text:
    Gene Allen McINTOSH, Appellant, v. The STATE of Texas, Appellee.
    No. 51574.
    Court of Criminal Appeals of Texas.
    March 17, 1976.

      Kenneth J. Douglas, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Kay Burkhalter, Asst. Dist. At-tys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury for illegally practicing medicine under Title 12, Chapter 6, Vernon’s Ann.P.C. (1925). The court assessed punishment at fifteen (15) days in jail and at a $200 fine; however, probation was granted for a period of thirty (30) days.

The order granting appellant misdemean- or probation was entered in the minutes of the court on November 14, 1974. On the same date appellant filed his original motion for new trial. On December 20, 1974, appellant filed his first and second amended motions for new trial. Another amended motion for new trial was filed on January 6, 1975. On January 13,1975, after a hearing, all motions for new trial were overruled by the trial court. On the same date notice of appeal was given. Notice of appeal does not appear to have been given at an earlier time.

At the outset we are confronted with the question of whether our jurisdiction has been legally invoked and the case is properly before us for review on the merits. We have decided that we lack jurisdiction and, accordingly, dismiss the appeal.

Article 42.13, Vernon’s Ann.C.C.P., the misdemeanor probation law, provides in Sec. 8(a) that “(a) A probationer, at the time he is granted probation, may appeal his conviction as in other cases. (Emphasis Supplied.) The use of the word “may” indicates that an appeal in such cases is not mandatory or automatic, and the use of the phrase “as in other cases” indicates that an appeal must be properly and timely perfected. Unfortunately, Article 42.13, supra, does not state how an appeal is to be perfected in a misdemeanor case where probation is granted.

Article 44.08(a), Vernon’s Ann.C.C.P., provides in part:

“It shall be necessary for defendant, as a condition of perfecting an appeal to the Court of Criminal Appeals, to give notice of appeal. . . .”

By this statute the Legislature has mandated that notice of appeal must be given in order that this court might review the merits of a criminal conviction.

In construing Article 44.08(a), supra, and Article 42.13, Sec. 8(a), supra, together, it is apparent that the Legislature intended that notice of appeal be given in a misdemeanor case where probation is granted in order to perfect an appeal to this court. The question which remains to be answered is when one must give notice of appeal in a case such as the instant one.

It is elementary that notice of appeal must be timely given to this court, otherwise the jurisdiction of this court is not legally invoked. The absence of such timely notice requires dismissal of an appeal.

Article 44.08(b) and (c) govern the time for giving notice of appeal. Article 44.08(b) provides:

“In cases where the death penalty has been assessed or in probation cases where imposition of sentence is suspended, such notice shall be given or filed within ten days after overruling of the motion or amended motion for new trial and if there be no motion or amended motion for new trial, then within ten days after entry of judgment on the verdict.”

It is apparent that this statute must govern the giving of notice of appeal in a misdemeanor case since we have been unable to find any other legislative enactment which governs the perfection of appeal in such cases.

If no motions for new trial are filed in a misdemeanor probation case, it would appear that notice of appeal must be given within ten days after entry of judgment; however, under the terms of Article 42.13, Vernon’s Ann.C.C.P. no judgment is to be entered in such cases. See Ex parte Smith, 493 S.W.2d 958 (Tex.Cr.App.1973); Coby v. State, 518 S.W.2d 829 (Tex.Cr.App.1975). Article 42.13, Sec. 4, supra, provides that the trial court shall record the fact and date that probation was granted on the docket sheet or in the minutes of the court.

Reading Article 42.13, Sec. 4, supra, and Article 44.08(b), supra, together, we hold that in misdemeanor cases where probation is granted notice of appeal must be given within ten days after entry of the written order granting an appellant probation if no motions for new trial are timely filed.

We must next consider when notice of appeal must be given in misdemeanor probation cases when motions for new trial are filed. In so doing, we must determine when motions for new trial must be filed in order to be timely.

Article 40.05, Vernon’s Ann.C.C.P., governs the time for filing motions for new trial. It provides in part:

“A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury, and may be amended by leave of the court at any time before it is acted on within twenty days after it is filed. Such mo- ' tion shall be presented to the court within ten days after the filing of the original or amended motion, and shall be, determined by the court within twenty days after the filing of the original or amended motion, but for good cause shown the time for filing or amending may be extended by the court, but shall not delay the filing of the record on appeal. . . .”

In Woods v. State, 532 S.W.2d 608 (Tex.Cr.App. delivered February 4, 1976), we held that the time in which to file a motion for new trial begins to run from the date the court grants probation. In the instant case the court granted probation on November 14, 1974, and appellant timely filed his original motion for new trial the same date. However, this motion was overruled by operation of law on December 4, 1974, twenty days after it was filed. St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App. 1969); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973). Notice of appeal, to have been timely, should have been given on or before Monday, December 16, 1974.

The amended motions for new trial which were filed on December 20, 1974, and January 6, 1975, were untimely. There is nothing in the record before us to show that the trial court, for good cause shown, extended the time for filing these amended motions under Article 40.05, supra. See Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.1974); Morton v. State, supra.

Since the notice of appeal was not given in the instant case within ten days after the original motion for new trial was overruled by operation of law, the jurisdiction of this court has not been legally invoked and the appeal must be dismissed.

The appeal is dismissed.

      . See Annotation 8, Article 44.08, Vernon’s Ann.C.C.P.

      .Article 44.08(c), (d) and (e) provide:
      “(c) In all other' cases such notice shall be given or filed within ten days after sentence is pronounced.
      “(d) The record on appeal will be deemed sufficient to show notice of appeal was duly given if it contains written notice of appeal showing a date of filing within the time required by law or if the record contains any judgment or sentence or other court order or any docket entry by the court showing that notice of appeal was duly given.
      “(e) For good cause shown, the trial court may permit the giving of notice of appeal after the expiration of such ten days.”
      For cases dealing with “good cause” see: Reed v. State, 481 S.W.2d 814 (Tex.Cr.App. 1972); Perez v. State, 496 S.W.2d 627 (Tex. Cr.App.1973); McDonald v. State, 501 S.W.2d 111 (Tex.Cr.App.1973); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App. 1973); Menasco v. State, 503 S.W.2d 273 (Tex.Cr. App.1973); McCuin v. State, 504 S.W.2d 512 (Tex.Cr.App. 1974); Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.1974); Martinez v. State, 511 S.W.2d 934 (Tex.Cr.App. 1974); Farris v. State, 514 S.W.2d 946 (Tex. Cr.App.1974); Garrison v. State, 517 S.W.2d 553 (Tex.Cr.App.1975); Chappell v. State, 519 S.W.2d 452 (Tex.Cr.App. 1974).

      . A judgment is defined in Article 42.01, Vernon’s Ann.C.C.P.

      . Article 42.13, Sec. 4, provides:
      “(a) When a defendant is granted probation under the terms of this Act, the finding of guilt does not become final, nor may the court render judgment thereon, except as provided in Section 6 of this Article.
      “(b) The court shall record the fact and date that probation was granted on the docket sheet or in the minutes of the court. The court shall also note the period and terms of probation, and the details of the judgment. The court’s records may not reflect a final conviction, however, unless probation is later revoked in accordance with Section 6 of this Article.”
      It is the better practice to enter a formal order granting probation as was done in the instant case. See Sections 2806-2808, Vol. 8, Willson’s Tex.Cr. Forms Ann. (7th Ed.— Morrison and Blackwell).

      . It should be borne in mind that the date probation is granted and the date the written order is actually entered may be different. The better practice is to enter the written order the same date probation is granted whether by the jury or the court.

      . See Morton v. State, supra.

      . Although Article 40.05 allows the trial court to extend the time for filing or amending a motion for new trial, such statute does not authorize the trial court to extend the time in which such motions can be determined. St. Jules v. State, supra; Morton v. State, supra. Consequently, a motion for new trial is overruled by operation of law twenty days after it is filed unless sooner overruled by action of the trial court.

      . Steffen v. State, 525 S.W.2d 162 (Tex.Cr. App.1975).


source: Caselaw Access Project

author: WARD, Justice.

license: Public Domain

text:
    H. MOLSEN & CO., INC., Appellant, v. Doyle RAINES et al., Appellees.
    No. 6465.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 31, 1975.
    Rehearing Denied Jan. 28, 1976.

      Grady, Johnson, Smith & Blakeley, Thomas A. Blakeley, Jr., Dallas, for appellant.
    John L. Shepherd, Seminole, for appel-lees.
   OPINION

WARD, Justice.

This is a venue case. Doyle Raines and R. A. Noret sued H. Molsen & Co., Inc. claiming the defendant breached a cotton crop contract by not paying all that was owed for the cotton which was produced and delivered by the plaintiffs. Plea of privilege asked transfer to Dallas County. The controverting affidavit sought to retain venue in Gaines County under Subdivisions 5 and 23 of 1995, Tex.Rev.Civ.Stat.Ann. After non-jury hearing, the trial Court overruled the plea. Though requested, findings of fact and conclusions of law were not filed. We affirm.

The cotton crop contract required that the entire production from two farms totaling 700 acres be sold to the defendant for the 1973-74 crop year. The contract had no provision as to the place or county where any obligation was to be performed by the defendant. The contract stated that the cotton was to be ginned at “Paymaster Gin, Sawyer Flat” which the extrinsic evidence showed to be located in Gaines County. The plaintiffs-appellees argue that this meant that they were to deliver the cotton to Molsen at the gin and in turn implied the obligation on the part of Molsen to accept delivery and pay for the cotton at the time and place of delivery, and that Gaines County venue could therefore be sustained under Subdivision 5. This same Subdivision 5 argument was advanced and rejected by the Amarillo Court of Civil Appeals where it construed a cotton crop contract similar to the one now involved. H. Molsen & Co., Inc. v. Harp and Lovelace, 516 S.W.2d 433 (Tex.Civ.App.—Amarillo 1974, no writ). The Court held that while an obligation which is to be performed by the defendant under a contract need not be expressly stated therein, and may be implied, from the four corners of the instrument, Subdivision 5 requires that the place of performance of the obligation which is the basis for the suit must be expressly provided for in the written contract and may not be fixed by implication. The same conclusion was reached in Gant Cooley Cotton Company, Inc. v. Thoms, 500 S.W.2d 537 (Tex.Civ.App.—Corpus Christi 1973, no writ): “It is immaterial that some obligations imposed by a written contract are required to be performed in a particular county; the controlling fact under Subdivision 5 is that the particular obligation sought to be enforced by the suit is required by the contract itself to be performed in a particular county, or at a definite place therein. * * * Venue under Subdivision 5, as amended in 1935, cannot be fixed by implication. * * * ” Appel-lees sued on the implied obligation to pay in Gaines County. Venue cannot be maintained under Subdivision 5, and Appellant’s relevant point is sustained.

