author: PER CURIAM.

text:
    W. L. BURKE, Jr., Individually and as Chairman for the Abilene Committee on Taxation and Trade, Appellant, v. Mrs. Chester HUTCHESON, Appellee.
    No. 4927.
    Court of Civil Appeals of Texas, Eastland.
    May 6, 1976.
    Rehearing Denied May 27, 1976.

      Bob Hanna, Robinson, Hanna, Burke & Moore, Inc., Abilene, for appellant.
    Ed Paynter, Dist. Atty., Abilene, Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, amicus curiae, for appellee.
   PER CURIAM.

W. L. Burke, Jr., Individually and as Chairman for the Abilene Committee of Taxation and Trade sought a writ of mandamus to compel Mrs. Chester Hutcheson, County Clerk of Taylor County, to certify to the Commissioner’s Court of Taylor County the results of her count of the signatures on a petition seeking to call a local option election. The writ was denied. Burke appeals. We affirm.

The Abilene Committee on Taxation and Trade in compliance with Article 666-32, Texas Penal Code, secured a petition to call a local option election for the sale of alcoholic beverages in the incorporated city limits of Abilene, Texas. The petition, after being circulated for signatures of voters, was returned to Mrs. Hutcheson for a count to determine whether the prescribed number of qualified voters had signed the petition in order that the election might be called. Mrs. Hutcheson, following a count of the signatures, agreed that more than the minimum qualified voters had signed the petition. She refused, however, to certify to the Commissioner’s Court that the required number of qualified voters had signed the petition. Her refusal was based on the premise the City of Abilene lies in two counties and Article 666 — 32 did not provide for a local option election to be held in a city so located.

Burke had the burden to demonstrate clearly and unequivocally his right to compel Mrs. Hutcheson to perform a ministerial as distinguished from a discretionary act before he was entitled to the issuance of a writ of mandamus. The court in Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887 (Tex.1968) said:

“. . . ‘It is elementary law that mandamus will not issue to compel a public official to perform an official act unless it is made to appear to the court that the relator’s right to have the act performed is clear.’ Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952); City of McAllen v. Daniel, 147 Tex. 62, 211 S.W.2d 944 (1948); Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 153 A.L.R. 1054 (1944); City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028 (1940); Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939); Texas National Guard Armory Board v. McGraw, 132 Tex. 613, 126 S.W.2d 627 (1939); Denison v. Sheppard, 122 Tex. 445, 60 S.W.2d 1031 (1933); Holcomb v. Robinson, 118 Tex. 395, 15 S.W.2d 1027 (1929); Common School District v. Keeling, 113 Tex. 523, 261 S.W. 364 (1924); Kemp v. Wilkinson, 113 Tex. 491, 259 S.W. 912 (1924); Trinity Life & Annuity Soc. v. Love, 102 Tex. 277, 115 S.W. 26, 116 S.W. 1139 (1909); Wortham v. Sullivan, 147 S.W. 702 (Tex.Civ.App.1912, writ ref.).”

The court in Heaton v. Bristol, 317 S.W.2d 86 (Tex.Civ.App. —Waco 1958, writ ref.) cert. denied 359 U.S. 230, 79 S.Ct. 802, 3 L.Ed.2d 765, when discussing the rule to be applied before a mandamus may be issued against a public official for the performance of an alleged duty stated:

“. . .we think the rule is that before a mandamus may be awarded against a public officer for the performance of an alleged duty, the duty must have already been imposed by plain, unambiguous and positive statute, and be imperatively required. It will never issue to enforce a doubtful right, nor where the regular duty is not clear and certain. The duty, in a word, must be ministerial, one which does not involve any discretion, and which leaves no alternative.”

In Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138 (1939), the court quoted the rule concerning the certainty of averments in petition for mandamus as:

“. . . ‘Relator, to be entitled to the right must at least have a clear legal right to the performance by respondent of the particular duty sought to be enforced, that is, there must be a clear legal right in relator and a corresponding duty on the part of the person to whom the writ is directed. No intendments are to be indulged. Relator must by averment and proof show an unqualified right to the writ. * * * Absent any clear legal right of relator which it is the duty of respondent to grant, there is no substantial resting place upon which to base the application, for in its final analysis the question for determination is whether the right of the aggrieved party is so free from doubt and the duty of the officer so clear and free from any substantial question that an order should issue to compel performance. The office of mandamus is to execute, not adjudicate. It does not ascertain or adjust mutual claims or rights between the parties. If the right be doubtful, it must be first established in some other form of action. Mandamus will not lie to establish as well as enforce a claim of uncertain merit.’ ”

Tex.Penal Code Aux.Laws art. 666, § 32 (1975) provides in part:

“The commissioners court of each county in the state, upon proper petition, shall order an election wherein the qualified voters of such county, or of any justice precinct, or incorporated city or town therein, may by the exercise of local option determine whether or not the sale of alcoholic beverages of one or more of the various types and alcoholic contents shall be prohibited or legalized within the prescribed limits of such county, justice precinct, or incorporated city or town.”

Upon the return of a petition for the calling of a local option election to the County Clerk, the Article requires:

“. . . It shall be the duty of the county clerk to check the names of the signers of any such petition, and the voting precincts in which they reside to determine whether or not the signers of such petition were in fact qualified voters in such county, justice precinct, or incorporated city or town at the time such petition was issued, and to certify to the commissioners court the number of qualified voters signing such petition . .”

A county commissioner’s court has no power or jurisdiction beyond the limits of the county itself. Article 5, § 18, Tex. Const.

Texas courts have held that where the Liquor Control Act failed to provide methods and machinery for holding a local option election in an incorporated city or town geographically located in two counties, the county commissioner’s court of one county was without authority or power to order and direct a local option election in a city lying partly in two counties. Ellis v. Hanks, 478 S.W.2d 172 (Tex.Civ.App.—Dallas 1972, writ ref. n. r. e.); Greggs v. Faulk, 343 S.W.2d 543 (Tex.Civ.App.-Fort Worth 1961, no writ).

There is no clear statutory authority for the officials of Taylor County to order a local option election for the City of Abilene, a portion of which lies in Taylor County and a portion of which lies in Jones County. The certification requested by appellant would be a useless act on the part of the clerk. The application for the writ of mandamus was properly denied. It is stated in Ellis v. Hanks, supra:

“. . . our Supreme Court in Manion v. Lockhart, 131 Tex. 175, 114 S.W.2d 216, 219 (1938), said that the law is well settled that a writ of mandamus will not issue where the issuance of such writ would be fruitless or futile. More recently the same rule was reiterated in Parks v. Elliott, 465 S.W.2d 434 (Tex.Civ.App., Houston (14th Dist.) 1971).”

Burke contends that a construction of Article 666-32 prohibiting the calling of a local option election in a city located in two counties would result in the statute being unconstitutional and a denial of equal protection as guaranteed by the United States and Texas Constitutions.

We do not interpret appellant’s petition or argument as seeking a declaration that Article 666-32 is unconstitutional. However, if we be incorrect, Section 11, Article 2524-1, V.A.C.S. provides:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the Statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the State shall also be served with a copy of the proceeding and be entitled to be heard.” (Emphasis added)

The record does not reflect the prerequisite service on the Attorney General.

