in no way equivalent to testimony implicit with probability.

It was undisputed that Mr. Garcia’s death was caused by a myocardial infarction. In order for the plaintiffs to have made out a case against the appellee that would have permitted them to go to the jury, they would have had to have some evidence that the acts of negligence, on the part of appel-lee, were a proximate cause of Garcia’s death. There must be proof that the negligent acts were a proximate cause, not a possible cause. Plaintiffs’ evidence showed no more than a possibility that the claimed negligent acts caused Mr. Garcia’s death. Although Dr. Fuentes testified that something could have been done, there was no evidence of what that (“something”) might have been or what the probable results would have been. There was no evidence that had the ambulance arrived earlier, or that had oxygen been administered properly, Garcia would have lived. There was no evidence as to the exact time of Mr. Garcia’s death. We, therefore, hold that there was no causal connection between the ap-pellee’s negligence and Garcia’s death in the record before us. Appellants’ points of error are overruled.

The judgment of the trial court is affirmed.


text:
    C. K. McCAN, Jr., et al., Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
    No. 987.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.

      Joseph P. Kelly, Victoria, for appellants.
    James N. Stofer, Victoria, for appellee.
   OPINION

NYE, Chief Justice.

This is an appeal from an order granting a temporary injunction. Plaintiff Missouri Pacific Railroad Company sought injunctive relief against the defendants, seeking the use of two specific tracts of land, belonging to defendants, for salvage and rebuilding operations of their trestle and derailed railroad cars, and further seeking to restrain defendants from interfering with the Railroad’s use of defendants’ land while such salvage and rebuilding operations were in progress. The trial court granted a prohibitory injunction, and other relief. The injunction expired fifteen days later by its own terms. The defendants have perfected their appeal from the orders of the trial court.

The plaintiff Missouri Pacific Railroad Company (hereafter referred to as Railroad) operated a main line which runs from Houston to Brownsville, Texas, which crosses Victoria County and other surrounding areas. The line runs across the defendants’ ranch (called the McFaddin Ranch) on which the Railroad has a one hundred (100) foot right-of-way, fifty feet on each side of the center line of the railroad trades.

On March 19,1975, at approximately 5:45 o’clock p. m., a bridge located over the Guadalupe River on the defendants’ ranch collapsed resulting in the derailment of eighteen of the Railroad’s approximately 123 freight cars. The train had originated in Houston and was going to Brownsville, Texas.

According to the testimony of the engineer of the freight train in question, he noticed a small amount of smoke coming up between the ties near the south end of the bridge as his train approached the bridge. As he got more or less directly over the area where the smoke was rising, he saw a fire and small flames down below the ledge of the deck of the bridge. The engineer radioed to the caboose, informing the crew of what he had discovered.

The engineer decided to continue his train on south, as he was already over the fire, and pull the rear end of the train just south and past the fire, and stop the train so that the crew members on the rear of the train could extinguish the fire. After proceeding forward, the engineer stopped too soon leaving two cars, the caboose and the car next to the caboose, still over the bridge where the fire was.

The crew in the caboose notified the engineer of the position of the last two cars. The engineer then attempted to take up slack and proceed on south far enough so that the caboose would clear the bridge and the fire. Because the train was on an ascending grade and because of the tonnage he had in his train, the engineer was unable to make the train go forward. The engineer then decided that he would make a reverse movement, or back the train approximately half of the train length and then make a run at the ascending grade. When the engineer backed up the train, it was necessary to come to a stop before again proceeding forward. This made necessary the application of the air brakes on the train. There was some two to three minutes delay in the brakes releasing on all of the cars before the engineer could start a south forward movement again. When the engineer attempted to move forward, the air hose, that is used to connect each freight car to the braking system, on one of the cars sitting on the bridge, caught fire and melted, causing an air leak resulting in the brakes locking on the entire train. The train in this condition was unable to move either forward or backward.

Covering the bridge at that time were some eighteen railroad hopper cars located approximately in the middle of the train. The fire got worse to the point that the bridge collapsed causing the eighteen railroad hopper cars to fall to the side of the collapsed bridge. All the railroad cars landed within the plaintiff’s right-of-way area. Salvage operations were begun almost immediately thereafter by the Railroad.

It was determined by the Railroad that salvage of the hopper cars and the repair of the bridge could be done more expeditiously by the use of defendants’ land adjacent to the bridge area. The Railroad then attempted to get permission from defendants for the use of a certain amount of defendants’ land in order to get salvage and bridge building equipment to the derailment scene. During the negotiations, the defendants agreed to the Railroad’s use of defendants’ land and roads but only if the Railroad would agree to certain conditions, those being: 1) to pay all back claims for damages that the defendants had against Railroad (this was for cattle that were killed on the railroad right-of-way); 2) rebuild the fences along both sides of the Railroad’s right-of-way, which consisted of approximately ten to twelve miles on each side; and 8) agree to build a spur track called for in an original right-of-way agreement. The Railroad refused and began salvage operations anyway which included moving the derailed cars off the Railroad’s right-of-way onto the defendants’ land. This was done, according to the testimony, so that the repairs to the bridge could be done in a more efficient and convenient manner.

