author: DIES, Chief Justice. KEITH, Justice,

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Elenor G. THOMAS et al., Appellees.
    No. 8169.
    Court of Civil Appeals of Texas, Beaumont.
    March 8, 1979.
    Motion for Rehearing Overruled March 29, 1979.

      C. S. Pipkin, John G. Bissell, Beaumont, for appellant.
    Alto V. Watson, Kaye Sexton, Beaumont, for appellees.
   DIES, Chief Justice.

On the night of November 25,1975, Mary Ann Leger was driving on FM 1006 in Orange County, Texas. In the car as her passenger was her sister, Helen Thomas. Near the DuPont plant, two tracks of the Missouri Pacific Railroad Company (Railroad) cross this road. A train was occupying one of these crossings slowly backing south into the DuPont plant when the car driven by Mary Ann Leger drove into and under a tank car of the train, killing both ladies.

Plaintiffs, Elenor G. Thomas, the surviving mother of decedents; and David Leger, Charles Leger, and Paula Davis Bowsher, the surviving children of the deceased driver, Mary Ann Leger, brought a wrongful death action against the Railroad, defendant below. Trial was to a jury which found the Railroad 55 percent negligent and Mary Ann Leger 45 percent negligent. A judgment was given plaintiffs for $65,675 from which Railroad brings this appeal.

Railroad urges that the jury’s finding, that the conditions surrounding the crossing in question were such as to render the crossing more than ordinarily dangerous as a nighttime crossing, is supported by no or insufficient evidence or is against the great weight and preponderance of the evidence.

In passing on the no evidence point, we consider only the evidence and inferences therefrom which tend to support the verdict and disregard all evidence and inferences to the contrary, Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). A contention that the evidence is insufficient or against the great weight and preponderance of the evidence directs us to all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

When the resident engineer of the Texas Highway Department was on the stand he was asked by the Railroad’s attorney:

“Q. Tell me what conclusions the Highway Department reached concerning accidents and whether or not motorists were heeding the red light signal that lead [sic] it to believe that these lights were necessary over the crossing?
“A. As to why the recommendation for the lights was made?
“Q. Uh-huh.
“A. Well, I have a cover letter that I would like to read that would stand justifying that, if you would like.
“Q. Okay.
“A. ... It says, ‘An analysis of accidents that occurred’ — this was dated January 7,1976. ‘An analysis of accidents that occurred at the caption railroad crossing has been conducted and we feel that the severity of these accidents indicates the need for additional safety improvement. There are two crossings within 875 feet of each other and four accidents have been recorded in the period from 12-15-72 to 12-15 — 75. Two of these accidents were at night and involved three fatalities. The accident records are not specific in the showing which crossing each accident occurred, but this is of no consequence as the proximity of the crossings allows the location to be treated as a single crossing. Existing protecting devices consist of overhead flashing lights and warning bell at each crossing. The installation of flashing advance warning signs in accordance with the DHPT standard AWSRR 75, interconnected to allow activation by rail traffic on either crossing is proposed. In addition, due to the 50% nighttime accident occurrences, we propose to install safety lighting consisting of four, 400 watt mercury vapor illuminators, each mounted on forty foot wood poles.
‘Wood poles can be safely used in this instance by locating illuminator assembly behind exiting metal beam guard fence rail . . . .’
“Q. I don’t know that that letter actually sheds much light on why they reached that conclusion, although it particularly sets it out isn’t it true that the reason this became necessary is because some motorists, apparently few in number, with four accidents over a rather extended period of time, don’t heed the red flashing light warning?
“A. Well, I think because we had the number of accidents we did, we felt that something else should be put up there in order to better illuminate the situation . . . make it where it could be seen better.”

He also was asked by Railroad counsel, “Have you had any accidents at this crossing, that you are aware of, since these lights were put in?” To which he responded: “Not to my knowledge.”

This document shows prior accidents at the DuPont crossing, which is evidence to support a finding of extra hazardous crossing. In Missouri Pacific Railroad Company v. Cooper, 563 S.W.2d 233 (Tex.1978), the court held that witnesses testifying as to previous crossing accidents were not qualified because of lack of knowledge of similarity. Since the witnesses had shown no knowledge of similarity in their testimony, the case was rendered, implying that if this could have been “corrected,” the case would have been remanded on the issue of extra hazardous crossing. (Id. 238). See also Karr v. Panhandle & Santa Fe Ry. Co., 153 Tex. 25, 262 S.W.2d 925, 932 (1953). “It is noteworthy that there was no testimony whatever that anybody had suffered any accident or near-accident at the crossing under similar conditions prior to the night in question, as there was in the Long case, supra.”

And in Missouri K. & T. RR. Co. v. Long, 23 S.W.2d 401, 402 (Tex.Civ.App.—Austin 1929, writ ref’d), the court held that evidence of prior accidents or near accidents was proper “[i]n determining whether the crossing was unusually dangerous or hazardous as a nighttime crossing at the time of the accident” and “[i]n determining whether appellant [Railroad] knew, or in the exercise of ordinary care should have known, of the alleged unusually dangerous or hazardous conditions surrounding the crossing at the time of the accident.”

We hold that the evidence produced by the Railroad of the prior accidents together with the unobjected to testimony of the highway engineer was sufficient evidence to support the jury finding challenged and thus overrule these points.

Some eight witnesses testified concerning prior accidents at this crossing. Appellant Railroad urges that the proper predicate was not laid for this testimony. Cooper, supra at 236 says:

“The plaintiffs’ were required to show that the earlier accidents occurred under reasonably similar but not necessarily identical circumstances.”

Undoubtedly some of these points would be good had not the Railroad itself put in evidence earlier the document set out above, which contains the same prior accidents the witnesses allude to.

In Tex.Jur.2d Evidence .§ 208 (1961) we find:

“. . .a party is ordinarily estopped to complain of evidence presented by his adversary if he himself has previously introduced either the same evidence or evidence of a similar character.”

See Blakney v. Panhandle & Santa Fe Ry. Co., 381 S.W.2d 143 (Tex.Civ.App.—El Paso 1964, writ ref’d n. r. e.), where appellant tried to complain of testimony of appellee’s witnesses where testimony of appellant’s witness and introduction of diagram by appellant were substantially the same. These points are overruled.

Even though plaintiff’s evidence of the subsequent lights installed by the highway department went in evidence without objection and despite the fact the same evidence, as well as the prior collisions, was put in evidence by the Railroad in the highway document set out above, we yet must determine if this evidence is hearsay, for hearsay evidence cannot support a judgment. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628 (1941); Hughes v. State, 508 S.W.2d 167 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Gulf St. Pipeline v. Orange County Water Control & Improvement Dist. No. 1, 526 S.W.2d 724 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.).

Tex.Rev.Civ.Stat.Ann. art. 3737e (Vernon Supp.1978) in part reads:

“Sect. 2. The identity and mode of preparation of the memorandum or record in accordance with the provisions of paragraph one (1) may be proved by the testimony of the entrant, custodian or other qualified witness even though he may not have personal knowledge as to the various items or contents of such memorandum or record. Such lack of personal knowledge may be shown to affect the weight and credibility of the memorandum or record but shall not affect its admissibility.” (Emphasis supplied).

2 C. McCormick & R. Ray, Texas Law of Evidence § 1258 at 127—128 (Texas Practice 2d ed. 1956):

“It is not necessary that the authenticating witness be the maker of the record. He need not have personal knowledge that the record corresponds to the event. . . .. Indeed, a witness should be allowed to testify to the ‘identity and mode of preparation’ of the record without ever having read it.”

See Stillman v. United States, 177 F.2d 607, 618 (9th Cir. 1949); 2 C. McCormick & R. Ray, Texas Law of Evidence § 1261 (Texas Practice 2d ed. 1956), “. . . the record of any sort of ‘act, event or condition’ may qualify for admission.” The United States Department of Agriculture, Soil Conservation Service is “business” within the meaning of this article. Kaufman Northwest, Inc. v. Bi-Stone Fuel Co., 529 S.W.2d 281 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.).

Bond, the Orange resident engineer, testified he had custody of the records covering the Orange County area; that the traffic department actually conducted the investigation of the crossing, but he (Bond) “discussed it with our traffic engineer.” He was asked by the Railroad’s attorney, “Do your records reflect that all of that was done?” To which he responded, “Correct.” He also testified he was personally acquainted with the crossing involved. See Gasperson v. Christie, Mitchell & Mitchell Company, 418 S.W.2d 345, 358 (Tex.Civ.App.—Fort Worth 1967, writ ref’d n. r. e.), holding admissible a memorandum by an authorized agent of defendants to the effect that one of the plaintiffs was to attempt to renew certain oil and gas leases without any consideration to plaintiffs other than to carry them for their override.

As stated above, this information was introduced by the Railroad. The case of Mew v. J. & C. Galleries, Inc., 554 S.W.2d 249 (Tex.Civ.App.—Dallas, 1977), writ ref’d n. r. e. per curiam, Tex., 564 S.W.2d 377 (1978), is particularly in point. There insured stated he had no objection to the admission of certain exhibits consisting of computer printouts of stolen property, then later contended they were hearsay based on asserted failure of plaintiff to show that the printouts satisfied the prerequisites of Tex.Rev.Giv.Stat.Ann. art. 3737e (Vernon Supp.1978). The court said:

“We conclude that defendants have waived any complaint based on lack of the predicate required by Article 3737e. To allow defendant’s counsel to state specifically that he has no objection to the admission of these exhibits and then later complain of plaintiff’s failure to lay a proper predicate would permit a party to benefit from error for which his counsel is, in part, responsible due to his affirmative acts. Cf. Cherry v. State, 546 S.W.2d 922, 923 (Tex.Civ.App.—Dallas 1977, writ ref.) (a party cannot complain of responsive answers to a question which he propounds). Counsel’s statement that he had no objection to the admissions of the exhibits is, in effect, an agreement that the proper predicate need not be presented. Loper v. Andrews, 395 S.W.2d 873, 875 (Tex.Civ.App.—Waco 1965), aff’d on other grounds, 404 S.W.2d 300 (Tex.1966); Missouri Pacific Railroad v. Watson, 346 S.W.2d 640, 641 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.) (per Pope, J.); see Buchanan v. American Nat’l Ins. Co., 446 S.W.2d 384, 387 (Tex.Civ.App.—El Paso 1969, writ ref’d n. r. e.). . To hold otherwise would lull the proponent of the exhibits into believing that no further predicate was necessary even though he could lay predicate in compliance with this statute.” (554 S.W.2d 251).