This brings on a consideration of Subdivision 23 which the parties agree is the real issue on this appeal. The point presented is that the “Appellees are not entitled to sustain venue in Gaines County under Subdivision 23 of Article 1995 because they failed to prove the existence of a cause of action.” The wording of this point might leave something to be desired as to the exact nature of the Appellant’s attack, but with the prayer asking for rendition and the nature of the Appellant’s comprehensive brief, we hold that it is an assertion that the evidence is legally insufficient to support the trial Court’s implied finding that Appellees established a cause of action.

The appellate test of the evidence on a venue question is the same as in any other case and because of the no evidence point, we must disregard all adverse evidence and give credit to all evidence that is favorable to the Appellees and indulge every reasonable conclusion favorable to them. Banks v. Collins, 152 Tex. 265, 257 Under the portion of S.W.2d 97 (1953). Subdivision 23 involved, venue is proper in Gaines County if it be where the cause of action or a part thereof arose. All elements of the cause of action against the corporate defendant must be shown. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (1941); 1 McDonald, Texas Civil Practice, § 4.30.2 at 518. In this breach of contract action, the Appellant concedes the existence of all elements except for the meaning of the contract and the alleged breach.

The cotton crop contract plainly covered the Appellees’ entire cotton production for the crop year in question and thereunder Appellees delivered their total production of 220 bales. 118 of these bales were delivered without prejudice to this suit as these bales were all mieronaire scaled under 3.5. It is the interpretation of the contract as it refers to 3.5 mieronaire that is involved. Mi-cronaire refers to the strength of the cotton fiber and every bale is “miked” at government classing offices. “Good mike cotton” is that with the best spinning value, is on the scale at 3.5 to 4.9, and brings the best price. Cotton above 4.9 becomes coarse and calls for minor discounts in price. Cotton below 3.5 becomes thinner and weaker and brings progressively lower prices.

The part of the contract in dispute follows:

“The contract price shall be figured on net weight against the following prices:

“Oily bales 200 points discount.

“B. G.'s and Minus 2.4 Mieronaire will be at market price, also yellow stained."

As seen, no mention is made of any of that cotton scaled for readings above 3.5 micronaires, and Appellees contend that for that portion of the cotton which was sold under the contract calling for total production, market price at the time of delivery-should be paid.

The evidence at the hearing consisted of exhibits and the testimony of Appel-lee Raines, and that of J. L. Brett who was the Appellant’s agent. Raines testified to his executing the contract, and his delivery of all of the cotton production, and receipt for all payments except for that cotton with a mieronaire reading above 3.5. The Appellant’s proof consisted of evidence showing that the contractual term of 3.5 mieronaire was not used in its usual and popular sense, but was a technical trade term meaning good mike cotton and included all that miked between 3.5 and 4.9. Such evidence is admissible even though the writing is perfectly intelligible without it. 2 C. McCormick & R. Ray, Texas Evidence, § 1685 at 528.

Raines testified that “3.5” meant “3.5” to him and that at the time of executing the contract he was not concerned with the higher miked cotton because over his previous seven years of operations he hardly ever produced cotton with mieronaire readings above 3.5. Raines further stated that he had seen other cotton crop contracts and they all “plainly got it down 3.5 through 4.9”; that the normal market and newspaper quotations specify it as “3.5 through 4.9”; that the U. S. Government loan sheets listed it the same way — “they got it plainly 3.5 through 4.9”. The Appellant’s own forms for the 1973-74 Cotton Loan Rates for the Lubbock Territory carry the notation “3.5 through 4.9”. Thus, there was evidence which the trial Court accepted and which justified the implied finding that the language was used in the popular sense to mean 3.5 only.

H. Molsen & Co., Inc. v. Harp and Lovelace, supra, is not in conflict with this holding. There the farmers filed a declaratory judgment action and the dominant purpose of their pleadings was to establish that there was no contract between the parties requiring the plaintiffs to deliver any of the cotton which Molsen demanded. In addition, the Amarillo Court held there was no evidence to support any contract theory with a subsequent breach by Molsen. The parties there testified that it was not their intention to leave the price open. This evidence prevented the formation of an open price term contract because of the first sentence of Tex.Bus. & Comm.Code Ann. § 2.305(a).

Here, the pleadings alleged the breach of an open price term contract and the evidence justified the implied finding of the Court that the parties intended to enter a binding agreement covering the entire production with a portion being open priced. The Appellant’s “no evidence” point on Subsection 23 is overruled. The judgment of the trial Court is affirmed.


author: ROBINSON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Jack E. NELSON, Appellee.
    No. 8621.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      Underwood, Wilson, Sutton, Berry, Stein & Johnson, Amarillo (R. A. Wilson), Amarillo, for appellant.
    Jack Hazlewood, Amarillo, for appellee.
   ROBINSON, Justice.

Jack E. Nelson seeks workmen’s compensation for an on-the-job injury to his shoulder. The trial court, sitting without a jury, rendered judgment for Nelson based on findings of general injury and permanent partial disability. Texas Employers’ Insurance Association, the insurance carrier, appeals contending that the evidence does not support the trial court’s express finding that Nelson’s disability is not confined to his arm. Affirmed.

The insurance company relies on the holding in Aetna Casualty and Surety Company v. Moore, 361 S.W.2d 183 (Tex.1962). In Moore, a medical witness testified that the only injury suffered by the workman was a small chip fracture on the interior surface of the glenoid socket of the workman’s shoulder which would affect the use of his arm only and would not affect any other part of his body. Another medical expert testified that the workman also suffered an injury to the lower part of his back. The Supreme Court • found that the evidence raised a fact question concerning whether the disability, as opposed to the injury, was confined to the arm, and held that the Workmen’s Compensation Act limits recovery to a specific injury when the injury itself is not to a specific member enumerated in Section 12, Article 8306, Vernon’s Ann.Civ.St., but where the disability resulting therefrom is limited to the use of a specific member. This holding was applied in Brown v. Transamerica Insurance Company, 416 S.W.2d 902 (Tex.Civ.App.—Tyler 1967, no writ) and Prewitt v. Liberty Mutual Insurance Company, 461 S.W.2d 522 (Tex.Civ.App. — Waco 1970, writ ref’d n. r. e.).

The loss of the use of an arm is an injury for which specific compensation is provided by Section 12, Art. 8306, V.A.C.S. We therefore consider whether the evidence in the case before us is sufficient to support the finding that the disability resulting from Nelson’s shoulder injury is not limited to loss of use of his arm.

In March, 1974, Nelson, a carpenter, suffered the injury to his shoulder, as well as other injuries which did not result in permanent disability. Dr. Hyde, the orthopedic surgeon who attended him at the time of the injury, testified that he found an undisplaced linear fracture in the glenoid area of the right scapula. Dr. Hyde expected Nelson to have a normal recovery and testified that X-rays on August 9, 1974, disclosed no abnormality of position and no abnormality of any kind except a well healed fracture.

Another orthopedic surgeon, Dr. Ralph Citron, saw Nelson on December 5, 1974. Dr. Citron testified that his examination revealed a healed fracture involving the shoulder bone or scapula, with some distortion of the parts and some tilting of the glenoid fossa, a part of the shoulder bone that articulates with the arm bone. He testified that the fracture line went through the base of the acromion and the whole thing became somewhat depressed. This means that the shoulder blade was tilted downward. He testified that the boney prominence on Nelson’s right shoulder seemed to be larger than a similar boney prominence on the left shoulder. He said that that was because the shoulder was lower. The prominence was in the correct place, but the rest was not. The only continuing disability to labor testified to by Dr. Citron was an inability to use the arm in the overhead position. The motion of the shoulder was good except for abduction, the motion of bringing the arm out to the side and overhead, which was limited by about 30 degrees. This limitation means that Nelson was not able to bring his arm much beyond the right angle in the sideways position.

Nelson removed his shirt in the courtroom and the trial judge observed the condition of his shoulder. A photograph of Nelson’s shoulders is in evidence.

Nelson testified that because of his injury he was no longer able to perform his duties as a carpenter and went to work at a reduced wage as a school custodian on October 30, 1974. In addition to the problems which involve his attempt to use his arm, Nelson testified that his shoulder would give way because it was weak and also that he was required to carry things on his shoulder in the course of carpentering, but was now unable to carry them on his right shoulder.

The testimony of the injured party may outweigh that of a medical witness who is not confronted with the problem of living with the injury and who is generally not in as good a position as the injured party to evaluate the disabling effects thereof. The issue of disability may be established by the claimant alone, and this is true even though his testimony may be contradicted by medical witnesses. Connecticut Indemnity Company v. Henson, 388 S.W.2d 300, 304 (Tex.Civ.App.—Houston 1965, no writ). Travelers Insurance Company v. Wade, 373 S.W.2d 881 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.).