The judgment is affirmed.


source: Caselaw Access Project

author: BREWSTER, Justice.

license: Public Domain

text:
    Ralph G. TEMPLETON, Appellant, v. UNIGARD SECURITY INSURANCE COMPANY, Appellee.
    No. 17720.
    Court of Civil Appeals of Texas, Fort Worth.
    May 7, 1976.
    Rehearing Denied June 4, 1976.

      Gibbins & Spivey Associated, Inc., and J. Patrick Hazel, Austin, for appellant.
    Hudson, Keltner, Smith, Cunningham & Payne, and H. S. Sparks, III, Fort Worth, for appellee.
   OPINION

BREWSTER, Justice.

The appellant, Ralph Templeton, filed this workmen’s compensation case against appellee, Unigard Security Insurance Company. Upon receipt of a jury verdict wherein the jury found that appellant was not an employee of the alleged employer at the time he was hurt the trial court rendered judgment decreeing that the appellant recover nothing from the appellee. The appellant here appeals from that decree.

This appeal was set for submission before this Court on April 23, 1976. On April 2, 1976, the appellant filed in this Court an unsworn motion asking that this Court, pursuant to Rule 428, T.R.C.P., direct that a supplemental transcript containing his objections and exceptions to the court’s charge that he had dictated to the court reporter during the trial be certified by the clerk of the trial court to this Court of Civil Appeals. On April 16, 1976, this Court denied that motion. On April 23, 1976, the appellant filed in this case a motion for rehearing of its motion to direct the filing of the supplemental transcript. Attached to this motion for rehearing was the affidavit of a deputy district clerk (who is the transcript clerk in the Tarrant County District Clerk’s office) wherein she stated: that she had prepared the transcript in this case and filed it in the Court of Civil Appeals on October 3, 1975; that on September 4, 1975, she had received from the attorney of record of appellant the original copy of appellant’s objections and exceptions to the court’s charge and an accompanying letter wherein that attorney noted that the judge had at that time not yet signed the appellant’s objections and exceptions to the charge and that the judge needed to sign them before sending them to the Court of Civil Appeals; that she looked over the objections and exceptions to the charge and noted that appellant’s lawyer had signed them, but she failed to note that the judge had not signed them; that she therefore failed to get the judge to sign such objections before she filed them in the district clerk’s office and before she included them in the transcript; it was on March 31, 1976, that she received a phone call from appellant’s lawyer asking about it and she advised him that she would then get the trial judge to sign the objections, and on direction from the Court of Civil Appeals would have them forwarded to that Court. Attached to that affidavit as an exhibit was a copy of appellant’s objections and exceptions to the court’s charge that shows that those objections had not been signed by the trial judge until April 1, 1976.

We hold that our ruling denying the appellant permission to file a supplemental transcript containing appellant’s objections and exceptions to the court’s charge was correct. The judgment appealed from was signed and rendered on July 1, 1975. The appellant’s only motion for new trial was filed on June 27, 1975. Since the motion for new trial was filed before the judgment was rendered and signed we must consider it as having been filed on the date of the judgment (July 1, 1975), but subsequent to rendition of the judgment. Rule 306c, T.R.C.P., and Wyche v. Bank of Texas, 485 S.W.2d 391 (Tex.Civ.App., Houston, 1st Dist., 1972, no writ hist.). The trial court did not sign an order overruling appellant’s motion for new trial. It was therefore overruled by operation of law 45 days after it was filed, which date would be August 15, 1975. Rule 329b, Subd. 4, T.R.C.P. The appellant had 60 days after the motion for new trial was overruled by operation of law in which to file the transcript and statement of facts. Rule 386, T.R.C.P. That 60th day would have been October 14, 1975. In this instance the transcript was actually filed in the Court of Civil Appeals on October 3, 1975.

The provisions of Rule 272, T.R.C.P., as it was worded prior to its amendment effective January 1, 1976, is determinative of the issues involved here. It then provided in substance that objections to a court’s charge must be presented to the court in writing, otherwise they are waived. The rule further provided in part as follows:

“The requirement that the objections to the court’s charge shall be in writing will be sufficiently complied with if such objections are dictated to the court reporter in the presence of and with the consent of the court and opposing counsel, before the reading of the court’s charge to the jury, and are subsequently transcribed and the court’s ruling and official signature endorsed thereon and filed with the clerk in time to be included in the transcript.”

In this case Rule 272 was not complied with in that the trial court’s official signature was not endorsed on the transcribed objections in time for the signed objections to be included in the transcript. The copy of appellant’s objections to the court’s charge that was attached to his motion for rehearing that is being considered shows that such objections to the court’s charge were not signed by the trial judge until April 1, 1976, which was months after the last day for filing the transcript.

Because appellant did not preserve his bill of exceptions complaining of the court’s action in overruling his objections to the court’s charge in the manner provided for in Rule 272, such objections were waived and cannot be considered by this Court on appeal. Southland Capital Corporation v. Clark, 526 S.W.2d 278 (Tex.Civ.App., Waco, 1975, no writ hist.); Beacon National Insurance Co. v. Young, 448 S.W.2d 812 (Tex.Civ.App., Dallas, 1969, ref., n. r. e.); Tandy Corporation v. McGregor, 527 S.W.2d 246 (Tex.Civ.App., Texarkana, 1975, ref., n. r. e.); and Commercial S. Ins. Co. v. Southern F. Bur. Cas. Ins. Co., 509 S.W.2d 387 (Tex.Civ.App., Corpus Christi, 1974, ref., n. r. e.).

Appellant’s motion to supplement the transcript was based on Rule 428, T.R.C.P., which provides in substance that if anything material to either party is omitted from the transcript or statement of facts, the trial or the appellate court, either before or after the record has been sent to the appellate court, can direct a supplemental record to be certified by the clerk of the trial court supplying the omitted matter.

An appellate court is not obliged under that rule, however, to order a transcript to be supplemented in a situation where to do so would accomplish no good object and would merely increase the costs on appeal. Posey v. Posey, 386 S.W.2d 884 (Tex.Civ.App., Fort Worth, 1965, no writ hist.).

The case before us is a prime example of just what we are talking about in the paragraph next above. Even if this Court did permit appellant to file a supplemental transcript containing his objections to the court’s charge it would be of no aid to him on this appeal. This Court could not consider those objections, because appellant did not get the trial court to sign them in time to get them included in the transcript as is required by Rule 272. The trial court signed them 5½ months after the deadline for getting them signed. Under those facts the objections to the charge were waived. The only thing that would be accomplished if we permitted the supplemental transcript to be filed would be to increase the costs of the appeal.

Cases that sustain our ruling denying to appellant leave to file the supplemental transcript are: Southland Capital Corporation v. Clark, supra; Cannon v. Canida, 321 S.W.2d 631 (Tex.Civ.App., Texarkana, 1959, ref., n. r. e.); and Beacon National Insurance Co. v. Young, supra. In each of those cases the appellant was denied the right to file a supplemental transcript under circumstances similar to those involved here.