See Cherry v. State, 546 S.W.2d 922, 923 (Tex.Civ.App.—Dallas 1977, writ ref’d):

“. . . appellant cannot complain of responsive answers to questions which he asked the witness on cross-examination. Pullman Co. v. Vanderhoeven, 48 Tex.Civ. App. 414, 107 S.W. 147, 150 (1908, writ ref’d). A party is not permitted to ask questions, and then upon receiving responsive answers unfavorable to his cause, have the answers stricken from the record.”

See also, Colburn v. State, 501 S.W.2d 680, 681 (Tex.Cr.App.1973):

“The condition of probation required the appellant to report to the probation officer monthly. The probation officer, while testifying concerning the appellant’s failure to report, used an index card on which had been recorded the dates the appellant had reported. The card was sectioned off to indicate a space for each month of the year. He testified that when the appellant failed to report no notation was made on the appropriate section of the card. This record indicated that the appellant had failed to report a number of times. The appellant’s chief complaint is that a proper predicate was not laid for the admission of the card as a business record under the provisions of Article 3737e Vernon’s Ann.Civ.St. We need not determine this matter as the record reflects the appellant’s counsel offered the card in evidence. He may not complain of the admission of evidence which he himself offered.” (Emphasis supplied).

Also see Loper v. Andrews, 404 S.W.2d 300, 303 (Tex.1966):

“It is settled . . . that the statute [Art. 3737e ] creates an exception to the hearsay rule deemed justified notwithstanding the deprivation of the right of cross-examination.”

There is competent evidence of other collisions under similar conditions other than the Highway Department document. The conductor of the train had knowledge of two prior accidents and was an eye-witness to a nighttime accident occurring ten days before this accident. Witness Howard investigated the signals at this crossing after two accidents, and there is some testimony that light from the DuPont plant caused confusion. See Texas & N. O. R. Co. v. Davis, 210 S.W.2d 195, 205 (Tex.Civ.App.—Beaumont 1948, writ ref’d n. r. e.). All of appellant’s points are overruled. The judgment of the trial court is affirmed.

AFFIRMED.

KEITH, Justice,

dissenting.

Although I am not in complete accord with the single holding of the majority— there was no error in the admission of testimony concerning prior accidents at the crossing in question — I do not address that subject in this dissent. But, cf. State v. Chavers, 454 S.W.2d 395, 398, syl. 3 (Tex.1970); and Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 305, syl. 9 (Tex.1962). See also Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631, syl. 8 (1941); Aetna Insurance Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376, 379, syl. 3 (1959).

I am more concerned with the failure of the majority to address or even mention the first twenty-four points of error wherein the railroad contends, in every conceivable combination of presentation form, that the crossing was not an extrahazardous crossing either as a matter of fact or as a matter of law.

There is no controversy whatsoever that the crossing was protected by automatic flashing signals and ringing bells — which were working at the time of the accident —and that the plaintiffs’ vehicle ran into the side of a moving car which was occupying the crossing at the time. The driver had to ignore completely six brilliant flashing red lights facing her as she approached the crossing; she also had to ignore the ringing of the bells upon the poles supporting the signals flashing in her direction. The weather was clear; there was no rain, fog, smoke, or drizzle to obstruct the driver’s view of the crossing. The roadway east of the crossing was straight for at least ths of a mile and the track crossed the roadway at right angles.

Moreover, some of the lights were up over the pavement, cantilever style, and were focused on the lanes of the highway for a distance of about 3,000 feet. Other flashing lights were on the poles and focused upon the highway so as to shine in an approaching driver’s eyes. In short, as the highway, engineer testified, the lights were safe when put up by the highway department.

Liability of defendant was predicated upon a series of findings which are summarized in the margin. The jury also found that the driver failed to keep a proper lookout, failed to make a timely application of the brakes, drove at an excessive rate of speed, and failed to heed the warning given by the operating electric railroad signal. Each act of negligence on the part of the driver was found to be a proximate cause of the collision.

The record shows that the movement in question began when the entire cut of cars was inside the DuPont plant south Of the highway. The engine, coupled to twenty-one cars, pulled north and sixteen of the cars were north of the highway crossing when the engine stopped and began a southward movement. It was at this time that the collision occurred when the automobile ran into one of the cars which had been blocking the crossing for several minutes. There was no contact between the engine or the front of any of the moving cars — the automobile simply ran into the side of the tank car.

I would first note that there was no duty on the part of the railroad to blow the whistle after the engine had crossed the highway. Texas & N. O. R.R. v. Stratton, 74 S.W.2d 741, 744 (Tex.Civ.App.—San Antonio 1934, writ ref’d); Reid v. Texas & N. O. R.R., 254 S.W.2d 164, 167 (Tex.Civ.App.—Galveston 1952, writ ref’d n. r. e.); Woods v. Panhandle & S. F. Ry., 315 S.W.2d 953, 955 (Tex.Civ.App.—Amarillo 1958, writ ref’d n. r. e.). Missouri-K—T R.R. v. Wagner, 400. S.W.2d 357, 361 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.).

It is obvious from what has been written that the railroad had taken adequate precautions to protect the crossing for all but the most heedless and reckless of drivers. Additionally, as was said in Missouri Pacific Railroad Company v. Cooper, 563 S.W.2d 233, 234-235 (Tex.1978), “An additional warning of danger to those proceeding toward the railroad crossing was the presence of railroad cars that were already occupying the crossing and directly in front of the driver.”

Moreover, even from a cursory examination of the liability findings, it is apparent that the jury accepted the testimony of the highway engineer as to the need for the improvements made after the accident. Thus, his testimony contravenes a rule now in its ninetieth year in Texas that “evidence of improvement made in the appliances and mode of operating a railroad after an accident should not be received as evidence of former negligence” since it would discourage improvements. Missouri Pac. Ry. v. Hennessey, 75 Tex. 155, 12 S.W. 608, 610 (1889); 2 C. McCormick & R. Ray, Texas Law of Evidence § 1151, at 42 ( 2d Ed. 1956), and cases therein cited.

Since I find no probative evidence supporting the findings of liability on the part of the railroad, I dissent from an affirmation of the judgment.

       Plaintiffs’ had already shown without objection that following this accident the Highway Department had installed lights over the crossing as well as lights in front to warn motorists they were approaching a crossing.

      . Some of the prior accidents were at another and nearby crossing; others were in the daytime while this one was at night; in some, the automobile was going east while this one was going west. In still others, there was a simple and unexplained accident. Cf. Missouri Pac. R.R. v. Cooper, 563 S.W.2d 233, 236 (Tex.1978).

      . While I deplore the present practice — perhaps required by our present rules — of a proliferation of points, the sheer number of such points does not relieve an appellate court of the duty of addressing the subject, at least generally-

      . (4, 5, 6) The engineer failed to blow the horn on the engine before starting the south movement which was negligence and a proximate cause of the collision; (7 and 7A) that “the conditions surrounding the crossing in question was [sic] such as to render that crossing more than ordinarily dangerous as a nighttime crossing at the time and place in question” and that the defendant knew or should have known that such crossing was more than ordinarily dangerous as a nighttime crossing; (8) that it was negligence for the Railroad, in addition to the flashing warning lights, not to have one or more of the following precautions taken: (a) an illuminated crossing; (b) an electrical lighted advance warning signal, and (d) flag the crossing with a fusee; and (9) the omissions inquired of in 8(a), (b), and (d) constituted a proximate cause of the collision.


source: Caselaw Access Project

author: J. CURTISS BROWN, Chief Justice.

license: Public Domain

text:
    PLANT PROCESS EQUIPMENT, INC., Appellant, v. Honorable Ed J. HARRIS et al., Appellees.
    No. B2077.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 14, 1979.
    Rehearing Denied April 4, 1979.

      Larry G. Patton, Donald H. Fidler, Houston, for appellant.
    Michael J. Wood, Crain, Catón, James & Oberwetter, Houston, George Martin, Martin, Carmona, Cruse, Micks & Dunten, Galveston, for appellees.
    Before BROWN, C. J., and COULSON and CIRE, JJ.
   J. CURTISS BROWN, Chief Justice.

Appeal is from a “temporary restraining order” on the contention that in effect the order constitutes an appealable temporary injunction.

Plant Process Equipment, Inc., appellant, contracted to manufacture and assemble certain equipment for K. B. Kennedy Engineering Co., Inc., appellee. Appellee made periodic payments on the equipment up to November 1978, at which time payments were stopped. Appellant completed construction of the equipment and was in possession of the property pending resolution of disputes as to final amounts due on the equipment. Appellee, in danger of breaching a contract with a third party, and yet not desiring to pay the amount claimed by appellant to be due, brought an action seeking a temporary restraining order, a temporary injunction, and a permanent injunction to preclude appellant from interfering with appellee’s peaceable possession of the equipment. Appellee further sought for the injunctions to protect the peaceable possession of the third party, even though the third party was not involved in the action. The trial court, declining to issue even the temporary restraining order without notice, provided for notice to appellant and held a hearing on the day after appellant was notified. After the hearing the trial court granted the “temporary restraining order” and set a date for hearing on the temporary injunction.

The first issue for determination is whether the order sought to be appealed from is an appealable order. Our inquiry, of necessity, begins with article 4662, Tex. Rev.Civ.Stat.Ann. (1952). That article provides:

Any party to a civil suit wherein a temporary injunction may be granted or refused or when motion to dissolve has been granted or over-ruled, under any provision of this title, in term time or a vacation, may appeal from such order or judgment to the Court of Civil Appeals.