We conclude that there was some evidence that Nelson’s disability was not confined to his arm which raised an issue for determination by the trier of fact. After considering all of the evidence, including that opposed to the court’s finding, we conclude that the court’s finding was not so against the great weight and preponderance of the evidence as to be clearly wrong.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

On motion for rehearing, the insurance carrier contends that the workman, Nelson, judicially admitted that his only disability was in the use of his arm. The insurance carrier relies on the following testimony of Nelson on cross-examination:

Q. Now, in the deposition that we took last week from Dr. Citron, he says to us, Page 8, he says to us that your continuing trouble is that you are unable to place your arm in the overhead position; is that a true statement?
A. Yes sir.
Q. He says also that you are—the continuing impairment, physical impairment the he detects with you is in your ability to use that right arm; is that also a fair statement?
A. Yes sir.

The quoted questions reasonably can be interpreted to inquire whether the carrier’s attorney was correctly stating Dr. Citron’s deposition testimony. If Nelson so interpreted the questions, his affirmative answers could not be admissions concerning the extent of the disability which he, himself, experienced. In any event, we do not believe that the quoted testimony would amount to an admission that Nelson’s only continuing trouble was to his arm, especially in view of his prior testimony concerning problems which he was experiencing in the use of his shoulder. We are of the opinion that the quoted statement does not meet the standard set out in Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415, 419 (1960), that the statement relied upon as a judicial admission be deliberate, clear, and unequivocal. The motion for rehearing is overruled.


author: CIRE, Justice.

text:
    GROVE MANUFACTURING COMPANY, Appellant, v. CARDINAL CONSTRUCTION COMPANY et al., Appellees.
    No. 1289.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 4, 1976.
    Rehearing Denied March 3, 1976.

      J. Eugene Clements, Walter T. Weathers, Jr., Sewell, Junell & Riggs, Houston, for appellant.
    Frank J. Knapp, Stephen W. Hanks, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   CIRE, Justice.

This is an appeal from a summary judgment in favor of the third party defendants in a case in which an employee is seeking damages for injuries sustained in the course and scope of his employment. The employee, Wayne Kerry Guice, was injured while he was riding in a basket being lifted by a crane. The crane was operated by appellee Paulo Valadez, and both Valadez and Guice were employees of appellee Cardinal Construction Company. Guice filed a workmen’s compensation claim and subsequently entered into a settlement agreement with Cardinal’s compensation insurance carrier, the Texas Employers Insurance Association. He later brought suit in negligence and strict liability against the seller and lessor of the crane and against appellant Grove Manufacturing Company, the manufacturer of the crane. Appellant Grove impleaded appellees Cardinal and Valadez, alleging gross negligence and intentional tort and asking indemnity from Cardinal for any damages which might be assessed against Grove. Appellees moved for summary judgment on the grounds they were immune from liability by virtue of Guice’s acceptance of workmen’s compensation benefits, and the trial court granted the summary judgment. The third party action was then severed from the main lawsuit, and appellant perfected this appeal.

It is well settled in Texas that a defendant has no right of indemnity or contribution from a party against whom the injured party has no cause of action. City of Houston v. Watson, 376 S.W.2d 23, 33 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.). In this case the injured party, Guice, has contracted away his common law right to a cause of action for negligence against his employer and fellow servant:

When the employee and employer have elected to participate under the Workmen’s Compensation Law, they have voluntarily agreed that the rights and remedies otherwise existing under the common law shall not be operative, and that their respective rights shall be governed by the provisions of the compensation law.

Paradissis v. Royal Indemnity Co., 507 S.W.2d 526, 529 (Tex.Sup.1974). The Workmen’s Compensation Act exempts subscribing employers from all common law liability for negligence, with the sole exception of “certain exemplary damages in death cases specifically provided for by the Act.” Par-adissis, at 529. There is no exception made in the Act for common law liability for gross negligence when the injury does not result in the employee’s death. Since Guice has no cause of action for gross negligence against his employer or fellow servant, appellant therefore has no right of indemnification from them.

Appellant further urges, however, that Guice has a cause of action against appellees for intentional injury which is guaranteed to him by the Texas Bill of Rights, Tex.Const. art. I, § 13, and which cannot be legislatively abrogated. This is true, but the Workmen’s Compensation Act does not abrogate this right; the employee, in claiming and collecting under the Act in an accidental injury, declared that there was no intentional injury.

In Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, the difference, . between “accidental injuries,” and “intentional injuries,” is discussed and defined, Syl. 3-4, 185 S.W. page 560. They are inconsistent with each other. Appellant’s asserted claim for compensation for accidental injuries under the Workmen’s Compensation Act and his acceptance of benefits thereunder being entirely inconsistent with his present claim in this suit for intentional injury, such asserted claim m the compensation proceeding bars and destroys, through his election of remedies, the claim here, and creates both an estoppel and res adjudicata of such claim. Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377.

Jones v. Jeffreys, 244 S.W.2d 924, 926 (Tex. Civ.App.—Dallas 1951, writ ref’d). Guice’s cause of action against appellees for intentional tort has thus been “destroyed” by his claim for and acceptance of workmen’s compensation benefits.

Appellant complains that Tex.Rev.Civ. Stat.Ann. art. 8306, § 3 violates Article 1, section 13 of the Texas Constitution because it has arbitrarily deprived a third party of its common law rights to indemnity and contribution. As authority for this contention, appellant cites the case of Lebohm v. City of Galveston, 154 Tex. 192,275 S.W.2d 951 (1955). In that case Judge Calvert said, at page 954, “proper respect must be accorded the inferences we intend to give the word ‘arbitrarily’.”

Thus it may be seen that legislative action withdrawing common-law remedies for well established common-law causes of action for injuries to one’s “lands, goods, person or reputation” is sustained only when it is reasonable in substituting other remedies, or when it is a reasonable exercise of the police power in the interest of the general welfare. Legislative action of this type is not sustained when it is arbitrary or unreasonable.

Id. at 955.

The policy prompting the enactment of the Workmen’s Compensation Act is well known. It was done in the interest of the general welfare. Millers’ Mutual Casualty Co. v. Hoover, 235 S.W. 863 (Tex.Comm’n App.1921, jdgmt adopted); Southern Surety Co. v. Inabnit, 1 S.W.2d 412, 413-14 (Tex. Civ.App.—Eastland 1927, no writ); Batson—Milholme Co. v. Faulk, 209 S.W. 837, 841 (Tex.Civ.App.—Galveston 1918, writ ref’d); General Accident, Fire & Life Assurance Corp. v. Evans, 201 S.W. 705, 707 (Tex.Civ.App.—Dallas 1918, no writ).

Since one should not be able to accomplish indirectly what can not be done directly, the third party here has lost its right to indemnity or contribution from the injured employee’s employer. This, however, was not a purpose of the act, but only a necessary incident to its enactment. It can not, we believe, be held to have been arbitrary.

The rights of indemnity and contribution are not independent causes of action, but exist only as derivatives of the primary plaintiff’s cause of action. City of Houston v. Watson, 376 S.W.2d 23, 33 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.). The appellant would have a cause of action against appellee for indemnity or contribution only if Guice, the primary plaintiff, had a cause of action against the appellee. Since Guice has no cause of action, appellants in this case have no constitutional right which has, or could have been, abridged.

We find the appellees, Cardinal Construction Company and Paulo Valadez, are immune from common law liability either for gross negligence or for intentional tort, and therefore summary judgment in their favor was properly granted. The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    Harold C. DONAHUE et ux., Appellants, v. RATTIKIN TITLE COMPANY, Appellee.
    No. 17690.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 6, 1976.
    Rehearing Denied March 12, 1976.

      Zimring & Warner, and Frederic E. Zimr-ing, Dallas, for appellants.
    Law, Snakard, Brown & Gambill, and James W. Schell, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Harold C. Donahue ex ux. brought suit predicated upon breach of agency escrow contract against Rattikin Title Company. Premise for complaint was Rattikin’s payment from funds of plaintiff escrowed for a particular purpose without authorization and in disregard of restrictions plaintiff believes to be implied from the escrow contract.

Trial was by the court, without jury, following which a take nothing judgment was rendered for Rattikin. Plaintiff appealed.

We reverse the judgment.

Early in the year 1973 plaintiff owned a lot on which he desired to build his home. Not disputed is that the premises comprised his homestead. March 2,1973, he contracted with one Keith, a general contractor, to build the home. There is dispute which becomes immaterial when we treat the contract as for $60,000, immediately paid in full by note, secured by mechanic’s lien on the premises. Noted is that there was not a “retainage” of 10% of the contract price as required by V.A.T.S. 5469, “Lien claimants fund with preference to mechanics”. The full amount, by note, is to be considered paid in advance as of the date of the contract with Keith.

Immediately, on March 2, 1973, Keith transferred and assigned the plaintiff’s $60,000.00 note to Fort Worth National Bank. Keith made arrangements with the bank for his interim financing as he proceeded to perform the construction contract.

As the house was in the course of being constructed plaintiff made arrangements with Fort Worth Savings and Loan Association for permanent financing. There was a “deadline” for “closing” the transaction for permanent financing. This “deadline” was to be only a few days after August 23,1973, when Keith had completed plaintiff’s home and plaintiff was ready to move into it. At the “closing” a hiatus was found existent. Keith was insistent that plaintiff owed an amount over the $60,000.00 and that the lien should not be released until the excess was paid. Keith presented unpaid bills from sub-contractors, etc. owed for labor performed and material furnished in the building of plaintiffs home. Plaintiff took the position that Keith was fully paid, indeed overpaid on the contention that the house was actually built on a cost-plus contractual consideration; further that since Keith had contracted with the sub-contractors, etc., not the plaintiff, that Keith should pay the bills. There is concession that these sub-contractors’ bills were for services and materials actually necessarily supplied, that they were reasonable, and that they should have been paid. Plaintiff merely says that the obligations paid were not his obligations.