We overrule the appellant’s motion for rehearing of his application to file a supplemental transcript.

The remainder of the opinion is devoted to the three points of error that appellant urges on the appeal.

Appellant’s first point of error is that the trial court erred in refusing to submit to the jury his requested special issue inquiring as to whether or not appellant was a borrowed employee.

His third point of error is that the trial court erred in refusing to give his requested instruction stating in substance that appellant could be the employee of two employers.

We overrule both of those points of error because no proper bill of exceptions is contained in the record before us to preserve the matters there complained of for appellate review.

Appellant made no attempt to procure bills of exceptions preserving the rulings complained of by separately requesting the issue and instruction in writing, having the trial court endorse his rulings thereon, and then having that judge sign such instruments, all as is provided for in Rule 273 and 276, T.R.C.P.

In the absence of an order signed by the trial court refusing a request for submission of a special issue or requested instruction as is required by Rules 273 and 276 the right to complain of its non-submission is waived. Waggoner & Zeller Oil Company v. Deike, 508 S.W.2d 163 (Tex.Civ.App., Austin, 1974, ref., n. r. e.), and Neuhoff Brothers Packers, Inc. v. McCauley, 399 S.W.2d 929 (Tex.Civ.App., Waco, 1966, ref., n. r. e.).

There are other reasons why we are required to overrule appellant’s first and third points of error.

The only place in the record where it is made to appear that the appellant requested the giving of the issue and instruction referred to is in the instrument designated in the transcript as “Plaintiff’s Objections and Exceptions to the Court’s Charge.” This instrument was not signed by the trial court.

It shows that appellant dictated all together and that he later had them transcribed into one document his objections to the court’s charge, his request for a trial amendment, his request for submission of the special issue, and his request that the jury be given the requested instruction. They were intermingled.

Rule 273, T.R.C.P., provides in part the following: “. . .A request by either party for any instructions, special issues, definitions or explanatory instructions shall be made separate and apart from such party’s objections to the court’s charge.”

That part of Rule 273 was not complied with in this case. Appellant’s request for the special issue and his request for the giving of the instruction were not made separate and apart from appellant’s objections to the court’s charge. The requests were incorporated in and intermingled with the objections to the court’s charge.

Because appellant did not comply with Rule 273 by making requests for the giving of the requested issue and requested instruction separate and apart from his objections to the court’s charge the court’s rulings on the requests were not preserved for appellate review. Such matters were waived. Avant v. Gulf Coast Investment Corporation, 457 S.W.2d 134 (Tex.Civ.App., Dallas, 1970, no writ hist.), and Blackmon & Assoc., Inc. v. Palmer Bldg. Sup. & Spec., Inc., 463 S.W.2d 228 (Tex.Civ.App., Corpus Christi, 1971, ref., n. r. e.).

In appellant’s second point of error he contends that the trial court erred in refusing to allow appellant to file a trial amendment specifically pleading that he was a borrowed employee at the time he was injured.

We also overrule that point because there is not a sufficient bill of exceptions in the record to preserve that point for appellate review.

The only place in the record before us where it is indicated that appellant might have requested leave to amend and that such request was refused by the trial court is in the instrument above referred to having the caption, “Plaintiff’s Objections and Exceptions to the Court’s Charge”. As shown above this instrument was only signed by appellant’s lawyer and was not signed by the trial court.

With the record in that state it does not sufficiently show that the appellant had requested permission to file the trial amendment and that the court had refused such request. For this reason no proper bill of exceptions is contained in the record to preserve the matter complained of in appellant’s second point of error for appellate review. See Alcazar v. Southwestern Bell Telephone Company, 353 S.W.2d 933 (Tex.Civ.App., Austin, 1962, no writ hist.).

The judgment is affirmed.


author: SHANNON, Justice.

text:
    Homer R. MAYHALL et ux., d/b/a Beltone Hearing Aid Service H. R. "Tex” Mayhall Company, Appellants, v. Paul PROSKOWETZ, Individually and d/b/a Centex Hearing Aid Service, Inc., Appellee.
    No. 12405.
    Court of Civil Appeals of Texas, Austin.
    May 12, 1976.
    Rehearing Denied June 1, 1976.
    Milton L. Bankston, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellants.
    Malcolm Robinson, Hooper & Robinson, Austin, for appellee.
   SHANNON, Justice.

Appellants filed suit in the district court of Travis County against appellee, Paul Proskowetz, for breach of an employment agreement. After appellants had rested their case, appellee moved the court to instruct the jury to return a verdict for him upon the basis that the provision in the employment agreement, which provided for “liquidated damages,” was a penalty. The court granted the motion, and entered judgment that appellants take nothing. We will reverse that judgment.

Appellants have operated their hearing aid business in Austin for twenty-two years. That business functions under a franchise from Beltone Hearing Aid Company and the franchise covers twenty-two counties in central and southeast Texas.

The primary object of appellants’ business is the sale and service of hearing aid devices. As a part of sales promotion, appellants work with public schools, physicians, and nurses in conducting tests to determine whether those persons who are tested suffer a loss of hearing. To carry out these objectives, it is necessary for appellants to conduct programs to train their employees to administer hearing tests and to interpret the results of the tests. Appellants also train their employees to repair the hearing devices.

Prior to employment by appellants, appel-lee was associated with a Beltone dealer in Baton Rouge. In March of 1972, appellee commenced negotiations with appellants for a job. As one of the conditions of employment, appellants require the execution of an employment contract, termed by them a “working agreement.” One part of that agreement provides that the employee after terminating employment will not compete with appellants in a specified location for three years. In the preliminary negotiations appellants told appellee of the non-competition provision.

In May of 1972, appellee moved to Austin. Upon arrival he completed a formal application for employment with appellants. As appellee had no license to engage in the hearing aid business in Texas, he made application to obtain a temporary training permit and appellant, Margarette Mayhall, agreed to sponsor appellee as his supervisor. Appellee was presented with a form employment agreement which he signed. The form of that agreement provided as follows:

“WORKING AGREEMENT
“Whereas, I _have applied for employment with the H. R. “Tex” Mayhall Company and whereas such employment shall require said company to train me in the art of selling, fitting, and servicing hearing aid equipment, and such employer shall necessarily furnish to me prospective customers. Now, therefore, I,_., in consideration of the above mentioned items and of the premises generally hereby agree that I will not work for, sell for, demonstrate for, nor assist any other hearing aid company, distributor, or person in the following counties of Texas to wit: Austin, Bastrop, Blanco, Burnet, Caldwell, Colorado, DeWitt, Fayette, Gonzales, Hays, Lampasas, Lavaca, Lee, Llano, Mason, Milam, Travis, Washington and Williamson, whether as a consultant or distributor for a period of three years beginning at termination of my employment and ending three years from that date.
“In the event that I,_, fail to comply with the terms thereof, I agree to pay Homer R. Mayhall the sume [sic] of five thousand dollars ($5,000.00) as liquidated damages because of the difficulty of proving damages arising out of breach hereof, and the parties agree such amount will be fair and equitable for a breach hereof.
“This is a bona fide legal agreement, and I hereby recognize it as such.”