On its face, the statute appears to limit appeals to temporary injunctions and, by implication, to preclude appeals from temporary restraining orders. However, where the force and effect of a temporary restraining order is indistinguishable from that of a temporary injunction, the order is appealable. Ellis v. Vanderslice, 486 S.W.2d 155, 159 (Tex.Civ.App.—Dallas 1972, no writ). The controlling factor is not whether the trial court granted notice of the hearing as required before issuance of a temporary injunction, but whether the relief granted does more than preserve the status quo during the ten day span of a temporary restraining order. Ellis, supra. See, Jackson v. Lubben, 502 S.W.2d 860 (Tex.Civ.App.—Dallas 1973, no writ). In the case at bar, the order enjoins appellant from interfering with the possession of the equipment by appellee and the third party. The effect of that order is to alter the status quo existing before the suit was filed. Before that time, appellant and ap-pellees were negotiating over the amounts still owed for the equipment, but the equipment was being held by appellant pending the outcome. The order deprived appellant of that possession and allowed appellee to transport the equipment out of the state and deliver it into the possession of a third entity not a party to the suit. As in Ellis, “[t]hese circumstances show that the effect of the trial court’s order will probably be felt beyond the dates set for hearing of the application for temporary injunction.” Ellis, supra, at 159. Consequently, the orders in question constitute a temporary injunction appealable under article 4662.

Turning now to the merits of the appeal, we note initially that review of an interlocutory order granting or denying a temporary injunction is restricted to the question whether the trial court abused its discretion. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.Sup.1978). Further, the purpose of a temporary injunction is limited to preserving the status quo pending the outcome of the principal litigation. Id.; Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961). It is an abuse of discretion for a trial .court to ignore the undisputed facts and to enter a temporary injunction disturbing the status quo because a “court is without authority to divest a party of property rights without a trial.” Perry v. Stringfellow, 134 Tex. 328, 134 S.W.2d 1031, 1032 (1940). See also, MGJ Corporation v. City of Houston, 544 S.W.2d 171 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n. r. e.).

Here, the undisputed facts were that appellant manufactured the equipment and was in possession pending final payment by appellee. It is further undisputed that the appellee owed at least $110,124.13 on the equipment. The status quo to be preserved was for the appellant to retain possession until the dispute was resolved. Therefore, based on the undisputed facts, it was a clear abuse of discretion for the trial court to deprive appellant of its property rights, vest those rights in appellee, and then to protect those rights in an entity not a party to the suit.

In addition, the temporary injunction granted in this case accomplishes all the relief sought in the principal litigation. It is not proper in a temporary injunction hearing to determine prematurely the ultimate rights to possession of property or to divest a party of possession. of property obtained without trespass. Stringfellow, supra.

Having found the trial court’s action in granting the temporary injunction in this case to have been an abuse of discretion, we reverse the trial court and render judgment for the appellant. The temporary injunction is dissolved. Since appellant has received all the relief sought, we find it unnecessary to consider the petition for writ of mandamus and therefore it is dismissed.


text:
    Gilbert Edward LINSCOMB et al., Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY et al., Appellees.
    No. B1883.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 14, 1979.

      John H. Benckenstein, Benckenstein. & Norvell, Beaumont, for appellants.
    Harmon Parrott, Claude Treece, Sewell, Junell & Riggs, James H. Brannon, Schmidt & Matthews, Houston, for appellees.
    Before BROWN, C. J., and COULSON, J.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order overruling the pleas of privilege of appellants A. F. Jones and Sons, Inc. and Gilbert Edward Linscomb.

The suit arose out of a railroad crossing accident in Beaumont, Jefferson County, Texas between a Southern Pacific Transportation Company (SoPac) train and a vehicle owned by A. F. Jones and Sons, Inc. and driven by Gilbert Edward Linscomb. Plaintiff Duhon was riding in the locomotive, and alleged to have sustained personal injuries in the collision. He filed suit in Harris County to recover damages therefor. He claimed that SoPac was liable under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., and the Federal Safety Appliance. Act, 45 U.S.C. § 1 et seq., and that Jones and Linscomb were liable by virtue of having proximately caused the accident through negligence. SoPac filed a cross claim for indemnity or contribution against Jones, and also filed a third party action against Linscomb for indemnity or contribution.

Jones filed pleas of privilege as to both Duhon’s claim and SoPac’s cross claim. Linscomb filed a plea of privilege as to SoPac’s third party action. Both sought to remove the suit to their county of residence, Jefferson.

Duhon filed a controverting affidavit against Jones’ plea based on section 4 of Tex.Rev.Civ.Stat.Ann. art. 1995. SoPac controverted the pleas of Jones and Lin-scomb based on Tex.Rev.Civ.Stat.Ann. art. 2212a (Supp.1978). After a hearing the district court overruled the pleas of privilege of both Jones and Linscomb.

Appellants Jones and Linscomb present six points of error. For clarity these may be grouped for discussion.

First, appellants assert that neither Du-hon’s nor SoPac's controverting affidavits made the respective original petitions a part thereof and that appellees failed to. swear to the essential facts embodied in the controverting pleas.

Initially we note that all three controverting pleas involved in this case were properly sworn to. Further, in A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 622 (1939), the rule is stated that “the plaintiff in his controverting affidavit . must allege, either in the controverting affidavit or by a specific reference to and adoption of allegations in his petition, sufficient facts as venue facts upon which the alleged cause of action is sought to be maintained” (emphasis added). See also 1 McDonald, Texas Civil Practice § 4.49, pp. 597, 599 (1965). Therefore, if the controverting pleas allege sufficient venue facts, it is not necessary that appellees have incorporated their petitions into such pleas.

Duhon’s controverting plea filed against Jones’ plea of privilege was based on subdivision 4 of article 1995. This section states:

' Defendants in different counties. — If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. ...

Under this exception the plaintiff must allege the following venue facts: (1) He must plead and prove that one defendant resides in the county of suit; (2) He must allege a joint cause of action against the resident and non-resident defendants or causes of action against the two defendants which are intimately connected; and (3) He must plead and prove that he has a bona fide claim against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (Tex.Comm’n App.1936, opinion adopted).

Appellee Duhon alleged and presented evidence that the legal residence and domicile of SoPac was in Harris County, Texas. He further pled that he, as plaintiff, had a joint cause of action against the resident defendant, SoPac, and the nonresident Jones, and that these causes of action were so intimately connected- that they should be joined to avoid a multiplicity of suits. This allegation follows the language of Stockyards Nat. Bank v. Maples, supra, and suffices to show that the party asserting the plea of privilege is a proper party to the suit. The Stockyards case further held that it is not necessary for the plaintiff to show proof of a cause of action against the nonresident defendant. 95 S.W.2d at 1304. The third essential venue fact was alleged by the controverting plea, wherein it was stated that “Plaintiff . . . has a bona fide claim against Defendant Southern Pacific Transportation Company in that said Defendant failed to provide your Plaintiff with a reasonably safe place in which to work and . . . reasonably safe equipment . . . .” Evidence was presented as to this, and appellants do not contend that Duhon failed to show sufficient evidence to prove a valid cause of action against the resident defendant SoPac.

Appellants filed no special exceptions challenging .the form or legal sufficiency of Duhon’s controverting affidavits. “[W]here there are factual allegations, Oven though so general that a special exception would be sustained, the court in the absence of such an exception will construe them liberally and indulge every reasonable in-tendment to sustain the controverting plea. Failure to call the court’s attention to defects in the controverting plea . . ., even defects of substance, will waive the error.” 1 McDonald, Texas Civil Practice § 4.49, pp. 596-97 (1965); Tex.R.Civ.P. Rule 90. Therefore appellants may not now claim that Duhon’s controverting plea was overly broad, vague, or otherwise insufficient.

SoPac filed a controverting plea against Jones’ and Linscomb’s pleas of privilege based on Tex.Rev.Civ.Stat.Ann. art. 2212a § 2(g) (Supp.1978), which states in part:

All claims for contribution between named defendants in the primary suit shall be determined in the primary suit

The controverting affidavit was properly sworn to. As discussed above, it was not necessary for SoPac to make its petition in the cross action and third party action a part thereof. Both Jones and Linscomb were named defendants. Points of error one, three, and five are overruled.

In point of error two it is urged that the causes of action against SoPac and against appellants may not be joined because they are not of the same nature, one being based on a federal statute and the other on a common law tort. Tex.R.Civ.P. Rule 40 states, in part:

(a) Permissive Joinder. ... All persons may- be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to ail of them will arise in the action . . . (emphasis added).

The causes of action against SoPac on one hand and Jones and Linscomb on the other arose out of the same transaction, the crossing accident. Accordingly they are not “separate and distinct”, as appellants claim, and the parties are properly joined. Point of error two is overruled.

In points of error four and six appellants urge that the cross action and third party action for contribution and indemnity should be transferred to Jefferson County because the pleas of privilege of Jones and Linscomb should be sustained, thus moving the primary suit to Jefferson County. Since the pleas of privilege in the primary suit were properly overruled, there was no error in overruling the pleas of privilege in the actions for contribution or indemnity pursuant to article 2212a.

Affirmed.

CIRE, J., not participating.


author: SALAZAR, Justice.

text:
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. John C. MURPHY, Appellee.
    No. A1989.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 14, 1979.
    Rehearing Denied April 4, 1979.

      James H. Limmer, Tekell, Book & Matthews, Houston, for appellant.
    N. J. “Jim” Farrell, Houston, for appel-lee.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   SALAZAR, Justice.