Fort Worth Savings and Loan did not desire to proceed with its contract for permanent financing unless there was resolution of the difficulty. Plaintiff, enlisting aid of attorney, proposed a contract between himself and Rattikin Title Company whereby his $16,000.00 in cash would be placed in escrow with Rattikin as agent for the purpose of affording security whereby Fort Worth Savings and Loan would proceed to enter into contract with plaintiff for permanent financing and in order to obtain an insured title. The purpose was accomplished, with written contract entered into between plaintiff and Rattikin. Fort Worth Savings and Loan was willing to proceed. Rattikin was willing to. issue a policy of title insurance. Plaintiff obtained his permanent financing, with “closing” handled by Rattikin as agent for the purpose, and Rattikin provided title insurance. Plaintiff moved into his home.

Thereafter Rattikin used funds from the “escrowed account” to pay itself its normal fees and charges for services in “closing” and for the title insurance, paid interest owed by plaintiff to the Fort Worth National Bank, and also paid sub-contractors who were owed money by the general contractor Keith.

Not involved in the instant case is a pending lawsuit between plaintiff and' Keith.

It is certain language of the escrow contract between plaintiff and Rattikin in which the dispute of the parties is founded. After making provision whereby plaintiff’s escrowed money might be disbursed upon agreement of settlement between plaintiff and Keith, but failing which would be deposited into the registry of the court where litigation was pending, the following sentence was appended: “Provided, however, the Second Party (Rattikin) may pay all or any part of the aforementioned sum to such parties as it deems necessary who have perfected valid mechanic’s or materialman’s liens on the subject property in order to avoid foreclosure thereof.”

Rattikin did pay from the plaintiff’s es-crowed funds amounts which satisfied the claims of various of the unpaid sub-contractors. Plaintiff’s claim is that these had not “perfected valid . . liens”, that Rat-tikin therefore violated the contract because the claimants paid had not perfected valid liens and that Rattikin is liable to him for the part of his escrow funds that it paid to such claimants.

We find, without difficulty, that the amount at issue is readily reducible to the amount of the claims of the sub-contractors of Keith who without written contracts with either the plaintiff or Keith performed labor and provided materials which went into the completed construction of plaintiff’s home. It wás these who were paid by Rattikin in the belief that to do so was authorized by plaintiff’s contract with them, but which payments are challenged, viz:

By findings of the trial court, as the fact finder, supported by evidence in the case, we are able to reduce the amount in dispute by deducting from plaintiff’s claim the following:- — (a) The amount paid to sub-contractors Chester Jackson and Cody & Cody Co., Inc., by Rattikin out of the escrowed funds. Plaintiff told them and consented that they have their bills paid from such funds by merely filing mechanic’s liens with the County Clerk. (On these there was consequent waiver on the part of the plaintiff that there be formal written notice and demand of him which sufficed to remove the amount so paid as any part of the issues in dispute.) — (b) That payment to the Fort Worth National Bank which was the amount owed it by plaintiff as interest on his note to Keith which was assigned to the bank. This was an obligation of the plaintiff which was extinguished by Rattikin’s payment. — (c) The indebtedness owned by plaintiff to Rattikin as “closing costs”, and for title insurance. This was rightfully the entitlement of Rattikin. Its payment by use of plaintiff’s escrowed funds did not result in injury or damage to him.

Had there been served upon the plaintiff the written notices relative to the $3,963.89 by Freed Appliance Distributors, et al., as required by V.A.T.S., Art. 5453, “Securing lien”, we could say the same as applied to plaintiff’s demand as in part of the foregoing paragraph, i. e. that plaintiff was not injured because he might not be deemed to have suffered injury by payments to these sub-contractors. This would be true because by a “sort of legal fiction” he would be treated exactly as though he had sufficient “retainage” funds of the general contractor, Keith, by which he could retire Keith’s indebtedness to the sub-contractors. In other words, he could extinguish the general contractor’s obligations to the sub-contractors and become subrogated to the sub-contractors’ rights by payment out of such amount so retained, with each instance of payment reducing the amount he owed Keith for completion of his contract by the amount so paid. Plaintiff disregarded his duty by law to make the 10% “retainage” and it would be for that reason his personal liability would exist. V.A.T.S. 5469, supra. That this would be the correct legal situation is adequately explained by the case of W & W Floor Covering Co. v. Project Acceptance Co., 412 S.W.2d 379 (Austin, Tex.Civ.App., 1967, no writ hist.).

Further, by the decision of that case, since plaintiff had paid Keith the full amount of the price for the general contract, so that there was not the 10% retain-age therefrom as was the requirement of law, then he would be liable to pay the sub-contractors, etc., exactly as though he had made the 10% retainage. In either event his obligation would be for the amount owing if there had been full compliance with Art. 5453 and its requirements as to “notices” and “filing” by the sub-contractors. Since plaintiff’s property was his “homestead” and since he had never made a written contract with any of the sub-contractors there could not be a valid lien which could attach on the property so that it would provide security for such amount owing even if a lien secondary to that granted to Keith might have been given. The only exposure of the plaintiff was to liability for in personam damages.

In the instant case there was no evidence either that Freed Appliance Distributors, et al., had or had not served upon the plaintiff the written notice required by Art. 5453. Nor was there any finding of fact which in any way bears upon that question.

To clarify: Freed Appliance Distributors, et al., neither had nor could they have had a “lien” nor a “valid lien” as applied to plaintiff’s “homestead”. Their contracts were with Keith, the general contractor who had received the lien. W & W Floor Covering Co. v. Project Acceptance Co., supra. Nevertheless, these sub-contractors had the right, by doing those things which would have created a “valid lien” had plaintiff’s property not been his homestead, to have personal judgments rendered against plaintiff for the several amounts of the debts owing to them by Keith. The damages recoverable would be treated as payable out of the 10% “retainage” which plaintiff should have kept for 30 days before delivering it up to Keith. Art. 5469. Since he did not make the “retainage” their right to judgment against the plaintiff in the same manner, to the same extent, and for the same reasons, would exist because of plaintiff’s disobedience of Art. 5469.

Even so, plaintiff’s suit is against Ratti-kin, its agent, and seeks in an action of principal vs. agent to establish that there was breach of contract by agent for which he should decreed liable, plus the damage resultant therefrom to the principal. On this see Restatement of the Law, Second, “Agency”, Ch. 13, “Duties and Liabilities of Agent to Principal”, Sec. 383, “Duty to Act Only as Authorized”, Sec. 400, “Liability for Breach of Contract”, and Sec. 402, “Liability for Misuse of Principal’s Property”. Under Sec. 383, Comment (b), discusses the situation where the agent misinterprets unambiguous instructions.

Of course, it is necessary in a case where the principal brings an action against his agent for damages (flowing from action of the agent in a mistaken interpretation of his duty under an unambiguous contract) to discharge the burden of pleading and proof that there has been a breach of contract in consequence of which damage has been sustained, and the amount thereof. The question as applied to the suit of plaintiff against his agent Rattikin is whether plaintiff has discharged his burden of proof. 23 Tex.Jur.2d, p. 156, “Evidence”, Sec. 112, “(Party on whom burden rests) — Plaintiff”. We find that plaintiff discharged the burden.

Port Worth Savings and Loan refused to go forward unless the contract was made. Rattikin was concerned and it is obvious that it would not issue a policy of title insurance. Plaintiff insisted that he was not liable for the bills of the sub-contractors, etc., and to allay the fears of Rattikin and Fort Worth Savings and Loan, submitted the escrow agreement drawn by his attorney. The agreement was accepted and signed by Rattikin and all parties felt secure. Thereby was title insurance and permanent financing secured. The contract meant different things to the parties, but it was not ambiguous. In these circumstances Rattikin was bound by its assent and entry into the contract despite the fact that it erred in its interpretation. See Williston on Contracts, Third Edition, p. 365, “Interpretation and Construction of Contracts”, Sec. 606, “Formal and Written Contracts May Exist Though Parties Attach Different Meanings to the Language.” Hence the contract, being unambiguous, was binding upon the parties.

There was breach of contract by Rattikin whereby it is shown that plaintiff sustained damages. From what we have said plaintiff showed damages to the extent of $3,963.89 of the amount Rattikin had paid. Only by the principle of law relative to “confession and avoidance” could Ratti-kin escape the liability. Clearly the only means of discharging that burden would be for Rattikin to prove and obtain finding that it was an indebtedness to the sub-contractors enforceable against the plaintiff which was discharged as the obligation of the plaintiff by its disbursements from the escrowed funds.

If Rattikin had shown that the payee sub-contractors had served notices by Art. 5453 upon the plaintiff then the existence of plaintiff’s liability would have been demonstrated. W & W Floor Covering Co. v. Project Acceptance Co., supra. Rattikin would have thereby shown that it was entitled to prevail because its disbursements had paid obligations of the plaintiff.

It is because of the failure of Rattikin’s evidence to make the proof that there had been the notices by Art. 5453 required to be served upon the plaintiff that we believe the judgment should be reversed. Though there might have been shown the justification for Rattikin’s disbursements such was not shown because it failed to discharge the burden of proof to show an absence of injury to plaintiff by proving plaintiff’s liability to the sub-contractors. Rattikin’s failure of proof of the defense was because it did not show that notices, required as a condition precedent to plaintiff’s liability to the sub-contractors, had actually been served upon the plaintiff.

The judgment of the trial court is reversed. Judgment is here rendered for plaintiff Harold C. Donahue and his wife Jacqueline L. Donahue against Rattikin Title Company for the amount of $3,963.89, with interest thereon at the rate of 6% from the April 17, 1975 date of the judgment of the trial court until September 1, 1975, and thereafter at the rate of 9%. V.A.T.S. Art. 5069-1.05, “(Interest) — Rate of judgments”.


author: McDONALD, Chief Justice.

text:
    Jerry MILLER, d/b/a the Lemon Twist Club, Appellant, v. Al REINERT, Appellee.
    No. 5537.
    Court of Civil Appeals of Texas, Waco.
    Feb. 12, 1976.
    Rehearing Denied March 18, 1976.
    Randy Taylor, Dallas, for appellant.
    Graves, Dougherty, Hearon, Moody & Garwood, R. James George, Jr., Austin, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Miller from judgment sustaining defendant Reinert’s plea of privilege in a libel case.