Appellee began employment with appellants on May 18, 1972. He was compensated on a commission basis. While working for appellants, appellee made between $1,100.00 and $1,300.00 each month except for June and July of 1973 when he made about $800.00 each month.

Appellants furnished appellee a sample kit of instruments, servicing tools, books containing names and addresses of “users” and “leads,” test records of clientele, equipment, training materials, and a “protected” territory in which to work. The “protected” territory consisted of ten counties in which he was the only Beltone salesman. In the other twelve counties in appellants’ franchise, appellee was advised of the “service centers” which appellants had developed through the years.

In November or December of 1972, appel-lee decided that he would quit, but he did not terminate his employment with appellants until August 6, 1973.

It was shown that during a part of June and in July of 1973, while still working for appellants, appellee began selling hearing devices for another hearing aid company, Otican Corporation.

When he left appellants’ employ, appellee told appellants that he was going into business for himself. At trial, it was shown that appellee was in the hearing aid business in Travis, Williamson, Caldwell, Fa-yette, and Lee Counties. Appellee testified that he “openly and actively” went into competition with appellants for business in those counties. Appellee has sold some hearing devices to persons who were formerly appellants’ clients.

Appellant, Margarette Mayhall, testified that she did not know how many of appellants’ customers appellee had called upon and had succeeded in selling hearing aids to. She professed that there was no way to determine, with particularity, the financial loss to her business caused by appellee’s activities. She was also unaware of how many prospective customers appellee had called upon for his own purposes and how many Otican hearing devices appellee had sold while working for appellants.

Appellant Mayhall testified further as to the difficulty in ascertaining the monetary damage to appellants occasioned by appel-lee’s departure. Appellee admitted that there was no way to determine the number of sales lost by appellants which was occasioned by his leaving appellants’ employ.

On cross-examination, Margarette May-hall stated that she and her husband and appellee did not discuss the stipulated damage provision of the agreement. Appellant Mayhall also testified on cross-examination, that if appellee had left appellants’ employment and had begun his own business in one or two of the counties covered by the agreement that, in her opinion, appellee “would have broken the agreement.” She said that her view would be the same even if appellee had worked for appellants for even a short period of time.

By two points of error appellants contend that the district court erred in instructing the verdict because the stipulated damage provision of the agreement was a provision for liquidated damages and thereby enforceable.

A stipulated damage provision of a contract will be enforced as liquidated damages when the damages caused by the breach are uncertain and the stipulated sum is reasonable. Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952). Where the contract contains several provisions of different importance and the stipulated damage sum is payable for the breach of even the least important provision, the stipulated damage provision is usually regarded as a penalty. Durst v. Swift, 11 Tex. 273 (1854).

The employment agreement did not contain several provisions of varying importance, the breach of the least important of which required the payment of the stipulated damages. The payment of the stipulated damage provision in the agreement was conditioned upon appellee’s leaving appellants’ employ and then commencing to “. . . work for, sell for, demonstrate for, nor assist any other hearing aid company, distributor, or person . . .’’in the “protected” counties for a period of three years after termination with appellants.

We have also concluded that the damages caused from breach of the working agreement were uncertain and that the stipulated sum was reasonable. All of the evidence was that there was no way to measure the financial loss to appellants’ business upon the termination of an employee of appellee’s category. The statement of facts shows that appellants trained appellee, and gave him their books containing the names and addresses of clients and prospective clients, their clients’ test records, equipment, and training materials. Appellee, working on a commission was able to earn from $1,100.00 to $1,300.00 each month. About seven months after employment appellee formed the resolve to leave appellants, but continued in their employ for another eight months. During a part of that period of time appellee was selling appellants’ products and at the same time he was building up his own business with another competing line of products.

It is true that appellant Mayhall testified on cross-examination concerning her attitude toward the enforcement of the agreement under a different set of facts. Appellant Mayhall’s view toward the application of the agreement to a different set of facts has little bearing on the resolution of this case. The facts are that appellee set up his own business in five of the counties covered by the agreement after he had worked for appellants more than one year.

The judgment is reversed and the cause is remanded to the district court.

Reversed and Remanded.

      . Homer R. Mayhall and wife, Margarette May-hall, doing business as Beltone Hearing Aid Service H. R. “Tex” Mayhall Company.

      . Austin, Bastrop, Blanco, Brazos, Burleson, Burnet, Caldwell, Colorado, Fayette, Grimes, Hays, Lampasas, Lavaca, Lee, Llano, Madison, Milam, Polk, Travis, Waller, Washington, and Williamson.


author: WARD, Justice.

text:
    Harold R. DURR, Appellant, v. Shelley Lawrence NEWMAN and the Estate of Victor William Newman, Deceased, Appellees.
    No. 6505.
    Court of Civil Appeals of Texas, El Paso.
    May 12, 1976.
    Rehearing Denied June 2, 1976.

      Calhoun, Morton & Deason, Ronald R. Calhoun, El Paso, for appellant.
    Peticolas, Luscombe, Stephens & Windle, Wayne Windle, Colbert N. Coldwell, El Paso, for appellees.
   OPINION

WARD, Justice.

The Appellee, Shelley Lawrence Newman, filed her application in the County Court at Law No. 3 of El Paso County, Texas, to be appointed Administratrix of the Estate of Victor William Newman, Deceased. After a contested hearing before the Court sitting without a jury, judgment was entered which found that Shelley Lawrence Newman was the common-law wife of the decedent and her application was granted. Findings of fact and conclusions of law were neither requested nor found. Both proof of the existence of the informal marriage under Sec. 1.91(a)(2), and the subsequent validation of the informal marriage under Sec. 2.22 of the Texas Family Code are involved. Harold R. Durr had been the temporary administrator of the Estate and he appeals. We affirm.

Victor William Newman was married to one Kathy Newman, but in October, 1972, he started living with the Appellee, Shelley Lawrence Newman. At first, the Appellee did not know that Victor Newman was married, but she did learn this a month later. Mr. Newman’s young son came to live with these people in February, 1973, and continued to live with them up until the death of Mr. Newman. From September of 1973 until his death, the three resided in a duplex on Pizarro Street in El Paso. After a business trip to Venezuela in September, 1974, and while in New York City, Victor William Newman and the Appellee agreed to be husband and wife. Thereafter, Shelley Lawrence Newman wore a wedding ring, took care of the child, performed the duties of a wife, and maintained the household in El Paso. In the first part of January, 1975, Mr. Newman left El Paso on a business trip to San Francisco and Las Vegas, Nevada. Appellee and the son joined him in Las Vegas on February 1st for a three-day visit. The Appellee and the son then returned to El Paso. During the visit, Appellee delivered to Mr. Newman his mail from El Paso and when the mail was opened the parties first learned that Mr. Newman had been divorced from Kathy Newman on January 17, 1975. On February 7th, Mr. Newman was killed in an airplane crash in Arizona while traveling from Las Vegas to New Orleans.