Defendant-insurance company appeals from a jury verdict which found that goods stored overnight in a truck on motel premises and subsequently stolen were in transit within policy coverage. Based on the jury verdict, the trial court awarded plaintiff-appellee a judgment for the value of the stolen goods less the deductible amount with prejudgment interest. The appellant-insurance company challenges the trial court’s overruling of its motion for instructed verdict and motion for judgment notwithstanding the verdict on the ground there was no evidence as a matter of law that appellee’s goods were in transit at the time of theft, and appellant challenges the award of judgment to appellee on the ground there was no evidence to support the jury’s answer to special issue number one, finding appellee’s goods to be in transit at the time of the theft. Appellant further contends that the trial court erred in overruling its motion for new trial on the ground there was insufficient evidence to support the jury’s answer to special issue number one. Appellee controverts the points of error, urging there was ample and sufficient evidence to support the jury’s finding that the goods were in transit, that policy coverage also existed covering appel-lee’s loss under the 72 hour terminal coverage and the theft endorsement, and that any ambiguity in the policy language should construe against the insurer to afford coverage. We conclude that the goods were in transit at the time of the occurrence in question and therefore affirm the judgment of the trial court.

As stipulated by the parties at trial, on or about August 23, 1973, while the policy made the basis of this suit was in full force and effect, the appellee suffered a loss of goods consisting of sporting and wearing apparel. Appellee had arranged to purchase the sports apparel from a manufacturer located in Mexico. Having paid the purchase price beforehand, appellee further arranged to accept delivery of goods in San Antonio. He intended to rent a truck there and transport the goods back to Houston himself.

Prior to the trip to San Antonio, appellee paid a premium for an inland marine cargo insurance policy with appellant. The policy had a theft endorsement covering theft of the entire shipment and also had attached a motor truck cargo owners and truckmen’s form. This form provided coverage on “Men & boys sporting wearing apparel” owned by the insured for direct loss caused by any of the listed perils in transit while loaded for shipment in or on vehicles described in the policy within the radius specified on the form. In appellee’s policy, the radius of operations was designated to be three hundred miles of Houston, Texas. Under the vehicle description section, it was typed in as “Assured Rents Truck to Transport Merchandise from Local Truck Rental Firm as needed.” The limit of liability was $15,000.00 limited to one truck. Appellee’s deductible amount was $250.00. The truck-men’s form thereafter set out the perils which the policy protected against, the exclusions, and the special conditions. Under the exclusions section, loss or damage to any shipment in or on any vehicle under the control of the insured after such vehicle has remained at any dock, depot, station, terminal for more than seventy-two hours after arrival of the vehicle at such location was not covered by the policy.

Upon arrival in San Antonio by air from Houston, appellee checked into a motel near the airport and rented a truck. He parked it in the motel parking lot. Appellee testified that a truck bearing the lettering “TORMEX”, the name of the manufacturer, arrived at the motel between 8:00 P.M. and 9:00 P.M. on the evening of August 22, 1973. Appellee then moved his rented truck from the lot on to the side street to facilitate the transfer of boxes of apparel. He pulled the truck back into the parking lot and padlocked it before retiring to his motel room. Appellee later testified that he intended to spend the night in San Antonio because he knew what time he was going to get there. The truck was broken into during the night and the goods taken.

At trial, the plaintiff-appellee’s case consisted of testimony from two witnesses, John C. Murphy, the plaintiff, and Robert W. Blanchard, a self-employed claims adjuster whom Mr. Murphy had contacted for representation in the theft loss with appellant. Appellant offered the offense report form the San Antonio Police Department as evidence in its case. The jury deliberated on two special issues, the first of which was accompanied by an instruction of “in transit”, to wit: in the course of passing from the point of origin to the destination point, so long as the property is in the course of being delivered to the place of which it is being shipped. No objection was made to this instruction by appellant and the record shows that no other instructions were requested by appellant.

In response to special issue number one, the jury found that the goods were in transit while loaded for shipment in or on vehicles described in the policy at the time the goods were stolen. In response to special issue number two, the jury did not find that appellee failed or refused to submit to examination under oath, by any person designated by appellee, in connection with the investigation of the loss.

Appellant’s first three points of error urged that there was no evidence as a matter of law that the plaintiff’s goods were in transit at the time of the occurrence in question and therefore the trial court erred in overruling appellant’s motion for instructed verdict and motion for judgment notwithstanding the verdict and that the trial court further erred in entering judgment for the plaintiff. In deciding “no evidence” points of error, such a point of error must be sustained on appeal if reasonable minds cannot differ from the conclusion that the evidence lacks probative force. Wood v. Townsend, 144 Tex. 594, 192 S.W.2d 884 (1946); Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960). Here it cannot be said that there was no probative evidence that the plaintiff’s goods were not in transit at the time of the occurrence in question. A duly empaneled jury found the facts to be such that the goods were indeed in transit at the time of theft. Furthermore, in deciding no evidence points of error, the evidence on appeal must be viewed in its most favorable light in support of the finding of the vital fact, considering only the evidence and the inferences which support the vital fact and rejecting the evidence and the inferences which are contrary to that finding. Calvert, 38 Texas L.Rev. at 364. Having done so, this court finds that the evidence does support the finding that the goods were in transit and thus appellant’s first three points of error cannot be sustained.

The facts of this case are more closely akin to the facts in Gulf Insurance Co. v. Ball, 324 S.W.2d 605 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.). In Gulf, the carrier was transporting a shipment of tires insured under the terms of a trip transit insurance policy. While travelling on the highway, the driver was forced into a ditch to avoid a collision and the truck suffered extensive damage. Gulf Insurance Co. v. Ball, supra at 608. Before the driver could return to get the trailer out of the ditch, the locked trailer and its contents were destroyed by fire. The policy provided coverage from the time the goods left the initial point of shipment while in the due course of transit until safely delivered at destination. The court held the goods to be in transit at the time of the fire. Gulf Insurance Company v. Ball, supra at 609.

Unlike the facts in United States Fidelity and Guaranty Co. v. Hutton Construction Co., Inc., 544 S.W.2d 762 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.), Haggar Company v. United States Fire Insurance Company, 497 S.W.2d 61 (Tex.Civ.App.—Texarkana 1973, no writ), and Simons v. Niagara Fire Insurance Company, 398 S.W.2d 833 (Tex.Civ.App.—Fort Worth 1966, no writ), the sports apparel in the present case did not lie in a warehouse or grain elevator at the time of loss for a week, three months, or over a weekend. Indeed, the goods were loaded in a truck being transported to Houston. Appellee intended only to pass the one night before beginning the journey back to Houston given the lateness of the hour.

The policy itself did not define “in transit”. It is a settled rule that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer, and especially so when dealing with exceptions and words of limitation. Glover v. National Insurance Underwriters, 545 S.W.2d 755, 761 (Tex.Sup.1977); Ramsey v. Maryland American General Insurance Company, 533 S.W.2d 344, 349 (Tex.Sup.1976). When the language of an insurance contract is ambiguous, that is to say, subject to two or more reasonable interpretations as is the case here, then the construction which affords coverage will be the one adopted. Glover v. National Insurance Underwriters, supra at 761. We hold that the sports apparel was still in transit so long as the property was in the course of being delivered to the place to which it was being shipped.

Appellant’s fourth point of error raises, an insufficient evidence contention that the trial court erred in overruling its motion for new trial because there was insufficient evidence to support the jury’s finding to special issue number one that appellee’s goods were in transit at the time of the occurrence in question. In deciding on insufficient evidence point of error, this court must review all of the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of all the evidence to be clearly wrong. A. B. McGowen v. State, 558 S.W.2d 561, 564 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n. r. e); Calvert, 38 Texas L.Rev. 361, 366 (1960). We believe that there was ample credible evidence to support the jury’s finding that the goods were in transit. Appellee’s testimony established the sequence of events leading to the delivery of the goods and established a theft which was duly reported to the police. Upon reviewing this evidence, we cannot say that the jury finding was so contrary to the overwhelming weight of the evidence to be clearly wrong.

Having overruled appellant’s points of error, we affirm the judgment of the trial court.


author: O’QUINN, Justice.

text:
    H. L. McRAE COMPANY, Petitioner, v. HOOKER CONSTRUCTION COMPANY, Respondent.
    No. 12852.
    Court of Civil Appeals of Texas, Austin.
    March 14, 1979.

      Billy D. Hullum, Barron & Hullum, Wills Point, for petitioner.
    Stephen R. Fontaine, Sleeper, Williams, Johnston, Helm & Estes, Waco, for respondent.
   O’QUINN, Justice.

H. L. McRae Company is petitioner on appeal upon application for writ of error from a default judgment of the county court at law of Bell County.

As the principal contractor on construction of the Killeen Junior High School, Hooker Construction Company sued McRae Company, a subcontractor, for breach of contract to furnish and install resilient floor covering with base and carpeting for the project.

Hooker Construction sought to obtain service on McRae by serving the company’s attorney. McRae Company undertook to answer and file a counterclaim, but on the same day the pleadings were filed in the clerk’s office the trial court entered a default judgment against McRae for $1,832.15.

McRae attempted to appeal from that judgment, but because appellant’s cost bond was filed more than thirty days after motion for new trial was overruled, this Court dismissed the appeal for want of jurisdiction. (564 S.W.2d 142) Thereafter application for writ of error was timely filed, and the cause was submitted after oral argument.

Under four points of error, McRae Company contends that (1) the trial court was without jurisdiction and incorrectly found that McRae Company had been served prior to entry of default judgment; (2) the court erred in finding that McRae failed to answer and make timely appearance before entry of judgment; (3) the court erred in entering default judgment because counsel for McRae had relied upon representations of counsel for Hooker Construction that time would be allowed for filing an answer; and (4) it was error to sustain notice of default judgment given by postcard under Rule 239a upon an improperly completed certificate of last known address.

The default judgment entered by the trial court recited that H. L. McRae Company, “. . . although duly served with process, the said Defendant has at all times heretofore failed to appear or answer in its behalf, but wholly made default . . . ” The record discloses that McRae Company was not served with process, but that the citation directed to the company was served in fact on its attorney.