Plaintiff Jerry Miller d/b/a The Lemon Twist sued The Texas Monthly, Michael R. Levy its publisher, William Broyles its Editor, and Al Reinert in Dallas County alleging that plaintiff is the sole proprietor of a business known as “The Lemon Twist”; that the nature of such business is the selling of beer, wine and mixed drinks to the public; that defendant Texas Monthly in its December 1973 issue published an article written by defendant Reinert entitled “Hit Man” which purported to be an examination of the world of the contract killer; that the article identified The Lemon Twist as the place Stanley Cook, king of Texas hit men, had left on August 30, 1972 when he was murdered; that the article further said: “If you want to know about organized crime in Texas, you’ll learn a lot more by going somewhere like The Lemon Twist Lounge in Dallas, and just hanging out for three hours”. Plaintiff further alleged the article was circulated; was actionable per se; and damaged plaintiff $120,000. Plaintiff further alleged malice or gross negligence, and prayed for exemplary damages.

Service was obtained on defendants Texas Monthly, Levy and Broyles who filed pleas of privilege to be sued in Travis County. Plaintiff controverted, and such pleas of privilege were overruled by the trial court.

Thereafter service was obtained on defendant Reinert, who filed his plea of privilege to be sued in Harris County. Plaintiff controverted asserting venue maintainable in Dallas County under exception 29 and 29a Article 1995 VATS.

Trial was before the court which granted defendant Reinert’s plea of privilege, and ordered the case as to Reinert transferred to Harris County.

Plaintiff appeals on 2 points contending:

1) The trial court erred in sustaining defendant Reinert’s plea of privilege because plaintiff Miller properly carried his burden by plea and proof, of showing a cause of action under Subdivision 29, Article 1995 VATS, which allows plaintiff to maintain suit in the county in which he resided when the cause of action accrued.
2) The trial court erred in sustaining defendant Reinert’s plea of privilege because plaintiff established venue in Dallas County as to codefendant Texas Monthly under subdivision 23 and/or 29 Article 1995, and therefore under subdivision 29a may maintain suit as to defendant Reinert because he is a necessary party.

The Texas Monthly in its December 1973 issue published an article called “HIT MAN”, written by defendant Reinert. The article discussed organized crime, the Mafia, and “contract killers”; identifies Stanley Cook as king of the hit men; and relates that he was killed shortly after leaving the Lemon Twist Lounge. The article states: “If you really want to know about organized crime in Texas you’ll learn a lot more [than you can from reports from the Attorney General and Department of Public Safety] by going somewhere- like the Lemon Twist Lounge up in Dallas, and just hanging out for three hours”.

Subdivision 1995 VATS provides “a suit for damages for libel or slander shall be brought, and can only be maintained in the county in which plaintiff resided at the time of the accrual of the cause of action, or in the county where defendant- resided at the time of filing suit * * * .

Article 5430 VATS defines “A libel is a defamation expressed in printing or writing * * * tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury”.

Newspapers, Inc., v. Matthews, 161 Tex. 284, 339 S.W.2d 890 holds that the libel of a business is not actionable; that the asserted libel must refer to some ascertained or ascertainable person and that person must be the plaintiff; that it is not necessary that the individual referred to be named, if those who knew and were acquainted with the plaintiff understand from reading the publication that it referred to the plaintiff.

In the case at bar the burden of proof was on the plaintiff. The article asserted to be libelous names only “The Lemon Twist” and “The Lemon Twist Lounge”, and does not mention or name plaintiff. The trial court was authorized to refuse to believe plaintiff’s name was so closely associated with the name of the business that the reference to the business necessarily is a reference to him. The trial court was authorized to hold as it did.

Point one is overruled.

Subdivision 29a provides that when there are 2 or more defendants in a suit, and such suit is lawfully maintainable in the county of suit against any of such defendants, then such suit may be maintained against all necessary parties thereto.

Plaintiff could obtain full relief in his suit against The Texas Monthly, Levy and Broyles. Thus defendant Reinert is not a necessary party within the meaning of Subdivision 29a, and is entitled to be sued in the county of his residence. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758; Mims v. East Texas Production Credit Assn., CCA, Er. Dismd., 496 S.W.2d 682; Skeen v. I. M. Mouser, CCA, NWH, 530 S.W.2d 918.

Point 2 is overruled.

AFFIRMED.


author: SHANNON, Justice.

text:
    In re Ramona J. IVEY, Appellant.
    No. 12338.
    Court of Civil Appeals of Texas, Austin.
    Feb. 18, 1976.
    Rehearing Denied March 3, 1976.
    James Y. Bryce, Austin, for appellant.

      C. Ned Granger, Travis County Atty., Phil R. Lerway, Asst. County Atty., Austin, for appellee.
   SHANNON, Justice.

Appellant, Ramona J. Ivey, appealed to the district court of Travis County to set aside the judgment of the county court of Travis County which committed her to the Austin State Hospital for a period not exceeding ninety days. After trial to the district court, judgment was entered affirming the judgment of the county court.

The proceeding was commenced in the county court by the filing of an application for temporary hospitalization by appellant’s brother, Arthur Williams. In the application Williams averred, among other things, that he believed appellant to be mentally ill and that for appellant’s own welfare and protection she required treatment in a mental hospital.

As previously written, the county court entered judgment committing appellant to the Austin State Hospital. Appellant appealed from that judgment to the district court of Travis County.

At the hearing in district court, the State called one witness, Oscar Yero, a psychiatrist who had treated appellant since her commitment to the Austin State Hospital.

At the time of the commitment and for an indefinite time previously, appellant suffered a mental derangement diagnosed, “schizophrenic chronic undifferentiated type.” The severity of her illness was categorized by the witness as “somewhere between moderate and severe.” The witness was of the opinion that under favorable circumstances appellant’s illness could be controlled away from the mental hospital. The most important of those “favorable” circumstances was that appellant take prescribed medication regularly. In previous instances, because appellant refused to take the medication, her condition had worsened and she had been readmitted to a mental institution. Including the present commitment, appellant has been admitted to the Austin State Hospital four times and she has been admitted to other mental hospitals before and between admissions to the Austin State Hospital.

Upon request, the district court filed findings of fact and conclusions of law. The court found that appellant was mentally ill, and that her condition required observation and treatment in a mental hospital for her own welfare and protection. The court also found that appellant did not require hospitalization for the protection of others.

The court concluded, among other things, that the standard of proof required of the State in determining the mental condition of appellant and the necessity for commitment of appellant was “by a preponderance of the evidence.” The court was of the opinion that Tex.Rev.Civ.Stat.Ann. art. 5547-38 (1958) was constitutional on its face and as applied to appellant. The court concluded further that, since appellant was discharged as no longer requiring hospitalization on March 25, 1975, the cause was moot.

Appellant assails the judgment by five points of error, the first point being that the district court erred in concluding that the cause was moot. Point of error two claims the court erred in concluding that the standard of proof required of the State in determining the mental condition and need for hospitalization of appellant was by a preponderance of the evidence. The third point complains that the court’s finding that appellant required observation and treatment in a mental hospital was contrary to the great weight and preponderance of the evidence. The fourth and fifth points of error challenge the constitutionality of Tex.Rev.Civ.Stat.Ann. art. 5547-38 (1958) and Tex.Rev.Civ.Stat.Ann. art. 3930(b), § 1, subd. B(1)(a)(v) (Supp.1974—75.)

By counterpoint, the State argues that the appeal is moot and urges that the appeal be dismissed. Appellant claims that even though she was dismissed from the hospital subsequent to the entry of the judgment of the district court and prior to the filing of the appeal in this Court, her appeal is not moot because the stigma of the commitment proceedings and the likelihood of future similar proceedings against her are still unsettled and may be quieted only by an opinion of this Court.

In general, it may be said that an appellate court will not review a judgment if the controversy has been terminated. In such instances the case is considered moot. Appellant, however, claims that her appeal falls within two exceptions to the doctrine of mootness.

The first of the exceptions, says appellant, is that courts will decide disputes that might otherwise appear to be moot if the circumstances giving rise to the original controversy are “capable of repetition, yet evading review.” Southern P. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); In re Ballay, 157 U.S. App.D.C., 59, 482 F.2d 648 (1973). In Southern Pacific the United States Supreme Court allowed review of an Interstate Commerce Commission order which had expired. The Court stated that the question involved was a continuing one and that the brief duration of the order ought not to operate to deprive the litigant of an opportunity for redress to the courts. In Roe the plaintiff, who challenged the Texas abortion statute, was no longer pregnant at the time of the hearing in United States district court. The Supreme Court observed that the nine-month gestation period is so short that pregnancy will usually be ended before the appellate process is complete. [“If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied.”] The United States Court of Appeals in Bal-lay applied the “capable of repetition, yet evading review” exception in an appeal from an order of involuntary mental commitment where the appellant was released from the mental hospital before the appeal could be heard.

The second exception urged by appellant to the usual rule of mootness is the so-called “collateral consequences doctrine.” That doctrine may be described as one which may cause a court to entertain and enter judgment in a cause which might otherwise be considered moot if there will be continuing collateral consequences which will be harmful to the litigant if no judgment were entered. See In re Ballay, supra; Carrillo v. State, 480 S.W.2d 612 (Tex.1972). Appellant states that the collateral consequences of being found mentally ill and a threat to one’s own welfare and safety cannot be denied. Appellant says that the present commitment is a “blot” on her record and is not removed by her release from the Austin State Hospital. The commitment, maintains appellant, will affect her ability to obtain employment and she says the social stigma attending civil commitment is unquestionable.

We are of the opinion that the appeal is moot. After judgment was entered and appellant’s motion for new trial was overruled, appellant was discharged from the Austin State Hospital as no longer requiring hospitalization. The existence of an actual controversy is essential to the exercise of appellate jurisdiction. If the controversy has terminated, the appeal is moot. State v. Society for Friendless Children, 130 Tex. 533, 111 S.W.2d 1075 (1938); City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939). When an appeal is moot, the judgment is set aside and the cause is dismissed. Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863 (1943); Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952); Poole v. Giles, 151 Tex. 224, 248 S.W.2d 464 (1952).