The following applies where findings of fact and conclusions of law were neither requested nor filed. The trial Court’s judgment implies all necessary fact findings in support of the judgment. The judgment must be affirmed if there is sufficient evidence to support it on any lawful theory, and every fact issue sufficiently raised by the evidence must be resolved in support of the judgment. 4 McDonald, Texas Civil Practice, § 16.10(d) at 30.

The Appellant’s one point is divided into three parts under which he first argues that there was insufficient evidence produced to show that after January 17, 1975, that the decedent and Appellee lived together as husband and wife and represented themselves to others as being married. This attack is upon the two implied findings made by the trial Court as required by the second sentence of Sec. 2.22 of the Texas Family Code. In passing upon this challenge, all of the evidence and reasonable inferences arising therefrom have to be considered. After the January 17th divorce, the parties were together for only the three days in Las Vegas. During this visit the parties stayed with two unmarried couples. No agreement was ever made after the date of the divorce to become husband and wife, and during this period of time Appellee maintained a checking account and a safety deposit box under the name of Shelley Lawrence. It was also shown that the decedent had stated during the latter part of 1974 that he didn’t think he would ever be married again and didn’t want to get married again. On the other hand, the Appellee considered herself as his wife, took the decedent’s son with her on the visit and carried his business mail to Mr. Newman. She had relations with him in Las Vegas, was introduced one time in that city as his wife, and the decedent made the return flight reservations by credit card for her as Mrs. Newman. After the return to El Paso, the Appellee continued her duties as stepmother to the boy, and the boy returned to his school where the Appellee had always been known as the boy’s stepmother. The evidence is sufficient to support the two implied findings.

Contrary to the Appellant’s position, no new agreement presently to be husband and wife was necessary. After the prior marriage was dissolved, inferred or tacit agreement to become husband and wife is now imposed by Sec. 2.22 if the parties live together as husband and wife and represent themselves to others as being married. The short three-day period of time that the parties were together is not controlling, Howard v. Howard, 459 S.W.2d 901 (Tex.Civ.App. —Houston (1st Dist.) 1970, no writ).

Sec. 1.91(a)(2) of the Family Code provides that a marriage may be proved by evidence that they agreed to be married and after the agreement they lived together as husband and wife in this state and there represented to others that they were married. The Appellant next argues that these requirements of their living together within the state and there representing their marriage to others should be read into the validation provisions of Sec. 2.22 and require the living together and the representation to be performed within this state. The argument is overruled as Sec. 2.22 does not require these acts to be performed in Texas.

The final argument of the Appellant is based on the rule that generally the validity of a marriage is determined by the law of the place where it was contracted or celebrated, Speers, Marital Rights in Texas, 4th Ed., § 35 at 39, and the State of Nevada does not recognize a common-law marriage. The Appellant called the trial Court’s attention to the Nevada law by a written brief which he filed. This is not of record, but is so stated by the Appellant. However, in the absence of findings of fact and conclusions of law, and on the record presented, this Court is required to affirm the judgment of the trial Court on the basis that it is presumed that it found the Nevada law to be the same as the Texas law. It was required to so find in the absence of a proper notice and motion as called for by Rule 184a. The point and the sub-points thereunder are all overruled.

Appellant urges a remand in order that the Nevada law may be properly presented. This cannot be done since Rule 434 prohibits reversal for harmless error, and discretion to remand exists only after it has been determined that error exists that requires reversal. “Remand is only upon reversal; reversal is only for error.” Appellate Procedure in Texas, § 18.2.

The judgment of the trial Court is affirmed.

PRESLAR, C. J., not sitting.


author: OSBORN, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, INC., et al., Appellants/Appellees, v. J. Ross RUCKER et al., Appellees/Appellants.
    No. 6427.
    Court of Civil Appeals of Texas, El Paso.
    May 12, 1976.
    Rehearing Denied June 9, 1976.

      Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., James M. O’Leary, Perry Davis, Jr., Odessa, Marlin L. Gilbert, James E. Bar-den, San Antonio, for appellants/appellees.
    A. R. Archer, Jr., Monahans, Max E. Ramsey, Odessa, for appellees/appellants.
   OPINION

OSBORN, Justice.

This case presents an appeal by both parties in a suit originally filed by the owners of radio station KVKM in Monahans, Texas, against Southwestern Bell Telephone Company and its local manager, John Zittle, for damages. Based upon jury findings of negligence and gross negligence, a judgment was entered for the plaintiffs for $2,000.00 actual damages and $35,000.00 exemplary damages. In addition, the trial Court awarded the Telephone Company judgment against the station owners for $2,872.30 on a stipulated debt for services rendered. We reverse and render the judgment against the Telephone Company and affirm the judgment against the station owners.

The broadcast studio of KVKM is located on the north side of Monahans and the transmitter is six miles north of the studio. In addition to regular telephone service to the studio, the Telephone Company also provides remote control lines from the studio to the transmitter in order that the transmitter may be operated by personnel at the studio. It is possible to operate the transmitter without the remote control lines, but this requires personnel to be at the transmitter site. KVKM broadcasts certain high school athletic events, including football and baseball games, and these require telephone lines from the stadium where each game is played. In addition, Sunday morning church services are broadcast nine months each year from the First Baptist Church and three months each year from the First Methodist Church through the use of Telephone Company lines. Other special broadcasts also require the use of Telephone Company lines.

The owners of the station, being the plaintiffs, alleged that in March, April, and May, 1971, the defendant’s employees disconnected the remote control lines at a terminal between the studio and transmitter causing a sudden excessive surge of voltage, resulting in the blowing of fuses, and interruption of broadcast service, and damage to the transmitter facilities. On August 17,1971, the remote control lines were intentionally disconnected when plaintiffs failed to pay the defendant for past due charges, and this was alleged to have resulted in interruption of broadcast services and additional damage at the transmitter.

Plaintiffs also alleged an inability to broadcast several football and baseball games in 1970, 1971, and 1972 because the Telephone Company failed to provide proper connections for remote lines at the designated stadiums. Similar allegations were made concerning a broadcast to be made from a Jaycee carnival in 1973. The inability to make these broadcasts allegedly resulted in loss of sponsors and revenues and materially damaged the credibility of the station in the local community resulting in a reduction in value of the station. In addition, in March, 1972, the lines to the First Baptist Church and the First Methodist Church were crossed and the service from each church was heard in the sanctuary of the other church, resulting in a disruption of religious services carried by the radio station.

By a partial summary judgment, the trial Court determined that certain Telephone Company Tariffs and the one-year statute of limitations provided for in the Communications Act of 1934, barred or limited recovery as to all conduct of the defendant except the disconnecting of remote control lines on August 17, 1971, although evidence of the other acts were admitted on the issues relating to malice and exemplary damages. With regard to the August incident, Mr. Zittle wrote to Ross Rucker, an owner and general manager of the station, on August 3, 1971, advising that unless a payment of $1,000.00 was received, by August 16, 1971, telephone service would be suspended on Tuesday morning, August 17, 1971. On the afternoon of August 17th, Mr. Zittle called the station and was told by Mr. Rucker .that no payment had been made. Mr. Zittle said he told Mr. Rucker that the lines would be cut off, and he had a work order issued to accomplish that purpose, knowing that the station could still broadcast with personnel at the transmitter. In the meantime, Mr. Rucker called Mr. Fyffe with the Telephone Company in Lubbock and said he received an assurance that the lines would not be disconnected. Mr. Fyffe denied this in his testimony and said he told Mr. Rucker that he would not countermand Mr. Zittle’s determination to disconnect the lines. When a serviceman disconnected the lines at 5:00 o’clock P.M., the station went off the air. Since that was not intended by Mr. Zittle, he went to the transmitter, met the service employee, and had the lines reconnected. Thereafter the station experienced considerable difficulty and an independent engineer concluded that the lines had been reversed when they were reconnected. After a change in connections, the difficulties were alleviated as to the transmitter operations.