It is settled that “. . .on appeal from a default judgment the record must show an appearance by defendant or due service of citation, independent of recitals in the judgment.” Castleberry v. Castleberry, 135 Tex. 409, 135 N.W.2d 701, 702 (1940); Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934, 935 (1935). Petition for writ of error in this Court is a direct attack on the default judgment, and the record must show affirmatively that the trial court had jurisdiction of defendant’s person. Whitney v. L & L Realty Corporation, 500 S.W.2d 94, 95 (Tex.Sup.1973).

It is the general rule that service on an agent or attorney is not sufficient to effect service on the principal unless the person to be served expressly authorized an agent or attorney to receive process. See 72 C.J.S. Process § 31, p. 1034 (1951); 7 C.J.S. Attorney and Client § 83(a), p. 905 (1937). Service of citation on a defendant’s attorney, absent defendant’s explicit authorization, will not constitute service to give the trial court personal jurisdiction of defendant. Sindorf v. Cen-Tex Supply Co., 172 S.W.2d 775, 776 (Tex.Civ.App. El Paso 1943, no writ); Neal v. Roberts, 445 S.W.2d 58, 60 (Tex.Civ.App. Houston (1st) 1969, no writ).

Although H. L. McRae, in his verified motion to set aside the default judgment stated that his “. . attorney accepted service on October 15, 1977,” we do not find in this statement, nor in any portion of the motion, admission of prior authority in the attorney to accept service for McRae Company. In a subsequent verified motion for rehearing, McRae denied authority in the attorney to accept service, and invoked Rules 106,119, and 124, Texas Rules of Civil Procedure, in contending that service was inadequate.

We hold that service of process on McRae Company’s attorney, there being no authority from the Company to constitute the attorney its agent for service, was defective and did not give the trial court personal jurisdiction over the defendant to render the default judgment.

Hooker Construction concedes that the citation directed to McRae was served on the Company’s attorney and not on McRae, but contends that any defect in service was waived in appearances McRae made in the trial court without contesting jurisdiction. The record shows that service on the attorney was effected October 15, 1977, but the return was not filed with the clerk of the trial court until November 14, 1977. Rule 107, prior to its amendment effective January 1, ■ 1978, provided: “No default judgment shall be granted in any cause until the citation, with the officer’s return thereon, shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.” It is undisputed that the trial court heard testimony on November 22, the eighth day following filing of the return, on the basis of which hearing the court entered default judgment November 28.

McRae filed his motion to set aside the default judgment, with supporting affidavit of the attorney, on December 7,'1977. The principal basis suggested in the motion, for setting the judgment aside, was the fact that McRae had attempted to file an answer and counterclaim, mailed to the clerk on November 21, which had been delayed beyond the ten-day period prescribed by Rule 107 because the clerk’s office- was closed on Thanksgiving Day and on Friday, Saturday, and Sunday following, resulting in delay of actual filing until Monday, November 28, the day default judgment finally was signed and entered.

This appearance, made for a purpose inconsistent with lack of jurisdiction by the court over the defendant, amounted to a confession of jurisdiction, after which defendant could not deny the court’s jurisdiction over the person. St. Louis & S. F. R. Co. v. Hale, 109 Tex. 251, 206 S.W. 75 (1918). In Hale the Supreme Court stated the rule in this language: “It seems to be almost uniformly held that a general appearance is entered whenever the defendant invokes the judgment of the court in any way on any question other than that of the court's jurisdiction, without being compelled to do so by previous rulings of the court sustaining the jurisdiction.” (Emphasis added)

In Hale the defendant had filed a motion to require the plaintiff to give security for costs, which the Supreme Court said, “. . . obviously implied that the defendant had an interest in the adjudication to be made with respect to such costs.” (206 S.W. 75, col. 1) In the present case McRae moved to set aside the default judgment, not on the basis of a challenge of the court’s jurisdiction, but on the merits of the case which defendant had sought, in a delayed filing, to answer and make counterclaim.

The question remains, of course: Was this general appearance for subsequent proceedings only, or was the appearance retroactively effective to include action of the court in entering default judgment? We are of the view that McRae’s appearance placed him under jurisdiction of the court with respect only to subsequent proceedings.

Hooker Construction argues that McRae’s appearances, both in filing an answer and counterclaim which were not before the court at the time of hearing evidence and later entering judgment, and in filing motion to set aside the judgment, were retrospectively effective to waive defect in service of citation. In this position Hooker relies upon Hale and Ana-Log, Inc. v. City of Tyler, 520 S.W.2d 819 (Tex.Civ.App. Tyler 1975, no writ).

We do not find that either case supports the contention Hooker makes. The Supreme Court in Hale spoke of a general appearance as denying defendant the right “thereafter” to assail the court’s jurisdiction. In Ana-Log the court of civil appeals said plainly, “Appellant placed itself before the court for all purposes of the suit and should not now be heard to complain of the proceedings subsequently had in the cause on the ground that the citation was fatally defective.” (520 S.W.2d 823, col. 1).

We do not find in Hale, Ana-Log, or in any of the cases cited by the court in Ana-Log, authority to hold that appearance by a defendant, after a default judgment, gives the trial court personal jurisdiction necessary to validate that judgment, when such jurisdiction, at the time of judgment, was entirely lacking. We consider the better rule to be that the general appearance of defendant, by which the party waives defects in service, must precede any action of the court which such appearance validates.

The Supreme Court more than 80 years ago stated: “the general rule is well established that a judgment rendered by a court even of general jurisdiction is void if it had, at the time of rendition of the judgment, no jurisdiction of the person of the defendant or the subject-matter of the litigation. This principle is self-evident, because until the court acquires jurisdiction it has no power to proceed to investigate and determine private rights.” (Emphasis added) Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325, 328 (1895). This principle of jurisdiction was expressed by a court of civil appeals in the statement that “. . . validity of judgment depends on jurisdiction of court before rendition, not upon what may occur subsequently.” (Emphasis added) Hicks v. Sias, 102 S.W.2d 460, 464 (Tex.Civ.App. Beaumont 1937, writ ref’d).

In even more comprehensive language, another court stated: “Under the laws and court rules of this state, a defendant is not required to answer and no judgment may be taken against him before issuance, service and return of citation for the time and in the manner provided, or until he has entered actual or constructive appearance. Rules 101, 106, 107 and 119 to 124 inclusive.” (Emphasis added) Gulf Refining Co. v. Needham, 233 S.W.2d 919, 923 (Tex.Civ.App. Eastland 1950, no writ). McDonald divides the period before the voluntary action of a party from the period following such appearance in this language: “An appeal or writ of error from a judgment by default constitutes an appearance from the time it is perfected, though it does not waive defects in the process or its service which may render the judgment voidable.” (Emphasis added) 2 McDonald, Texas Civil Practice 370 (1970).

In view of the disposition we make of this appeal, which will be to set aside the default judgment and remand the cause for new trial, it is pointed out that under Rule 123 and an earlier holding of this Court prosecution of the writ of error by McRae, in which the Company invoked the jurisdiction of this Court to reverse the judgment against it, constituted a personal appearance as a litigant, and it will not be necessary tó issue and serve further process. American Soda Fountain Co. v. Hairston Drug Co., 52 S.W.2d 764, 767 (Tex.Civ.App. Austin 1932, no writ); Rule 123, Texas Rules of Civil Procedure. Having determined disposition of the appeal under petitioner’s first point of error, we do not reach the remaining points.

The judgment of the trial court is reversed, and the cause is remanded for new trial.

Reversed and Remanded.


author: SHANNON, Justice.

text:
    CITY OF FRISCO, Appellant, v. TEXAS WATER RIGHTS COMMISSION et al., Appellees.
    No. 12815.
    Court of Civil Appeals of Texas, Austin.
    March 14, 1979.
    Rehearing Denied April 11, 1979.

      Barry K. Bishop, William Y. Fowler, IV, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    John L. Hill, Atty. Gen., B. D. Skip New-som, Jr., Asst. Atty. Gen., Austin, for Texas Water Rights Commission.
    Frank R. Booth, Paul G. Gosselink, Booth, Lloyd & Simmons, Austin, for City of Den-ton, Texas.
    James W. Wilson, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin,. for City of Dallas.
   SHANNON, Justice.

The City of Frisco appeals from judgment of the district court of Travis County that affirmed an order of the Texas Water Rights Commission, now the Texas Water Commission. The Commission’s order granted applications of the Cities of Dallas and Denton for permits to appropriate water from the proposed Aubrey Reservoir Project on the Elm Fork of the Trinity River. The order also denied applications of Frisco and others to appropriate water from the same project. We will affirm the judgment.

The Aubrey Project will be constructed by the United States Army Corps of Engineers in Cook and Grayson Counties. The Project consists of the proposed Aubrey Dam, the lake that it will form, and the increase in storage capacity that will result in Lake Lewisville, an existing downstream reservoir. Lake Aubrey will have a conservation storage capacity of 797,600 acre-feet, and the conservation storage capacity of Lake Lewisville will be increased by 177,600 acre-feet. The increase in capacity in Lake Lewisville will occur because the construction of the Aubrey Reservoir will provide 177,600 acre-feet additional flood control storage that Lake Lewisville will no longer have to provide.

The Commission received six competing applications for the storage and diversion rights to be created by the Aubrey Project: Dallas, 591,704 acre-feet (seventy-four percent of the storage capacity of Lake Aubrey); Denton, 207,896 acre-feet (twenty-six percent of Lake Aubrey); Frisco, 68,000 acre-feet; Collin-Denton County Water and Sanitation District, 6,500 acre-feet; Gainesville, 42,000 acre-feet; and the Colony Municipal Utility District No. 1 of Denton County, 30,000 acre-feet.

The Commission granted the applications of Dallas and Denton and denied all of the other applications. The permits issued to Dallas and Denton, among other things, authorized Dallas to divert and use seventy-four percent of the storage capacity of Lake Aubrey and Denton to divert and use the remaining twenty-six percent of the storage capacity. Both permits contained the statement: “Permittee supplies water to cities and other public entities, and this permit is issued on the assumption that permittee will continue the policies under which such service is provided.”