Though her commitment terminated on March 25, 1975, appellant insists that we pass on whether or not the district court applied the correct standard of proof in ordering her commitment and whether or not two statutes involved were constitutional. To pass on such issues in the absence of appellant’s commitment would constitute the rendition of an advisory opinion on abstract questions of law. The Supreme Court has repeatedly held that under the Constitution of Texas, the judicial power does not embrace the giving of advisory opinions. Firemen’s Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex. 1968); United Services Life Insurance Co. v. Delaney, 396 S.W.2d 855 (Tex.1965); Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933); Harris v. Texas Vending Commission, 486 S.W.2d 623 (Tex.Civ.App.1972, no writ).

No reasons exist for the application in this appeal of either of the claimed exceptions to the general mootness rule. It should be observed that appellant has shown no Texas authority, nor have we found such authority, for the “capable of repetition, yet evading review” exception. It should be further observed that appellant was discharged from the Austin State Hospital as no longer requiring hospitalization before the record was filed in this Court. Under the Rules of Civil Procedure, appellant might have filed the record in this Court prior to her discharge. Instead, the record was filed fifty-nine days after the motion for new trial was overruled. Appellant could have moved for an advance in the submission and oral argument. See Tex.R.Civ.P. 410. If appellant had acted promptly in prosecuting her appeal, this Court might have heard and decided the cause before it became moot.

Likewise, no good reason exists for the application of the “collateral consequences” exception to the mootness doctrine. As stated above, upon determination that an appeal is moot the rule in this State is that the judgment of the lower court is reversed and the cause is dismissed. Such procedure quite as effectively erases the “collateral consequences” of the judgment as would the reversal of the judgment upon the basis of procedural error. In addition, in the case at bar appellant has been placed in various mental hospitals many times other than the one time which forms the basis for this appeal. To borrow appellant’s phrase, her other hospitalizations would remain as “blots” on her record since the recordation of those hospitalizations would not be removed by a reversal of the judgment in this appeal for possible procedural error.

Because the appeal is moot, all previous orders are set aside, including the judgment of commitment, and the cause is dismissed.

Reversed and Cause Dismissed.

      . See City of Austin v. Texas Public Employees’ Ass’n, 528 S.W.2d 637 (Tex.Civ. App.1975, no writ). In that appeal the opinion of this Court was handed down three days after the entry of the judgment of the trial court.


text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Carla Deronda GREGORY et al., Appellees.
    No. 1131.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 18, 1976.

      Dixie Smith, H. Lee Lewis, Jr., Fulbright & Jaworski, Houston, for appellant.
    Tom Edwards, Kronzer, Abraham & Watkins, Houston, for appellees.
   CIRE, Justice.

Carl Albert Gregory, an employee of Dow Chemical Company, died as a result of injuries he received when he fell or jumped from the roof of a building while working on his employer’s premises. The Texas Employers’ Insurance Association, Dow Chemical’s workmen’s compensation carrier, appealed to the district court from an award .by the Industrial Accident Board of death benefits to Gregory’s two daughters. The trial court awarded the claimants full compensation benefits, and the TEIA appealed. This court reversed and rendered in favor of TEIA on the basis that the evidence showed as a matter of law that Gregory’s death was suicide. 521 S.W.2d 898. The supreme court reversed, stating “We do not believe that the evidence of the position of Gregory’s body during the second half of its fall and its distance from the building upon impact establishes as a matter of law that Gregory purposely jumped from the roof with the intention of injuring himself. . [W]e do not believe that it is the only possible conclusion warranted by the facts”. The case has been remanded to us for consideration of appellant’s further points of error challenging the jury’s verdict as being against the great weight and preponderance of the evidence and also challenging the trial court’s exclusion of certain evidence.

The supreme court found that the testimony of the eye witness and the opinions of the expert witness did not establish suicide as a matter of law. Since there is, therefore, no direct evidence which conclusively establishes that Gregory’s death was suicide, we must consider whether the other evidence presented was sufficient to justify the jury’s finding that it was accidental. The only other evidence consisted of testimony by Gregory’s family, neighbors, and co-workers relevant to his state of mind. Some witnesses testified that Gregory was making plans for the future; others testified that he had been depressed and despondent. There was some evidence of Gregory’s prior history of emotional illness. Texas Employers’ Insurance Association v. Gregory, 521 S.W.2d 898, 901-902 (Tex.Civ. App.—Houston [14th Dist.]), rev’d, 530 S.W.2d 105 (Tex.Sup.1975). We think this conflicting evidence concerning Gregory’s state of mind immediately prior to his death could reasonably have led the jury to conclude that his death was either accidental or suicidal; their finding that Gregory did not commit suicide was not contrary to the' great weight and preponderance of the evidence.

Appellant asserts the trial court committed reversible error in. excluding from the evidence a certified copy of a death certificate showing a finding by a justice of the peace that Gregory’s death was probably suicide. The Sanitary Code, Tex.Rev.Civ.Stat.Ann. art. 4477, Rule 54a provides that a certified copy of such a record “shall be prima facie evidence in all courts and places of the facts therein stated.” As provided by the Sanitary Code, Rule 41a, the death certificate contained, in addition to “such facts ... as will be of assistance in identifying the deceased”, a notation that the death was “(probably) suicidal.” This. notation is not a “fact” as contemplated in Rule 54a, but is, rather, an opinion of the justice of the peace. The justice of the peace did not testify; he was not present at Gregory’s death, and there was no showing of the basis on which he reached his conclusion that Gregory’s death was probably suicidal. In our opinion the court did not err in excluding, the certificate. See Armstrong v. Employers Casualty Co., 357 S.W.2d 168, 169-170 (Tex.Civ. App.—Waco 1962, no writ).

Appellant also contends that the trial court committed reversible error in excluding records of Gregory’s hospitalization in 1961 for psychiatric treatment. The court did admit a portion of hospital records concerning Gregory’s hospitalization in 1968.

Those records include references to Gregory’s hospitalization and treatment in 1961:.

The informant states that he tried to kill himself prior to his admission here in 1961. He received electroshock therapy in 1961 as far as the informant can remember.

In view of the fact that this evidence was before the jury, we hold that the error, if any, of the trial court in refusing to admit the hospital records from 1961 was not reversible error.

The judgment of the trial court is affirmed.

CURTISS BROWN, C. J„ not participating.


author: CURTISS BROWN, Chief Justice.

text:
    Michael E. JEFFCOAT, a minor, by next friend, Appellant, v. Dr. John R. PHILLIPS et al., Appellees.
    No. 1170.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 18, 1976.
    Rehearing Denied March 17, 1976.

      John H. Holloway, Houston, for appellant.
    F. Walter Conrad, Baker & Botts, Sandra K. Foster, W. N. Arnold, Jr., Fulbright & Jaworski, Howard S. Hoover, Hoover, Cox & Miller, Bass C. Wallace, Andrews, Kurth, Campbell & Jones, Houston, for appellees.
   CURTISS BROWN, Chief Justice.

This suit arises out of an appendectomy performed on Michael Jeffcoat on September 25, 1961. The patient (Jeffcoat or appellant) brought suit against Dr. John R. Phillips (Dr. Phillips), Medical Arts Hospital, Inc. (Hospital) and Harris County Medical Society (Society). As against Dr. Phillips, plaintiff alleged lack of informed consent, medical malpractice, and fraud. He asserted that the surgery was unnecessary and that he was left with an excessively large scar on his abdomen. With respect to the Society plaintiff claimed fraud and negligence, particularly with respect to information alleged to have been transmitted to the parents of the patient. The pleading against the Hospital was predicated upon alleged négligence in permitting the doctor the use of its facilities when it knew or should have known of Doctor Phillips’s alleged incompetence.

Interlocutory summary judgments were entered in favor of the Hospital and the Society. As to Dr. Phillips the case was tried on the merits to a jury. Based upon the jury verdict answering all liability and damage issues in favor of the defendant the court granted a final take-nothing judgment in favor of all defendants. Jeffcoat has duly perfected this appeal.

With respect to the summary judgments granted, the requirements which must be met to entitle movants to such summary judgments are well settled. The burden rests on the movants to show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.Sup.1970). Keeping this heavy burden in mind we review the granting of the interlocutory summary judgments on behalf of the Hospital and the Society.

With respect to the Society, the mother of Jeffcoat testified (by summary judgment evidence in the form of a deposition) that on May 25, 1960, immediately preceding the operation by Dr. Phillips on her daughter, Patricia, she called the telephone number of the Harris County Medical Society. An unidentified woman answered. When Mrs. Jeffcoat inquired about Dr. Phillips the woman left the phone and came back shortly and told her that “he was one of the finest surgeons in Harris County,” that “she would not be afraid of him,” that “he had a real good reputation,” and that “he didn’t have any bad reports against him.” No further information from the person answering the phone was imparted to her. The Executive Secretary of the Society at the time of this alleged telephone conversation unequivocally stated in an affidavit in support of the motion that no person employed by the Society at the time was authorized to express an opinion as to the competency or reputation of Dr. Phillips as a physician, or to provide information as to any complaints that may have been made against him. His affidavit further states that, on the contrary, persons answering the phone at the Society had been specifically instructed not to provide such information. Testimony of an interested party will generally not support a summary judgment. This affidavit was from such a party. However, the reasonableness of the statement made would seem to meet the test of Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942). It was not contradicted by any other witness or attendant circumstances, and the same is clear, direct and positive and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon. Id. at 908.