Much of the testimony was in dispute and the Telephone Company offered evidence to show that some of the broadcast problems related to poor maintenance at the station, some problems related to remote lines furnished by General Telephone Company and other companies unrelated to Southwestern Bell Telephone Company, and some of the problems were related to errors on the part of the remote broadcasters at the various athletic events. The record consists of over 270 pages of transcript, five volumes of testimony, and five volumes of exhibits. The jury found that on August 17, 1971, Mr. Zittle was an agent of the Telephone Company, acting in a managerial capacity, and he was in the scope of his employment when he ordered the remote control lines disconnected. They failed to find that the Telephone Company authorized or ratified his acts in having the lines disconnected, and also failed to find that plaintiffs contended that there were overcharges made by the Telephone Company on these lines. The jury found the Telephone Company and its manager did not act with malice, and that the lines were disconnected because of plaintiffs’ failure to pay its bill. They found that the manner in which the Company caused the lines to be reconnected was negligence, such negligence was a proximate cause of plaintiffs’ damages, and that such negligence amounted to gross negligence, and damages as provided for in the judgment against the Telephone Company. The Telephone Company and its manager present 11 points of error in their appeal which we shall consider first, and then we shall consider the 16 points of error in the appeal by the owners of the station.

The first point urges that the trial Court erred in entering judgment in an amount in excess of that allowed under the applicable tariff. The General Private Line Services and Channels Tariff in effect at the time provides:

“The liability of the Telephone Company for damages arising out of mistakes, omissions, interruptions, delays, or errors or defects in transmission occurring in the course of furnishing service, channels or other facilities and not caused by the negligence of the customer, or of the Telephone Company in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision, shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during which such mistake, omission, interruption, delay, or error or defect in transmission occurs.”

“There can be no question as to the right of a telephone company doing a general public business to establish reasonable rules and regulations for furnishing service to patrons and for the conduct of its business. Ordinarily regulations so made will be presumed to be reasonable and necessary, unless the contrary is shown.” Kelly v. Southwestern Bell Telephone Co., 248 S.W. 658 (Tex.Comm.App., 1923, judgmt. adopted). The Tariff is binding on a subscriber to a company’s telephone service and its effect is not dependent on the subscriber’s actual knowledge of the Tariff. Alcazar v. Southwestern Bell Telephone Company, 353 S.W.2d 933 (Tex.Civ.App., Austin 1962, no writ). Tariffs are even recognized as having the force and effect of law. Carter v. American Telephone & Telegraph Company, 365 F.2d 486 (5th Cir. 1966), cert. denied, 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967).

Appellants rely upon several cases limiting liability under a contract or tariff where there was a failure to print a listing in the yellow pages of a telephone book. Russell v. Southwestern Bell Telephone Company, 130 F.Supp. 130 (E.D.Tex.1955); Wade v. Southwestern Bell Telephone Company, 352 S.W.2d 460 (Tex.Civ.App., Austin 1961, no writ). They also cite cases holding that provisions of a tariff apply in a case of trespass and in a suit for damages for failure to provide uninterrupted private line service. See Alcazar v. Southwestern Bell Telephone Company, supra; and American Telephone and Telegraph Company v. Florida-Texas Freight, Inc., 357 F.Supp. 977 (S.D.Fla.1973).

The station owners urge that, where negligence is the basis of the cause of action, recovery may be had for damages sustained under the holding in Mountain States Tel. & Tel. Co. v. Hinchcliffe, 204 F.2d 381 (10th Cir. 1953). As noted in American Telephone and Telegraph Company v. Florida-Texas Freight, Inc., supra, the Hinchcliffe decision is inapplicable where a tariff is in effect.

Practically the same identical tariff as relied upon by the Telephone Company in this case was considered by the Court in Southern Bell Telephone & Telegraph Company v. Invenchek, Inc., 130 Ga.App. 798, 204 S.E.2d 457 (1974). In that case, the Court said:

“The question raised in this case is this: Where a telephone subscriber claims damages due to negligence on the part of the company in curtailing service, may the company defend based on the Commission General Subscriber Services Tariff § A2.4.4: ‘The liability of the Telephone Company for damages arising out of mistake, omissions, interruptions, delays, errors or defects in transmission, or failures or defects in facilities furnished by the Telephone Company, occurring in the course of furnishing service or other facilities and not caused by the negligence of the customer, or of the Telephone Company in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during which such mistakes, omissions, interruptions, delay or error or defect in transmission, or failure or defect in facilities occurs.’ ⅜ * * ”

The Court concluded:

“ * * * Counts 1 and 2 of the petition, based on negligence, are subject to the defense pleaded under the above quoted tariff, * *

The only exception to the rule seems to be where the conduct of the utility company has been willful and wanton or the result of gross negligence. Southern Bell Telephone & Telegraph Company v. Invenchek, supra; Holman v. Southwestern Bell Telephone Company, 358 F.Supp. 727 (D.Kan.1973); Weld v. Postal Telegraph Cable Co., 199 N.Y. 88, 92 N.E. 415 (1910).

We sustain the first point of error insofar as actual damages were awarded against the Telephone Company based upon the jury finding of negligence. The Tariff limits liability to an amount equivalent to the proportionate charge to the customer for the period of service involved in the interruption. The Tariff does not limit liability as to Company employees, and as to the Appellant-Zittle the first point is overruled.

It is contended in Point of Error IIA that there is no evidence to support the jury finding that the manner in which the Telephone Company and Zittle caused the remote control lines to be reconnected was negligence. In view of our having sustained Point of Error I as to the Telephone Company, this issue is relevant only as to the conduct of Mr. Zittle. We review the evidence under the standard no evidence test, considering only the evidence and inferences tending to support the finding and disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

The evidence reflects that on the afternoon of August 17, 1971, Mr. Zittle was listening to KYKM on the radio at his office when Mr. Knott disconnected the remote control lines and the station went off the air. He immediately had Mr. Justice, the wire chief, contact Mr. Knott on his radio and ask him to return to the transmitter. Mr. Zittle and Mr. Justice drove to the transmitter. While they were there, along with Mr. Rucker, Mr. Knott reconnected the lines on a Telephone Company pole and at the transmitter building. Mr. Zittle did not assist in the reconnection and apparently gave no instructions other than to have the lines reconnected. Although the evidence from Mr. Davenport, an independent engineer, would support a finding that the lines were reversed when they were reconnected, such act was the act of Mr. Knott, and not Mr. Zittle, and Mr. Knott was an employee of the Telephone Company and not Mr. Zittle. There being no evidence of negligence on the part of Mr. Zittle when the remote lines were reconnected, we sustain Point of Error IIA as to the Appellant, John Zittle. The above holding makes Points of Error IIB, IIC, IIIA, IIIB, and IIIC immaterial and we need not pass on them.