Only Frisco perfected an administrative appeal of the Commission’s order. The Commission was of the opinion, as reflected by its findings of fact, that Frsico had water supply sources to furnish its reasonable future water needs, independent of water from Lakes Lewisville or Aubrey.

Frisco attacks the judgment by six points of error. The point critical for Frisco is that the district court erred in sustaining the Commission’s order for the reason that the Commission’s finding that Frisco has sufficient water supply to satisfy its future requirements is arbitrary and “contrary” to substantial evidence.

An appeal from an order of the Commission is governed by the substantial evidence rule. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex: 1966). A statement of the law relating to judicial review of agency orders is found in a recent opinion of this Court, Mutual Building and Loan Association v. Lewis, 572 S.W.2d 771 (Tex.Civ.App.1978, no writ), and need not be repeated in this opinion.

Frisco is a general law city located in Collin and Denton Counties approximately twelve miles north of Dallas and about twenty miles northeast of the Dallas-Fort Worth Regional Airport. Frisco is three miles from the deep water of Lake Lewis-ville. One of the sloughs of Lake Lewisville extends within the boundaries of Frisco. Although Frisco’s land area, and the land which the city controls, is about 56,832 acres, its 1970 population was 1,845 persons and its estimated 1976 population was 3000 persons.

Frisco’s large land area is explained by the fact that prior to the hearing, the city had entered into an aggressive strip annexation program by which it annexed a ten-foot ribbon of land many miles along four highways. The area thus staked out includes several small unincorporated communities and much rural countryside.

As of January, 1976, Frisco’s source of water consisted of five wells. Harold Bacchus, Mayor of Frisco, testified on cross-examination that the city had at the time of hearing a water supply from its wells to satisfy the needs of a population of 5000 to 7000 persons. The wells, however, do not furnish a dependable future water supply. Frisco’s evidence was that it will have to deepen two of its wells because the water table has lowered. Should Frisco have to deepen the wells, the old casing would have to be removed and new easing substituted. There was evidence that the level of ground water will continue to decline.

Probably in view of that fact, the governing body of Frisco entered into a contract with the City of McKinney for the purchase of two million gallons daily of treated water from Lake Lavon to supplement the Frisco water supply. The contract with McKinney is for twenty-five years, and is renewable for another twenty-five years. The pipeline to take the water from McKinney to Frisco was nearly completed at the time of the hearing. Although that pipeline has a limited capacity, Frisco’s engineering witness testified that as Frisco and McKinney grow closer together, pipelines of greater capacity will be constructed. It is true, as contended by Frisco, that McKinney’s obligation under the contract to supply water to Frisco is predicated upon the amount of water North Texas Municipal Water District makes available to McKinney.

The City of Dallas aptly characterizes Frisco as “. . . a small North Texas town with large ambitions.” Frisco placed in evidence before the Commission the testimony of two witnesses, its mayor and an engineer. Most of the testimony concerning future growth was given by the mayor. With respect to its future growth, and corresponding need for water, the mayor testified that Frisco’s population will be about 18,000 in 1980 and about 65,000 in 2000. The mayor’s belief in Frisco’s “manifest destiny” was predicated upon its “unique development program” that the mayor explained to the Commission.

The Commission heard and considered Frisco’s evidence of its need for water for its projected expansion. The Commission, as was its right, refused to credit that evidence. The Commission may have concluded that Frisco’s projected growth was more a gleam in its mayor’s eye than a reasonable probability. More specifically, the Commission obviously believed that Frisco’s growth would be much more moderate than that claimed by its mayor. The Commission reasonably believed that the water supplied by the McKinney contract would be sufficient to meet Frisco’s reasonable future needs. In addition, Frisco has the benefit of the water supplied by its wells. The mayor admitted on cross-examination that the well water supply alone will meet the needs of a population of 5000 to 7000, a number approximately double Frisco’s population at the time of the Commission’s hearing.

Since reasonable minds could have arrived at the conclusion that the Commission reached in entering its order, Frisco’s point of error two is overruled. Auto Convoy Company v. Railroad Commission of Texas, 507 S.W.2d 718 (Tex.1974).

Because Frisco has failed to meet its burden of showing that the Commission’s order denying it a permit to appropriate water was not supported by substantial evidence, reason suggests that Frisco has no justicia-ble interest in the allocation of the waters of Lake Aubrey by the Commission among other applicants. Seemingly, Frisco should be in no better position to challenge the Commission’s award to the other cities than would be any other member of the public. Nevertheless, we have concluded, and all parties to the appeal agree, that the rule is otherwise. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex.1966). The rule is stated by Professor Davis: “To start the judicial machinery in motion, a plaintiff should be required to assert an interest of his own, but once the judicial machinery is in motion, any party should be allowed to argue for what he asserts to be desirable, including the interest of other private parties and the interest of the public.” Davis, Administrative Law Treatise § 22.21, at 786 (Supp.1970).

Frisco claims in point of error one that the court erred in affirming the Commission’s order because the order, in granting seventy-four percent of the water to Dallas even though its supply is sufficient for its reasonable future needs, is arbitrary and not supported by substantial evidence. We do not understand Frisco to attack the judgment affirming the order granting twenty-six percent of the water to Denton.

At the time of the Commission’s hearing, Dallas had several sources of water. Lake Lewisville is on the Elm Fork of the Trinity and is south of the proposed Lake Aubrey. Dallas has rights in Lake Grapevine on Denton Creek, a tributary of the Elm Fork of the Trinity. Dallas has acquired additional water supplies at Lake Ray Hubbard, Lake Tawakoni, and Lake Palestine.

Frisco concedes that without water from Lake Aubrey, Dallas and its client cites have a water supply to meet their combined need only until about the year 2000. Frisco claims, however, that Dallas does not intend to honor its contractual commitments to its city customers. Frisco argues that Dallas, freed of its commitments to its client cities, has water resources, excluding water from Lake Aubrey, to suffice until about the year 2050.

Dallas’ water supply in Lakes Hubbard, Tawakoni, and Palestine is more expensive than the Elm Fork supply because water from the eastern lakes must be pumped to Dallas, whereas water from the Elm Fork supply reaches Dallas’ treatment plants by gravity flow. The higher cost of the water to Dallas from the eastern lakes was an important consideration for the Commission in considering the allocation of rights to the water of Lake Aubrey.

The Aubrey Reservoir has been a consideration in Dallas’ water planning since before 1960. Dallas and Denton contracted in 1962 to develop the project as a joint effort with costs and benefits shared on a seventy-four percent/twenty-six percent basis. In 1969, the Commission designated Dallas and Denton as co-operating local sponsors -for the Aubrey Project. Dallas and Denton have entered into negotiation with the Army Corps of Engineers to acquire the conservation storage which will be made available by construction of the Aubrey Reservoir. The Commission found that Dallas and Denton have the necessary administrative, legal, and technical expertise to provide for the full and successful development of the Aubrey Reservoir. Those cities have the financial resources necessary to adequately finance participation in the Aubrey Project as well as the development of treatment and distribution facilities required for maximum utilization of the water by cities within the basin.

Dallas’ case for utilization of the waters of Lake Aubrey called for “overdrafting” the dependable yield of the reservoir. “Overdrafting” refers to the practice of withdrawing more water from the reservoir than its dependable yield. As we understand, the term “dependable yield” refers to the water demand that can be applied to a reservoir throughout the most severe historical drought without experiencing shortages and is usually expressed in acre-feet per annum or million gallons per day. As explained by the parties, the dependable yield of a reservoir is the amount of water that could have been withdrawn from the reservoir on a continuous basis during the “critical drought” and that would have emptied the reservoir just prior to its replenishment by drought-breaking rains.

If a city has a single reservoir, the withdrawal rate should be such that it does not exceed the dependable yield. The logic underlying a dependable yield operation disappears when a city has a multiple reservoir system with delivery costs from some reservoirs substantially exceeding the delivery costs from other reservoirs. In that case, if the total dependable yield of all of a city’s reservoirs equals or exceeds the city’s total water demands, and if the city has sufficient operational flexibility, substantial savings may be realized by “overdrafting” or taking more than the dependable yield from the reservoirs with less delivery expense. The reasoning is that when the city experiences a severe drought, it can fall back upon water from the more expensive reservoirs that have been left untouched. The fact that there are more non-drought years than drought years enables the city to realize substantial long-term savings from such an “overdrafting” operation.

Dallas presently operates its Elm Fork system in such an “overdraft” operation, and as the water demand increases in the future, Dallas will increase its “overdraft” on the Elm Fork. Lake Aubrey figures in Dallas’ future plan for increased “over-drafting” on the Elm Fork.

Frisco claims that Dallas’ “overdrafting” plan allows Dallas . .to hoard the public waters of Texas while its smaller, less affluent neighbors thirst." Frisco suggests that the “overdrafting” concept allows the water in Lake Tawakoni and Lake Palestine, not presently being used by Dallas, to “waste” in violation of Tex. Water Code §§ 5.268, 11.002(5), 11.025, 11.026, and 11.302 (Supp.1978), and Texas Water Rights Commission v. Wright, 464 S.W.2d 642 (Tex.1971).

Texas Water Code § 5.268 adjures the Commission to administer the law “. so as to promote the judicious use and maximum conservation ... of water.” Texas Water Code §§ 11.002(5), 11.025, 11.-026, and 11.302 assert the principle in varying ways that water rights shall be put to “beneficial use.” “Beneficial use” is defined in the Code to mean “. . . use of the amount of water which is economically necessary for a purpose authorized by this chapter, when reasonable intelligence and reasonable diligence are used in applying the water to that purpose.” Tex. Water Code § 11.002(5). (Emphasis added) In Texas Water Rights Commission v. Wright, supra, the Supreme Court construed the statute that then allowed for cancellation of a permit for nonuse, Tex.Rev.Civ.Stat.Ann. art. 7519a. In the opinion the Court stated:

“Common to the law of the western arid regions and of appropriation law generally is the idea that non-use of appropriated waters is a waste of the water. Once water is appropriated, its availability to another user is reduced or defeated, and if the permittee does not use a substantial portion of it the water will run unused into the sea. A workable system of appropriated waters has produced the general rule that the beneficial use of waters is the conservation of the resource, whereas, the non-use of appropriated waters is equivalent to waste.”