Shortly thereafter, on March 20, 1975, some of defendants’ employees approached the salvage and rebuilding site and instructed the Railroad’s employees to get off and stay off their property, and to remove their cars, scrap rail and tracks off the defendants’ property and back onto their own right-of-way. Defendants’ employees ordered the Railroad’s employees not to come on their property again. The defendants’ employees were armed with guns at that time.

The next day, the Railroad sought injunc-tive relief seeking court permission to use two tracts of land belonging to defendants for their salvage and rebuilding operations. Additionally, the Railroad sought a temporary restraining order, restraining defendants from interfering with the Railroad’s salvage and rebuilding operations. The two tracts of land requested by the Railroad were a 400' by 100' area immediately west of the Railroad’s bridge and right-of-way and a 600' by 30' area immediately south of the property. Both of the tracts are located on the McFaddin Ranch, defendants’ property. The trial court granted the temporary restraining order on March 21,1975, to be effective until March 26, 1975, at which time a hearing was set for defendants to show cause, if any, why a temporary injunction should not issue against them.

On March 81, 1975, after an evidentiary hearing, an order granting an injunction was entered by the trial court. The order enjoined and restrained the defendants from interfering with the Railroad’s salvage and rebuilding operations and it granted to the Railroad the use of defendants’ property for such operation. The injunction was to expire by its own terms on April 12, 1975, at midnight. In addition to the injunctive relief ordered, the trial court ordered the Railroad to pay to defendants the sum of $2,200.00 for all back claims for cattle killed by the Railroad on its right-of-way through the McFaddin Ranch. The trial court further ordered that a commission be appointed to assess damages, if any, to the surface of defendants’ land and ordered the Railroad to pay the sum so assessed by the commissioners as damages, if any, to the defendants. From that judgment, defendants have perfected their appeal to this Court.

The defendants bring forward three points of error on appeal. Since all these points are concerned with the issuance of the injunction, they will be discussed together. Defendants’ points are as follows:

Point No. 1
The order appealed from was clearly erroneous and was an abuse of and actually outside the power and jurisdiction of the court, because the railroad’s pleadings not only revealed no right whatsoever to use defendants’ property, but showed that it was seeking to obtain the use of private property in a manner contrary to the constitution and statutes of this State.
Point No. 2
The order appealed from was clearly erroneous and an abuse of discretion, because the railroad’s pleadings showed that it was attempting to obtain complete relief by the injunctive process and to destroy rather than preserve the status quo existing at the time.
Point No. 3
The order appealed from was clearly erroneous, and an abuse of discretion and was void, because the railroad’s pleadings showed that defendants were in peaceable, rightful possession of their own property, and the effect of the order was to transfer the possession and use of it to the railroad.

The general rule of law in Texas is that a trial court is clothed with broad discretion in determining whether to issue, or not, a temporary injunction to preserve the rights of the parties pending a final trial of the case. When that discretion is exercised, it should not be overturned on appeal unless the record discloses a clear abuse of discretion. Texas Foundries, Inc. v. International Moulders & Foundry Workers' Union, 151 Tex. 239, 248 S.W.2d 460 (1952); Long v. Castaneda, 475 S.W.2d 578 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); Turner v. Cook, 502 S.W.2d 824 (Tex.Civ.App.—Corpus Christi 1973, no writ); City of Waco v. Earhart, 511 S.W.2d 549 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.). The right threatened and sought to be protected by injunction must be an existing one; it must be vested in the applicant; and it must be a legally cognizable and justiciable right or interest. 31 Tex.Jur.2d, Injunctions § 19 (1962); Garland v. Shepherd, 445 S.W.2d 602 (Tex.Civ.App.—Dallas 1969, no writ); Hammon v. Wichita County, 290 S.W.2d 545 (Tex.Civ.App.—Fort Worth 1956, no writ).

The Railroad had no right to enter upon and use the land belonging to the defendants outside of the Railroad’s right-of-way, other than any rights they could acquire under Articles 6336 and 6337. Tex.Rev.Civ. StatAnn. Article 6336 provides for condemnation procedures to be exercised by the Railroad if the landowner and Railroad are unable to agree to terms for the purchase of real estate or materials thereon. Article 6337 provides:

“No railroad company shall enter upon, except for a lineal survey, any real estate whatever, the same being private property, for the purpose of taking and condemning the same, or any material thereon, for any purpose whatever, until the said company shall agree with and pay the owner thereof all damages that may be caused to the lands and property of said owner by the condemnation of said real estate and property, and by the construction of such road.” (Emphasis supplied.)

Since the Railroad plead no vested right belonging to it, did not seek condemnation, did not offer to pay defendants all damages caused to their land, and did not attempt to show a right to any equitable relief through the injunctive process, the trial court’s order was erroneous and as such was an abuse of discretion.

In Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, our Supreme Court said:

“In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits.”