Points of Error IVA, IVB and I VC attack the finding of gross negligence on the grounds of no evidence, insufficient evidence, and as being against the great weight of the evidence. Although Tariffs generally limit the Telephone Company’s liability for ordinary negligence, as noted above, they do not generally limit liability for gross negligence. Having concluded that Mr. Zittle was not negligent, we also conclude for the same reason that there is no evidence of any gross negligence on his part. As to the Telephone Company, the evidence is clear, and the jury found that the remote lines were disconnected because the station owners had failed to pay their telephone bill which was several months delinquent. Mr. Zittle knew that if the lines were disconnected the station could still broadcast by having personnel at the transmitter. When the broadcast stopped shortly before 5:00 o’clock P.M. on August 17, 1971, Mr. Zittle had Mr. Justice contact the service employee, Mr. Knott, with instructions to reconnect the lines and the two of them went to the transmitter to see that they were reconnected. Mr. Knott did in fact reconnect the lines but, according to the consulting engineer, they were crossed or reversed when the reconnection was made. While the record is replete with instances when the station could not broadcast because of problems with Telephone Company lines, or interference with lines between the station and the transmitter, we find no evidence that the error in reconnecting the remote control lines at the transmitter resulted from an entire want of care which would raise the belief that the acts or omissions were the result of a conscious indifference to the rights or welfare of the persons to be affected by them. This has long been the requirement in gross negligence cases. Missouri Pac. Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408 (1888).

Even where an order was given or an affirmative act performed, which brought about the injury which resulted from a particular incident, Courts have held that there was no gross negligence. Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709 (1943); LeJeune v. Gulf States Utilities Company, 410 S.W.2d 44 (Tex.Civ.App., Beaumont 1966, writ ref’d n. r. e.). Even unlawful conduct which was in violation of a city ordinance did not meet the requirement. Loyd Electric Company v. DeHoyos, 409 S.W.2d 893 (Tex.Civ.App., San Antonio 1966, writ ref’d).

Further, there is no evidence that the act of reconnecting the remote control lines, even if done in a manner constituting gross negligence, was an act of the corporation rather than an employee. All of the work was performed by Kenneth Knott, an installer-repairman. There is no evidence that he was a “vice-principal” for whose conduct exemplary damages could be awarded against the corporation, under the rule stated in Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934). The no evidence point is sustained.

We would also sustain the insufficient evidence point in the event we be in error as to the no evidence point. When the entire record is considered, there is much evidence that some of the broadcast problems arose not from acts or omissions of the Telephone Company but from acts or omissions of the station broadcast personnel. Considering all the evidence, it appears that both the Telephone Company and the station personnel made some mistakes, and perhaps both were on occasion guilty of negligent conduct which affected the broadcast facilities, but none of the conduct appears to have resulted from a conscious indifference to the rights of others affected thereby.

Having concluded that the Telephone Company’s liability is limited as provided for in the Tariff, and that there is no liability upon the part of John Zittle, the other points of error raised by these parties as Appellants become immaterial and need not be determined.

The station owners, by their first point of error, contend that the trial Court erred in granting the Telephone Company’s motion for partial summary judgment. By the fifteenth point of error, it is contended that the trial Court erred in failing to grant a motion to modify and amend the final judgment and sever those causes of action decided by the partial summary judgment. In granting the partial summary judgment, the trial Court ruled that the causes of action for loss or interruption of various football broadcasts in 1970 and a baseball broadcast in May, 1972, were barred by the one-year statute of limitations set forth in Section 415(b) of the Communications Act of 1934. 47 U.S.C.A. 415. The Court also ruled that causes of action for damages in connection with the football broadcasts in September and October, 1971, the church broadcast in March, 1972, the football broadcast in 1972, a baseball broadcast in April, 1973, and the Jaycee carnival broadcast in July, 1973, were all limited by the provisions of Tariff No. 260. A similar ruling was made under the General Private Lines Services and Channels Tariff with regard to claims concerning loss of services resulting from the disconnection of remote control lines in March, April, and May, 1971. The Court denied the motion as to Zittle.

In Ward v. Northern Ohio Telephone Company, 251 F.Supp. 606 (N.D.Ohio 1966), the Court, in a summary judgment case, concluded that the Federal rather than the State limitation statute applied in a claim arising from an alleged refusal or failure to give telephone and wire service to the plaintiff. This holding was made as to all claims filed in Court and not based on overcharges. The summary judgment was affirmed on appeal. Ward v. Northern Ohio Telephone Company, 381 F.2d 16 (6th Cir. 1967). The Federal rather than the State statute of limitations was also applied in Hofler v. American Telephone and Tele graph Company, 328 F.Supp. 893 (E.D.Va.1971), and in Swarthout v. Michigan Bell Telephone Company, 504 F.2d 748 (6th Cir. 1974).

With regard to the application of tariffs, the same basic issue is again presented as was raised by the Telephone Company in its first point of error. Following the holding in the Invenchek case, we conclude that the tariffs do apply to negligence as well as to contract cases. In American Telephone and Telegraph Company v. Florida-Texas Freight, Inc., supra, where reliance was placed upon the Hinchcliffe case, as it is here by the station owners, the Court held that “the rights and liabilities of the parties in this lawsuit are governed exclusively by Tariff No. 260.” (Emphasis added). Having concluded that the trial Court correctly decided the motion for partial summary judgment, the two points of error are overruled.

The next two points complain about a failure to submit certain requested special issues. The issues inquired whether the Telephone Company’s conduct from 1970 through 1973 was actuated by malice, was gross negligence, and whether the station owners were entitled to exemplary damages. As noted above, at least some of the conduct during the years inquired about was barred by limitations and, therefore, the issues as requested were not in substantially correct wording and should not have been submitted. Rule 279, Tex.R.Civ.P.; Ybanez v. Anchor Constructors, Inc., 489 S.W.2d 730 (Tex.Civ.App., Corpus Christi 1972, writ ref’d n. r. e.). Points of error two and three are overruled.

The next three points complain about the submission of Special Issue No. 6 which inquired as to whether the station owners contended there were overcharges on the remote lines when they were disconnected on August 17, 1971, and the Court’s instruction as to the right to disconnect for non-payment of sums due the Telephone Company, and also as to a failure to submit a requested issue which inquired as to a contention by the owners of overcharges on all lines and not just remote control lines. The trial Court having properly granted the motion for summary judgment, the issues as submitted properly limited the case on the issue the trial Court submitted to the jury. Under our determination of other issues as to liability between the parties, the issue raised by these points must necessarily be harmless error. Rule 434, Tex.R. Civ.P. Points of error four, five, and six are overruled.