The Commission recognized and accepted the “overdrafting” concept in its findings. The Commission was of the view that diverting more than the dependable yield from the Aubrey Project by Dallas and Denton is “. . . economically beneficial and conserves public water where the diverter has additional alternative water supplies which produce a dependable yield equal to the total diversion demand.” The Commission found that “[mjaximizing the appropriation of water from Aubrey Lake' during periods of occasional surplus is reasonable and promotes the public welfare because Aubrey Lake would provide a source of municipal water which is relatively near Dallas and Denton and substantial savings could be passed on to the public due to the relatively lower pumping costs for water used from this source.”

The “overdraft” operation as approved by the Commission in this case results in the beneficial use of the total water supply of Dallas, a supply that serves the greatest population center of North Texas. In our view, the “overdraft” concept, under the facts of this case, results not in waste, but instead in the judicious use and maximum conservation of water.

The Commission did not attempt to resolve the dispute between the applicants concerning dependable yield of Lake Aubrey. The Commission recognized that the value of the Aubrey Project is not in its dependable yield, but instead in its potential contribution to “overdraft” operations, a value which can only be realized by cities like Dallas and Denton which have multiple-source water supplies.

Frisco charges that the Commission ignored nearly all of the recommendations of its technical and legal staff suggesting limitations on the permits granted to Dallas. Frisco claims that because the Commission did not heed the advice of its own experts, the Commission’s order should not be entitled to the weight normally accorded determinations of technical questions within an agency’s expertise.

Power of decision resides in the agency and not in the staff. An agency staff only serves the agency. Staff recommendations may be accepted in whole or in part by the agency, or such recommendations may be rejected outright. It is the order of the agency that is reviewed by the courts, not the recommendation of the staff. Nevertheless, the court, in discharging its task of reviewing the record as a whole to determine whether the agency order is supported by substantial evidence, may take into account contrary staff recommendations or reports, as it would any other evidence. II Davis, Administrative Law Treatise § 10.04 (1958).

Frisco also quotes statements of individual commissioners made during the course of the hearing thought to be supportive of its position. It is immaterial what a commissioner may have said or thought in the process of arriving at his decision. United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1940). The thought processes or motivations of an administrator are irrelevant in the judicial determination whether the agency order is reasonably sustained by appropriate findings and conclusions that have support in the evidence.

Without the water supply from Lake Aubrey, Dallas, with its entourage of customer cities, has enough water from existing sources to meet the combined need until only about the year 2000. Whether or not Dallas will continue to serve its client cities is not known. That fact could not be ascertained by the Commission. We know of no requirement that the Commission impose any conditions on any appropriation permits that it issues. Because the Commission was not required by statute or rule to condition its permit upon continued service to the customer cities, the Commission’s failure to condition does not render the order arbitrary or capricious.

The Commission’s order granting Dallas seventy-four percent of the water of Lake Aubrey is supported by substantial evidence. Dallas (and Denton) possess the means and the resources for the full and successful development of the project. Moreover, substantial savings to the public will be realized by the planned “overdraft-’ ing” of the waters of Lake Aubrey. The statutes that authorize the Commission to grant or deny applications for appropriative permits contemplate the exercise of broad administrative discretion by the Commission. City of San Antonio v. Texas Water Commission, supra. The grant of the permit to Dallas was an appropriate exercise of that discretion. Point of error one is overruled.

Frisco argues, finally, that the judgment is erroneous in that it affirms a Commission order that allows diversion of water outside the Elm Fork watershed. Frisco states that although the Trinity River Basin is primarily composed of four streams (West Fork, Clear Fork, Elm Fork, and East Fork), the Aubrey Project is located exclusively within the drainage area comprising the Elm Fork watershed. Although all of the water from the Aubrey Project will be used within the Trinity River Basin, Frisco’s evidence was, and the Commission found, that much of the water allocated to Dallas will be used outside the Elm Fork watershed.

Frisco claims that the diversion allowed by the Commission is prohibited by Tex. Water Code § 11.085(a) (Supp.1978) which forbids the taking or diverting of water from “. . . any stream, watercourse, or watershed in this state into any other natural stream, watercourse, or watershed to the prejudice of any person or property situated within the watershed from which the water is proposed to be taken or diverted.” (Emphasis added)

Frisco insists that § 11.085(a) refers to inter watershed transfers, not to inter basin transfers. According to Frisco’s view, § 11.085(a) prohibits transfer of water from the Elm Fork watershed even though the destination of the water is still within the Trinity River Basin.

It is not necessary for this Court, in this instance, to tread the miry bog between “watershed” and “basin.” See Johnson and Knippa, Transbasin Diversion of Water, 43 Texas L.Rev. 1035, 1048 (1965). Assuming arguendo that § 11.085(a) prohibits the transfer of water to Dallas, Frisco, as discussed previously, was unable to demonstrate its need for water from the Aubrey Project. Accordingly, Frisco has not shown that either it or others were prejudiced under the statute, if it were applicable, by transfer of water from the Aubrey Project to Dallas. Moreover, the Supreme Court has held that by § 11.085(a) (then art. 7589) the legislature “. . . intended to prohibit diversion out of the basin of origin only to the extent such diversion would impair water rights in existence at the time of the proposed diversion.” City of San Antonio v. Texas Water Commission, supra, at 759. Frisco had no rights in existence in the Elm Fork watershed at the time the diversion was proposed.

All of Frisco’s contentions have been considered, all are without merit, and all are overruled.

The judgment is affirmed.

Affirmed.

      . Frisco’s representative conceded in testimony before the Commission that Frisco’s strip annexation method would be illegal under current law, although it was lawful when undertaken.

      . It is of some interest that Frisco’s engineer testified that twenty-four square miles of Frisco’s eighty-eight square mile territory is also outside the Elm Fork watershed.


author: RALEIGH BROWN, Justice.

text:
    Walter E. COX, Appellant, v. W. James ROSSER, Appellee.
    No. 5275.
    Court of Civil Appeals of Texas, Eastland.
    March 15, 1979.
    Rehearing Denied April 5, 1979.
    Timothy E. Kelley, Dallas, for appellant.
    Charles R. Griggs, Sweetwater, for appel-lee.
   RALEIGH BROWN, Justice.

This is a legal malpractice case. Walter E. Cox alleged that W. James Rosser, an attorney employed by him, was negligent in failing to include in a deed from Cox to a third party, Joplin, an express lien to protect Cox. He further alleged that Rosser was negligent when he did not make Kim-ball, Inc. a party to the suit in which a partial foreclosure of a deed of trust was obtained on behalf of Cox and against Joplin. Rosser’s motion for summary judgment that Cox take nothing was granted. Cox appeals. We affirm.

Cox and Joplin were partners in the grocery business. On March 16, 1973, they purchased from Leslie N. Brown two grocery stores, one in Snyder, Texas and another in Big Spring, Texas. Both parties executed a deed of trust securing the payment of a $33,000 purchase money note covering both grocery stores.

On March 27, 1974, the partnership was dissolved. Under the dissolution agreement, Joplin assumed the operation of the Big Spring store; Cox, the Snyder store. Each assumed the accounts receivable and payable of the business acquired. Each assumed payment of one-half of the note payable to Brown and one-half the balance due to Kimball, Inc., a wholesale grocer.

Cox and wife on September 10, 1974, executed a deed, prepared by Rosser, conveying the Big Spring property to Joplin. No express lien was retained in the deed to secure payment by Joplin to Brown of his assumed one-half of the purchase money debt, but the assumption of that payment is expressed in the deed. It was Rosser’s failure to include an express lien to protect Cox in this deed that Cox alleges as one of the acts of negligence by Rosser.

On October 9, 1974, Joplin and his wife executed a deed of trust covering the Big Spring property securing payment of a note to Kimball, Inc. dated October 4, 1974, in the principal sum of $22,346.25. The note recites that it is “comprised of the principal balance of $18,530.50 due on a note dated March 10, 1973, said note signed by Bob F. Joplin and Walter E. Cox plus accrued interest to date in the amount of $322.94, plus open account balance in the amount of $3,492.81.”

Joplin defaulted on his share of payments of the purchase money debt to Brown, as well as for taxes which were unpaid and accrued by the Big Spring property. On February 21, 1975, Cox recovered a money judgment against Joplin in the amount of $3,293.41 which represented the payments that Cox had made on behalf of Joplin against the purchase money debt to Brown as well as for the taxes. The judgment decreed the foreclosure by Cox of his deed of trust lien against the Howard County property, being a partial foreclosure of the Brown deed of trust. The property was bought by Cox on May 6, 1975, at the subsequent sheriff’s sale. Cox contends that Rosser was negligent in not making Kimball, Inc. a party to the suit and the resulting partial foreclosure of the Brown deed of trust because on his purchase of the property there were two superior liens which were worth more than the fair market value of the property.

Leslie Brown foreclosed on his deed of trust on the Big Spring property and on August 3, 1976, bought it at public sale for $10,950.

In this suit, which was filed April 18, 1977, Cox contends that had Rosser included the express lien in the deed and subsequently had he joined Kimball, Inc. in the lawsuit against Joplin, Cox would have been in the position to own the property without being subject to the Kimball, Inc. lien.

Rosser challenges the jurisdiction of this court to entertain this appeal because of the failure of Cox to timely complete his cash deposit in lieu of cost bond with the clerk of the trial court.

Summary judgment was entered in the instant case on September 20, 1978. A receipt issued by the district clerk shows that the cost deposit was received on October 16, 1978. However, the certificate of the clerk as to cash deposit in lieu of appeal bond was not executed until October 31, 1978.