In any event the Society was entitled to summary judgment on the basis of the undisputed summary judgment evidence without reliance upon the affidavit of the Executive Secretary. Fraud is the misrepresentation of a past or present material fact upon which a plaintiff relies to his detriment. Gaut v. Quast, 505 S.W.2d 367 (Tex.Civ.App. — Houston [14th Dist.]), writ ref’d n. r. e. per curiam, 510 S.W.2d 90 (Tex.Sup.1974). The Society had the burden of establishing as a matter of law that, as against it, appellant had no cause of action. Gaddis v. Smith, 417 S.W.2d 577 (Tex.Sup.1967). To be actionable fraud the misrepresentation complained of must concern a material fact as distinguished from a mere matter of opinion, judgment, probability, or expectation. Ryan v. Collins, 496 S.W.2d 205 (Tex.Civ.App. — Tyler 1973, writ ref’d n. r. e.); Fossier v. Morgan, 474 S.W.2d 801 (Tex.Civ.App. — Houston [1st Dist.] 1971, no writ). The representations testified to by Mrs. Joe Jeffcoat — that Dr. Phillips was “one of the finest surgeons in Harris County,” that she “would not be afraid of him,” that “he had a real good reputation,” and that “he didn’t have any bad reports against him” — are nothing more than matters of opinion, judgment, or expectation. Appellant emphasizes the statement relating to “bad reports.” What constitutes a “bad” report is a matter of opinion and judgment.

Furthermore, the summary judgment proof establishes non-reliance as a matter of law. The sole contact with the unidentified person answering the phone was made approximately sixteen months before the surgery in question. When directly asked how she had relied on the statement made to her on the telephone Mrs. Jeff coat replied, “I let Dr. Phillips operate on my daughter.” Despite the fact that she was dissatisfied with the incision made by Dr. Phillips on her daughter some sixteen months before the operation in question, she nevertheless permitted him to perform the surgery on her son. This permission was given after she had notice of, and had challenged the necessity for, the long incision on her daughter. Thus the Society showed lack of reliance as a matter of law. Jeff coat’s points of error relating to the Society are overruled.

The summary judgment in favor of the Hospital was justified and is affirmed. In general a hospital is liable under respondeat superior for injuries negligently inflicted by an employee of the hospital acting within the course and scope of his employment. Howie v. Camp Amon Carter, 470 S.W.2d 629 (Tex.Sup.1971). Secondly, a hospital may be liable for the breach of duties which the institution owes directly. Medical & Surgical Memorial Hospital v. Cauthom, 229 S.W.2d 932 (Tex.Civ.App.-El Paso 1949, writ ref’d n. r. e.). For example, hospitals may be liable for negligence in selecting or retaining an agent or employee. Sandone v. Dallas Osteopathic Hospital, 331 S.W.2d 476 (Tex.Civ. App.-Amarillo 1959, writ ref’d n. r. e.); Steele v. St. Joseph’s Hospital, 60 S.W.2d 1083 (Tex.Civ.App.-Fort Worth 1933, writ ref’d); Annot., 51 A.L.R.3d 981 (1973). A hospital may also be liable for providing defective or ineffective facilities or equipment when its negligence proximately results in injury or death. See Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex.Sup.1975); Bellaire General Hospital, Inc. v. Campbell, 510 S.W.2d 94 (Tex.Civ. App.-Houston [14th Dist.] 1974, writ ref’d n. r. e.).

The general rule is that a hospital is not liable for injuries resulting from the negligent acts or omissions of independent physicians. No respondeat superior liability attaches where the physician is an independent contractor and not an employee or servant of the hospital. Newton County Hospital v. Nickolson, 132 Ga.App. 164, 207 S.E.2d 659 (1974).

Appellant directs our attention to Penn Tanker Co. v. United States, 310 F.Supp. 613 (S.D.Tex.1970); Purcell v. Zimbelman, 18 Ariz.App. 75, 500 P.2d 335 (1972), and Joiner v. Mitchell County Hospital Authority, 125 Ga.App. 1, 186 S.E.2d 307 (1971), aff’d, 229 Ga. 140, 189 S.E.2d 412 (1972), as authority for the proposition that when a hospital knows or should know of the incompetency of- an independent-contractor physician using its facilities, then liability on the hospital may attach. In the Joiner and Penn Tanker cases the physicians were in fact provided by the hospital and not chosen by the patient. Therefore, these cases do not support the proposition asserted. Purcell tends to be supportive of appellant’s position. However, in that case the evidence established that the American Osteopathic Association had established accreditation requirements which imposed an obligation on the governing authorities of accredited hospitals to screen those who were granted privileges to use the hospital. It was the practice among these hospitals to set up committees to carry out that purpose. In the instant case undisputed summary judgment evidence established that no such requirements were made upon or had been voluntarily entered into by the Hospital.

In addition to the cases cited by appellant, we find that Darling v. Charleston Community Memorial Hospital, 50 Ill. App.2d 253, 200 N.E.2d 149 (1964), aff’d, 33 I11.2d 326, 211 N.E.2d 253 (1965), cert, denied, 383 U.S. 946, 86 S.Ct. 1204,16 L.Ed.2d 209 (1966), has been cited for the proposition that a hospital may be liable for negligence in granting or continuing surgical privileges where it knows or should know that the particular physician is unqualified or unskilled. Introduced into evidence were the hospital’s by-laws, which required consultation and review of staff physicians’ work. Furthermore, the status of the doctor is not entirely clear, and Darling may be simply a case in which the hospital was held responsible for the negligence of its employee. See Collins v. Westlake Community Hospital, 12 Ill.App.3d 847, 299 N.E.2d 326, 328 (1973), rev’d on other grounds, 57 I11.2d 388, 312 N.E.2d 614 (1974).

In any event a doctor of the choice of a patient is still considered by a majority of states to be an “independent contractor” with regard to hospitals at which he has staff privileges. See Perdue, The Law of Texas Medical Malpractice, 11 Hous.L.Rev. 302, 337 (1974); Annot., 69 A.L.R.2d 305 (1960). The summary judgment record here affirmatively establishes that the Jeff-coats had an on-going doctor-patient relationship with Dr. Phillips entirely aside from the Hospital. Further, they had firsthand knowledge of his performance as a surgeon and the manner in which he performed appendectomies in particular. Nevertheless, they continued to make use of his services and employed him to perform the appendectomy in question sixteen months after a similar operation on their daughter. We adhere to the majority rule and hold that where it is shown that no employer-employee, principal-agent, partnership, or joint venture relationship exists between the hospital and the physician, a hospital is not liable for granting or continuing surgical privileges where the patient has chosen the physician and the hospital is not otherwise liable. On the undisputed record before the court the Hospital was entitled to judgment as a matter of law.

Appellant’s pleadings against Dr. Phillips included allegations of malpractice, lack of informed consent, and fraud. He has assigned on appeal many points, including claimed error in the exclusion of the testimony of two medical-expert witnesses, Dr. Reuss and Dr. Bucklin. Dr. Reuss is a general practitioner presently practicing in Houston, Texas. His training consisted of a Medical Degree from the University of Texas Medical School at Galveston, which he received in 1955. He spent his internship and a year of surgical training at Robert B. Green Hospital in San Antonio. He practiced for several years in Cuero, Texas, before moving to Houston in 1963. He testified that he was familiar with the customary practices in Harris County with respect to the standards applicable to appendectomies in 1961. Although a general practitioner, and not a surgeon, Dr. Reuss had performed some 200 appendectomies. He was permitted to state his opinion as to whether the appendectomy in question was necessary and his opinion with respect to the use of the large incision but was not permitted to state his opinion as to the standard of care in Harris County in 1961 as to the diagnosis, treatment and risk advisement.

In Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949), our supreme court stated:

It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.

The rule of Bowles v. Bourdon was extended to informed consent cases in Wilson v. Scott, 412 S.W.2d 299 (Tex.Sup.1967). It was relaxed in Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1953), jdgmt. set aside on other grounds, 153 Tex. 82, 264 S.W.2d 689 (1954), to allow the testimony of non-local doctors where the subject of inquiry was common to and equally recognized and developed in all fields of practice or where the subject of inquiry related to the manner of use of electrical or mechanical appliances or devices in common use in all fields of practice. The so-called “locality” rule requires that the medical proof be from a witness familiar with the practice in the same or similar communities. Turner v. Stoker, 289 S.W. 190 (Tex.Civ.App.-East-land 1926, writ ref’d). This rule has been eroded due to the recognition that in most cases the minimal standards of care have become more homogeneous with the development of modern medical education, training, and literature, and that licensing provisions tend to be strict and uniform. See Webb v. Jorns, 488 S.W.2d 407 (Tex.Sup.1972); Cleveland v. Edwards, 494 S.W.2d 578 (Tex.Civ.App.-Houston [14th Dist.] 1973, no writ); Christian v. Jeter, 445 S.W.2d 51 (Tex.Civ.App.-Waco 1969, writ ref’d n. r. e.); Annot., 37 A.L.R.3d 420 (1971).

The testimony of Dr. Reuss excluded by the court was essential to the plaintiff’s case under the principles enunciated in Bowles v. Bourdon, supra, and Wilson v. Scott, supra. The evidence was admissible. The mere fact that Dr. Reuss did not begin his individual practice in Houston until 1963 did not justify the trial court in excluding his testimony. He received his medical education in Galveston and his training in San Antonio and testified directly that he was familiar with standards relating to diagnosis, treatment and risks advisement for appendectomies in Houston, and that they had been standard for many years. See Brown v. Colm, 11 Cal.3d 639, 522 P.2d 688, 114 Cal.Rptr. 128 (1974) (doctor admitted to practice in 1959 could establish a 1949 standard of care). The trial court erred in excluding Dr. Reuss’s testimony, and the error was harmful. We, therefore, must reverse the judgment in favor of Dr. Phillips and remand the cause for a new trial. Appellant’s point of error number eight is sustained.

With respect to Dr. Bucklin we hold that, under the circumstances reflected by the record, the trial court had discretion to refuse to receive his evidence as submitted. He should have been permitted to express his opinion that the surgery was unnecessary. However, he was allowed to testify that the removed appendix was normal and that ordinarily competent doctors do not remove normal appendixes. Thus, no reversible error in this regard was shown. Although the trial court could have permitted additional testimony from Dr. Bucklin, reflected by the bill of exceptions, he did not abuse his discretion in declining to admit this evidence.