The purpose of a temporary injunction is to preserve or maintain the status quo in regard to the matter in controversy and not to determine the respective rights of the parties under the cause of action asserted or defenses or counterclaims urged. Transport Co. of Texas v. Robertson Transports, Inc., supra; Bedford v. Plum, 497 S.W.2d 584 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.); Nicholson v. National Motor Club of Texas, Inc., 498 S.W.2d 264 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.); Langford v. Kraft, 498 S.W.2d 42 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.).

The status quo to be preserved by a temporary injunction is the last actual, peaceable noneontested status which precedes the pending controversy. Bedford v. Plum, supra; Langford v. Kraft, supra; Brady v. Servisoft, Inc., 338 S.W.2d 189 (Tex.Civ.App.—San Antonio 1960, writ ref’d n. r. e.); Whitaker v. Wilson, 349 S.W.2d 753 (Tex.Civ.App.—Houston 1961, writ ref’d n. r. e.). See also Lowe & Archer, Injunctions and Other Extraordinary Proceedings, Sections 327, 328 (1957). Obviously, that last peaceable, noneontested status of the parties was that time prior to the Railroad’s moving their derailed railroad cars and heavy equipment off their right-of-way onto the defendants’ property.

It is clear that the short termed injunction entered by the trial court on March 31, 1975, extending the temporary restraining order of March 21,1975, did not in any way purport to preserve the status quo between the parties. Its effect was to ultimately decide and impose a right of possession of defendants’ property in the hands of the Railroad without condemnation or other legal means. The court’s order in the case at bar attempted to answer all of the ultimate issues as to the parties’ rights without compliance with the law for such cases. Complete relief was afforded to the Railroad. This was clearly shown by the record. The court was without authority to divest the defendants of their property rights without a proper trial on the merits and its attempt to do so was void. See James v. E. Weinstein & Sons, 12 S.W.2d 959 (Tex.Comm’n App.1929, holding approved). See also Taylor v. Cameron County Fresh Water Supply District Number One, 361 S.W.2d 476 (Tex.Civ.App.—San Antonio 1962, no writ); Galveston & W. Ry. Co. v. City of Galveston, 137 S.W. 724 (Tex.Civ.App.—Galveston 1911, no writ); Lowe, Injunctions and Other Extraordinary Proceedings. It is equally well settled that a temporary injunction will be dissolved if it is based upon an erroneous application of the law to the facts. Dallas General Drivers, etc. v. Wamix, Inc., of Dallas, 156 Tex. 408, 295 S.W.2d 873 (1956).

There appears to be a further reason why the injunctive relief that was granted to the Railroad was improper. The record shows that the need for the use of defendants’ land was primarily for convenience sake, rather than for a real necessity or for prevention of an irreparable injury. Mr. Leon Miller, assistant general manager of plaintiff, Missouri Pacific Railroad Company, testified that it would take about three days to a week longer in restoring service if they were not permitted the use of defendants’ property (outside their right-of-way). He admitted that he did not know of any loss of contracts due to the disruption of service. With respect to the service being disrupted over its main line, Mr. Miller stated that his Railroad had made arrangements with the Southern Pacific Railroad Company which would allow their trains to detour over Southern Pacific’s line from either Sinton or Placedo, Texas. After reviewing all of the evidence, it does not appear that the Railroad would have suffered irreparable injuries and damages as would in any respect require immediate action by the trial court in granting the Railroad the use of defendants’ property.

The defendants further attack the validity of the court’s order with respect to certain extra orders within the decree that were issued in addition to the injunction. On March 28,1975, at the evidentiary hearing before the trial court on the Railroad’s application for temporary injunction and after presentation of all of the evidence, the trial court granted the injunction. In addition, the trial court went further and ordered the Railroad to pay to the defendants the sum of $2,200.09, for certain back claims (completely unrelated to the injunctive matter), and further, appointed commissioners to assess damages to defendants’ land occasioned by the Railroad’s use thereof. The court ordered the Railroad to pay the defendants the sum of money so assessed by the commissioners. There is no basis that we know of that would permit the trial court to enter such orders. After reviewing the pleadings we find that neither party pled for such relief nor requested the same. Even the Railroad joins with the defendants in attacking that portion of the order granting the defendants judgment for $2,200.00 for back claims and the appointment of commissioners. Both parties agree that there were no pleadings to support such an order.

It is well settled law that a court may not grant relief not supported by pleadings or prayer. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130 (Tex.Comm’n App. 1942, opinion adopted); Board of Firemen’s Relief and Retirement Fund Trustees of Harris County v. Stevens, 372 S.W.2d 572 (Tex.Civ.App.—Houston 1963, no writ); 34 Tex.Jur„2d, Judgments § 319 (1962). Here, the relief requested by the Railroad was strictly limited to an injunction. The defendants in their answer to the requested injunctive relief did not ask that damages be assessed nor did they make any request that a commission be set up to ascertain their damages, if any.

The defendants’ points of error are sustained. The temporary injunction is dissolved. All other relief granted by the trial court is set aside. Costs are adjudged against the Railroad.

The judgment of the trial court is reversed and rendered.