Rule 354(a), T.R.C.P., in part provides: In lieu of a bond, appellant may deposit with the clerk cash in an amount determined by the clerk to be sufficient to cover the estimated costs in the trial court and the cost of the statement of facts and transcript, less such sums as have been paid by appellant on the costs, and in that event the clerk shall file among the papers his certificate showing that the deposit has been made and copy same in the transcript, and this shall have the force and effect of an appeal bond. . (Emphasis added)

Rosser argues that the execution of the clerk’s certificate is a necessary part of the making of a cash deposit and it is necessary that this be accomplished timely. He urges that only until a determination by the clerk of the amount of cash necessary has been made, a deposit of that cash amount by the appellant with the clerk, and the filing by the clerk of his certificate showing that the deposit has been made will “have the force and effect of an appeal bond.” Since the certificate of the clerk was not executed prior to the expiration of thirty days after the rendition of judgment, Rosser contends it was not timely and thus, this court has no jurisdiction of the appeal citing Rule 356, T.R.C.P. We disagree.

Rule 354, T.R.C.P., provides the procedure for making an appeal bond or a deposit in lieu thereof. Rule 356, T.R.C.P., provides the time for filing a cost bond or making a deposit of cash or making an affidavit in lieu of bond. This rule in part states:

Whenever a bond for costs on appeal is required, the bond shall be filed with the clerk within thirty days after rendition of judgment or order overruling motion for new trial, or after motion for new trial is overruled by operation of law. If a deposit of cash is made in lieu of bond the same shall be made within the same period. (Emphasis ours)

We hold this rule requires the deposit of cash within thirty days after rendition of judgment and does not require the certification of such deposit by the clerk within such period. In the case at bar, the cash deposit was timely made, thus this court has jurisdiction.

Rosser urges that Cox’s cause of action was barred by the two-year statute of limitations, Article 5526, Tex.Rev.Civ.Stat.Ann. Cox does not challenge the appropriateness of such statute. Atkins v. Crosland, 417 S.W.2d 150 (Tex.1967). To support the granting of a summary judgment based on limitations, the court in Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.1975) said:

When summary judgment is sought on the basis that limitations have expired, it is the movant’s burden to conclusively establish the bar of limitations. .

This court in Crawford v. Davis, 148 S.W.2d 905 (Tex.Civ.App.—Eastland 1941, no writ) considered the problem of limitation as it applies to a legal malpractice case and stated the rule which had traditionally applied to malpractice actions against attorneys in Texas in the absence of fraud to be:

Corpus Juris says: “Where an attorney-at-law is guilty of negligence or breach of duty in performing services for his client, the client’s cause of action accrues and the statute [of limitations] begins to run at the time when the negligence or breach of duty occurs, not at the time when it is discovered, or actual damage results or is fully ascertained.” 37 C.J. p. 830, sec. 179. See also Fox v. Jones, 4 Willson Civ.Cas.Ct.App. § 29, 14 S.W. 1007; Kruegel v. Porter, Tex.Civ.App., 136 S.W. 801, affirmed, 106 Tex. 29, 155 S.W. 174; Thompson v. Barnard et al., Tex.Civ.App., 142 S.W.2d 238.

Our Supreme Court in Atkins v. Crosland, 417 S.W.2d 150 (Tex.1967) disapproved the foregoing language in Crawford to the extent it was in conflict with their opinion and said:

The general rule is that a cause of action sounding in tort accrues, in the absence of a statute to the contrary or fraudulent concealment, when the tort is committed. This rule obtains notwithstanding the fact that the damages, or their extent, are not ascertainable until a later date. Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 128 A.L.R. 757 (1940); Blondeau v. Sommer, 139 S.W.2d 223 (Tex.Civ.App.1940, writ ref’d); 54 C.J.S. Limitations of Actions § 168, p. 123; 34 Am.Jur. Limitations of Actions, § 160, pp. 126-127; 37 Tex.Jur.2d Limitations of Actions § 62, pp. 184-185. A legal injury must be sustained, of course, before a cause of action arises. It is said in 34 Am.Jur. Limitations of Actions § 160, p. 126:
“As regards the running of the statute of limitations applicable to torts, a cause of action accrues only when the force wrongfully put in motion produces the injury, the invasion of personal or property rights accruing at that time.” (citing the Quinn case, supra.)

And see Houston-American Finance Corp. v. Travis, 343 S.W.2d 323 (Tex.Civ.App.1960, writ ref’d n. r. e.). A helpful and often quoted test for determining when the cause of action accrues is found in 54 C.J.S. Limitations of Actions § 168, pp. 122-123:

“The test to determine when the statute of limitations begins to run against an action sounding in tort is whether the act causing the damage does or does not of itself constitute a legal injury, that is, an injury giving rise to a cause of action because it is an invasion of some right of plaintiff. If the act is of itself not unlawful in this sense, and plaintiff sues to recover damages subsequently accruing from, and consequent on, the act, the cause of action accrues, and the statute begins to run, when, and only when, the damages are sustained; and this is true although at the time the act is done it is apparent that injury will inevitably result.
“If, however, the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, even where little, if any, actual damage occurs immediately on commission of the tort * *.” See Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336 (1954).

In order to determine whether the two-year statute of limitations has run' in the instant case, we must determine when the cause of action arose. The foundations of Cox’s complaint in this tort action are the failures and omissions on the part of Rosser that permitted the Kimball lien to attain superiority over any lien of Cox; this by failing to include in the conveyance from Cox to Joplin a lien to secure the indebtedness assumed by Joplin and by failing to name Kimball, Inc. as a party to the Cox-Joplin lawsuit.

If Cox has sustained legal injury because of the alleged negligent acts of Rosser more than two years prior to April 18, 1977, limitations have run. Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336 (1954).

When Kimball, Inc. secured and filed for record its deed of trust from Joplin covering the Big Spring property, Cox sustained his legal injury resulting from the omission of his lien in the deed from Cox to Joplin. From that time, Kimball’s lien was superior to any lien claim of Cox and thus Cox was damaged by the subordination of any lien claim of his to that of Kimball, Inc. The deed of trust was executed on October 9, 1974, and filed for record October 21, 1974.

At the time the Cox-Joplin lawsuit was filed, the Kimball, Inc. deed of trust was on file. Any lien claim of Cox was at that time inferior to the Kimball lien. Cox had sustained his legal injury and limitations had begun to run. Even the judgment in the Cox-Joplin lawsuit was entered on February 21, 1975.

The instant case was not filed until April 18, 1977. The trial court was correct in granting Rosser’s motion for summary judgment based on the two-year statute of limitations unless the “discovery rule” applies.

The “discovery rule” has been applied in a limited fashion in Texas. It has been applied to toll limitations in medical malpractice cases. Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967); Hays v. Hall, 488 S.W.2d 412 (Tex.1972). It has also been applied in fraud cases, Ellison v. McGlaun, 482 S.W.2d 304 (Tex.Civ.App.—Amarillo 1972, writ ref’d n. r. e.), and in some defamation cases. Kelley v. Rinkle, 532 S.W.2d 947 (Tex.1976).

Considering the application of statutes of limitations and the “discovery rule,” the court in Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977) said:

For the purposes of application of statutes of limitations, a cause of action generally can be said to accrue at the time when facts come into existence which authorize a claimant to seek a judicial remedy. Williams v. Pure Oil Company, 124 Tex. 341, 78 S.W.2d 929 (1935). In personal injury actions, this means when the wrongful act effects an injury, regardless of when the claimant learned of such injury. An exception to this rule of accrual has been applied by this and many other courts in some situations in which a claimant was unable to know of his injury at the time of actual accrual; the exception is, known as the “discovery rule.” . . .
The result in “discovery rule” cases like Gaddis, Hays v. Hall and Grady v. Faykus [530 S.W.2d 151] stems from the recognition of the purposes of statutes of limitations; and, at the same time, recognition of what is not the statutes’ purpose, but an unfortunate, occasional by-product. The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975); Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 (1950). Statutes of limitations are not directed to the merits of any individual case, they are a result of the legislative assessment of the merits of cases in general. The fact that a meritorious claim might thereby be rendered nonassertible is an unfortunate, occasional by-product of the operation of limitations. All statutes of limitations provide some time period during which the cause of action is assertible. However, preclusion of a legal remedy alone is not enough to justify a judicial exception to the statute. The primary purpose of limitations, to prevent litigation of stale or fraudulent claims, must be kept in mind. See Note, 30 Sw.L.J. 950 (1976).

In the case at bar, when Cox executed the instrument of conveyance in September, 1974, he knew the instrument failed to include an express lien to protect him. He was also aware of the Kimball, Inc. debt prior to the taking of his judgment in the Cox-Joplin lawsuit. Cox has not alleged any act on the part of Rosser which prevented him from discovering any alleged wrongful acts on Rosser’s part, nor has Cox made any allegations of fraud. The court in Hurbrough v. Cain, 571 S.W.2d 216 (Tex.Civ.App.—Tyler 1978, no writ) quoting 37 Tex.Jur.2d Limitations of Actions, sec. 79, p. 221, said:

“Where plaintiffs’ pleading shows on its face that the suit was not filed within the statutory period, plaintiff is required ‘to allege such wrongful conduct’, as against the plea of limitation, as will entitle him to recover; and mere failure to disclose a cause of action, or mere concealment, is not fraudulent concealment. Owen v. King, 130 Tex. 614, 111 S.W.2d 695, 696. It is incumbent upon plaintiffs to ‘either allege a fraudulent concealment’ or facts which in law would take the cause of action out of the bar of the statute. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 723.” Shipp v. O’Dowd, supra, 454 S.W.2d 845.

We see no reason to extend the “discovery rule” and we hold it should not apply to toll the statute of limitations in the case at bar. See Minyard v. Southern Pipe & Supply Co., Inc., 563 S.W.2d 332 (Tex.Civ.App.—Dallas 1978, writ ref’d n. r. e.).

Our examination of the pleadings and the summary judgment proof establishes that without the application of the “discovery rule” Rosser has conclusively established that Cox is barred by limitations in his cause of action.

This ruling makes it unnecessary to consider appellant’s other points of error. The judgment of the trial court is affirmed.