In light of the necessity for another trial insofar as Dr. Phillips is concerned, we will comment briefly on some of appellant’s other complaints. Appellant does not present reversible error in complaining of the action of the trial court in quashing the subpoena for “copies of all pathology reports of appendectomies performed by Dr. John Roberts [sic] Phillips from September 25, 1959, to date,” either for the purpose of direct evidence of other acts of negligence or for purposes of impeachment. Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950); Goodnight v. Phillips, 458 S.W.2d 196, 199-200 (Tex.Civ.App.-Houston [1st Dist.] 1970, writ ref’d n. r. e.); French v. Brodsky, 521 S.W.2d 670 (Tex.Civ.App.Houston [1st Dist.] 1975, no writ). Appellant’s tendered instruction at issue on informed consent was not in substantially correct form and the trial court did not err in refusing such definition. We also overrule appellant’s contention that he was entitled to impeach Dr. Phillips by proof of other acts to show a “scheme” to rush patients into surgery. Other courts have overruled such contention, and so do we. See Goodnight v. Phillips, 458 S.W.2d 196 (Tex.Civ.App.-Houston [1st Dist.] 1971, writ ref’d n. r. e.). See also Goodnight v. Phillips, 418 S.W.2d 862 (Tex.Civ.App.-Houston [1st Dist.] 1967, writ ref’d n. r. e.); Jeffcoat v. Phillips, 417 S.W.2d 903 (Tex.Civ.App.-Texarkana 1967, writ ref’d n. r. e.).

Appellant’s other complaints are not likely to occur at the next trial, and thus need not be further considered. The summary judgments in favor of the Harris County Medical Society and the Medical Arts Hospital, Inc. are affirmed. The judgment in favor of Dr. John Robert Phillips is severed and reversed and the cause remanded.

Affirmed in part, and reversed and remanded in part.


author: HALL, Justice. JAMES, Justice McDONALD, Chief Justice

text:
    John O. REGIAN et al., Appellants, v. Dave SOWELL, Appellee.
    No. 5488.
    Court of Civil Appeals of Texas, Waco.
    Feb. 19, 1976.
    Rehearing Denied March 11, 1976.

      Brown, Crowley, Simon & Peebles, Randall E. Betty, Ft. Worth, McPherson & Boulware, Dan M. Boulware, Cleburne, for appellants.
    Altaras, Altaras & Altaras, Jack C. Altar-as, Cleburne, Thompson, Knight, Simmons & Bullion, Stephen S. Livingston, Dallas, for appellee.
   HALL, Justice.

In this automobile collision case, the ap-pellee-plaintiff sued the appellants for $1,900.00 damages. He was awarded a judgment for $1,395.00. Among other assignments for reversal, the appellants assert that the trial court—the County Court of Johnson County—did not have jurisdiction over the subject matter of this case, and that the judgment is accordingly void. We sustain this point.

The County Court of Johnson County is a constitutional county court. Such courts have jurisdiction in civil cases of the nature of this one when the amount in controversy exceeds $200 but does not exceed $1,000. Article 5, Section 16, Vernon’s Ann.Tex.Const.

The Legislature is empowered by Section 22 of Article 5, Tex.Const., to “increase, diminish or change the civil and criminal jurisdiction” of constitutional county courts by local or general law. And by virtue of Section 1 of Article 5, Tex. Const., the Legislature “may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.” Acting under this last grant of power, the Legislature has from time to time created so-called “statutory” courts across the State, such as county courts at law, county civil courts, domestic relations courts, and others.

Effective May 3, 1949, the Legislature, by Acts 1949, 51st Leg., p. 185, ch. 102, enacted Article 1970-335 for the purpose expressed in the caption of the Act, of “defining the jurisdiction of the County Court of Johnson County and diminishing its civil and criminal jurisdiction.” By this Act, the jurisdiction of the County Court of Johnson County over civil and criminal cases, original and appellate, including eminent domain cases (but excepting probate matters, lunacy hearings, and a few other matters of like nature specified in the Act), was removed from the County Court and placed in the District Court in and for that County. This Act does not purport to create a statutory court. It simply diminishes the jurisdiction of a constitutional County Court.

By Acts 1971, 62nd Leg., p. 26, ch. 11, effective Mar. 4, 1971, the Legislature amended Article 1970-335 to its present status, again for the purpose expressed in the caption of the Act of “defining the jurisdiction of the County Court of Johnson County.” This amendment reinvests the County Court of Johnson County with the jurisdiction removed from it with the original enactment of the Article; leaves concurrent jurisdiction thereof in the District Court; requires that all causes falling within this concurrent jurisdiction shall be filed in the District Court; and provides that the District Judge may, in his discretion, assign any such cause to the County Court for trial and disposition. This amendatory Act does not purport to create a statutory court.

Effective June 15, 1971, the Legislature enacted Article 1970a, and thereby provided, “All county courts at law, county civil courts, and other statutory courts exercising civil jurisdiction corresponding to the constitutional jurisdiction of the county court in civil cases shall have jurisdiction concurrent with that of the district court when the matter in controversy shall exceed in value Five Hundred Dollars ($500) and shall not exceed Five Thousand Dollars ($5,000) exclusive of interest.” This article does not apply to constitutional county courts. It applies only to statutory courts. Amigo Helicopters, Inc. v. Jones, 488 S.W.2d 473, 474, (Tex.Civ.App. — Hou. 14th, 1972, no writ hist.).

The amount in controversy in this case exceeds the trial court’s $1,000 maximum jurisdictional amount. The judgment is therefore void. It is reversed and set aside; Williams v. Steele, 101 Tex. 382, 108 S.W. 155, 157 (1908); and this cause is remanded to the trial court for transfer back to the District Court of Johnson County.

Because the trial court was without jurisdiction on the merits, so is this court. For this reason, I express no opinion on the complaints raised in the appellants’ remaining points of error.

Reversed and remanded.

JAMES, Justice

(dissenting).

I respectfully dissent. I believe the County Court of Johnson County had jurisdiction of and over the case at bar. Article 5, Section 22 of the Texas Constitution empowers the Legislature to “increase, diminish or change the civil and criminal jurisdiction of County Courts” by local or general law. Acting under this mandate of the Constitution, the Legislature in 1949 enacted a local law, namely, Article 1970-335, wherein the civil and criminal jurisdiction of the County Court of Johnson County was “diminished” by transferring it to the District Court of Johnson County. Then again on March 4, 1971, the Legislature by local law “increased and changed” the jurisdiction of the County Court of Johnson County by amending Article 1970-335 to its present status, by in effect reinvesting said County Court with civil and criminal jurisdiction in accordance with the Constitutional and general laws of Texas, and making such jurisdiction concurrent with the District Court. Reference is here made to said statute for its particular provisions, the important aspect here to be considered being that the Legislature has on two separate occasions exercised its power to “increase, diminish or change” such jurisdiction of said County Court.

Now this brings us to a construction of Article 1970a, V.A.T.S, effective June 15, 1971, insofar as it applies to the County Court of Johnson County. Article 1970a provides:

“All county courts at law, county civil courts, and other statutory courts exercising civil jurisdiction corresponding to the constitutional jurisdiction of the countv court in civil cases shall have jurisdiction concurrent with that of the district court when the matter in controversy shall exceed in value Five Hundred Dollars ($500) and shall not exceed Five Thousand Dollars ($5000) exclusive of interest.” (emphasis supplied).

Now, the question is, does the language used in Article 1970a which we have underscored above, to wit, “other statutory courts exercising civil jurisdiction corresponding to the constitutional jurisdiction of the county court in civil cases,” include the County Court of Johnson County, with its jurisdiction in its present statutory condition? If it does, then the County Court of Johnson County has civil jurisdiction up to $5000 under Article 1970a. If not, then said court’s civil jurisdiction is limited to $1000.00.

I believe the County Court of Johnson County is included in the above-quoted portion of Article 1970a. There is no question but that the County Court of Johnson County was a constitutional county court with civil jurisdiction up to only $1000.00, before the Legislature changed its civil and criminal jurisdiction in 1949, and again in 1971, as it had the power to do under Article 5, Section 22 of the Constitution. But after the Legislature not once, but twice, changed the jurisdiction of said County Court it became (particularly after the 1971 amendment) a “statutory court exercising civil jurisdiction corresponding to the constitutional jurisdiction of the county court in civil cases.”

The County Court of Johnson County, had its jurisdiction been left intact and untampered with in its original state, would definitely not have been in any way affected by Article 1970a. In such event its jurisdiction would have been limited to $1000 in civil cases under Article 5, Section 16 of the Constitution. But such is not the case. Far from it. The Legislature by statute has made substantial changes in its civil and criminal jurisdiction. The Legislature by statute did not destroy the County Court of Johnson County as a constitutional court by changing up its jurisdiction. But it did change its nature so as to place it in the category of a “statutory courts exercising civil jurisdiction corresponding to the constitutional jurisdiction of the county court in civil cases,” within the meaning of Article 1970a. In my opinion said county court is a constitutional county court which yet fits into the class of courts embraced in Article 1970a. Any other analysis than this completely overlooks the fact that the Legislature has by Article 1970-335 made substantial changes in the civil and criminal jurisdiction of the County Court of Johnson County. For these reasons I would hold that the County Court of Johnson County had jurisdiction of and over the case at bar, it being a suit wherein the maximum amount in controversy was $1900 exclusive of costs.

In view of my conclusion that the trial court had jurisdiction, it should be pointed out that Appellants’ brief urged sixteen points of error other than that of want of jurisdiction. I have carefully considered all of Appellants’ points and would overrule same as being without merit.

McDONALD, Chief Justice

I concur with Justice HALL that the Johnson County Court did not have jurisdiction. I concur with Justice JAMES that appellants’ first 16 points present no error and are without merit.

(concurring).