The next point complains of a failure to submit requested special issues which inquired about Mr. Fyffe making false representations that the remote controlled lines would not be disconnected and whether the station owners relied upon such representation. The requested issues did not inquire whether the false representation was made for the purpose of being acted upon by the defrauded party although this was an essential element of the cause of action. Brady v. Johnson, 512 S.W.2d 359 (Tex.Civ.App., Austin 1974, no writ); Radio. KBUY, Inc. v. Lieurance, 390 S.W.2d 16 (Tex.Civ.App., Amarillo 1965, no writ). Point of error number seven is overruled.

The following point complains about a failure to submit a series of requested issues inquiring about a failure of the Telephone Company to ascertain if the station transmitter was being operated manually prior to disconnecting the remote control lines and whether such failure was actuated by malice and whether the failure constituted gross negligence. The jury found that the remote control lines were disconnected because of a failure to pay the sum due for such lines. The Tariff provided such a right. Having such a right, and having acted under the Tariff, there was no duty to inquire as to manual operation of the transmitter. As noted earlier, the parties’ rights were governed exclusively by the Tariff. American Telephone and Telegraph Company v. Florida-Texas Freight, Inc., supra. Point of error number eight is overruled.

The next two points urge the trial Court erred in instructing the jury, concerning the provisions of the General Private Line Services and Channels Tariff, that service could be disconnected for nonpayment of any sum due the Telephone Company. Rule 277, Tex.R.Civ.P., requires the Court to submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict. Where there exists some doubt or question as to a party’s right or duty, an instruction is proper. City of Beaumont v. Henderson, 349 S.W.2d 301 (Tex.Civ.App., Beaumont 1961, no writ). By removing the objection that such instructions render the charge a general charge, the Supreme Court obviously intended to broaden the authority of the trial Court to give instructions. When exemplary damages were sought, the trial Court properly instructed as to the right under which the Company acted in disconnecting the remote control lines. 17 Tex. Jur.2d, Damages, § 179. In any event, we find no reversible error. Points of error nine and ten are overruled.

Point of error number eleven contends the trial Court erred in assuming in an instruction to the jury that the station owners owed the Telephone Company for services with regard to the remote control lines. Mr. Zittle testified that in August, 1971, the balance for one remote control line was $161.21, and for the other line the balance was $246.82. Mr. Rucker admitted that he did not have the money to pay the bill and no payment was made after the letter from Mr. Zittle on August 3, 1971. The instruction did not assume the amount owed, but only that charges were owed on the remote control lines. Under the undisputed evidence the instruction was proper. Point of error number eleven is overruled.

The station owners next contend that the trial Court erred in the submission of Special Issue No. 11 which inquired whether the remote control lines were disconnected because of the failure to pay sums due for such lines. The Tariff gave such a right and the jury found that the right was exercised. There was no necessity to first determine if there was some amount due, because it was undisputed that the station was delinquent on its account and payment was not made prior to August 17, 1971. No suggestion was made of any prejudice resulting from the issue and any error would be harmless Rule 434, Tex.R. Civ.P. Points of error twelve and thirteen are overruled.

The next point urges error in the trial Court in failing to inquire whether or not the Telephone Company complied with the notice in writing as required by the Tariff before disconnecting the lines.' The undisputed proof established that written notice was sent on August 3, 1971, and received by Mr. Rucker a day or two later. We believe the notice which referred to “telephone service” must necessarily have included “remote control lines” which were a part of the service provided by the Telephone Company. Point of error number fourteen is overruled.

The last point complains of the trial Court’s order which prohibited the radio station from commenting on the trial during its progress. The owners do not suggest any harm from such order and we find none. Rule 434, Tex.R.Civ.P. Point of error number sixteen is overruled.

The judgment of the trial Court in favor of Southwestern Bell Telephone Company for $2,872.30 is affirmed, and the judgment against Southwestern Bell Telephone Company and John Zittle for $37,000.00 is reversed and judgment rendered denying the station owners any recovery against Southwestern Bell Telephone Company or John Zittle. Although the station owners were entitled under the Tariffs and the partial summary judgment to recover an amount equivalent to the proportionate charge for the period of service involved, there was no proof nor issues requested and these damages were waived.


author: BARROW, Chief Justice.

text:
    Roland A. EISENHAUER, Executor, Appellant, v. Edward A. WILLIAMS, Jr., et al., Appellees.
    No. 15522.
    Court of Civil Appeals of Texas, San Antonio.
    May 12, 1976.
    Charles M. Beacham, San Antonio, for appellant.
    Benjamin N. Samples, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellant, Roland A. Eisenhauer, Executor of the Estate-of Julia H. Taylor, Deceased, has perfected his appeal from an order sustaining appellee’s plea in abatement and dismissing appellant’s suit for construction of a will.

The holographic will of Julia H. Taylor was admitted to probate in the County Court of Bexar County on January 2, 1975, and Letters Testamentary were granted to appellant. On July 25, 1975, while the probate proceedings were still pending in the County Court, appellant filed this action in the 150th Judicial District Court of Bexar County under the Uniform Declaratory Judgment Act seeking a construction and interpretation of said will. Appellee, Edward A. Williams, Jr., filed his plea in abatement wherein it was asserted that the will had been originally filed for probate in the County Court of Bexar County and that this estate was still pending in that Court.

Appellant urges by his sole point of error that the District Court erred in concluding that it did not have jurisdiction to construe a will. Such point is based on a faulty premise in that the District Court did not so conclude. Rather, the Court found that “by virtue of the Probate Court of Bexar County having already heretofore acquired jurisdiction of this matter” the plea in abatement should be sustained.

Bexar County has a statutory county court exercising the jurisdiction of a probate court; therefore, such court has original probate jurisdiction with the power to hear all matters incident to an estate including an action to construe the will. Sec. 5, Texas Probate Code, Tex.Rev.Civ. Stat.Ann.

A suit for declaratory judgment will not be entertained if there is pending, at the time it is filed, another action or proceeding between the same parties and in which may be adjudicated the issues involved in the declaratory action. Texas Liquor Control Board v. Canyon Creek Land Corporation, 456 S.W.2d 891 (Tex.1970).

Here the Probate Court acquired jurisdiction of the estate with power to construe the will prior to the suit being filed in the District Court. The District Court did not err in sustaining the plea in abatement.

The judgment is affirmed.


author: KEITH, Justice.

text:
    The UPJOHN COMPANY, Appellant, v. PETRO CHEMICALS SUPPLIERS, INC., et al., Appellees.
    No. 7816.
    Court of Civil Appeals of Texas, Beaumont.
    May 13, 1976.
    Rehearing Denied June 3, 1976.

      Finis E. Cowan, Houston, for appellant.
    Richard DeGuerin, Houston, for appel-lees.
   KEITH, Justice.

This is a commercial bribery case wherein Upjohn sought recovery of large sums of money from the corporate defendant and certain of its officers and directors. During the year 1968 and continuing until August of 1970, John Dugas was the purchasing agent of Upjohn at its LaPorte chemical plant. During that period Dugas caused Upjohn to purchase 136,686.25 feet of stainless steel pipe of varying dimensions from Petro Chem and Upjohn paid Petro Chem $1,310,151 therefor. This pipe cost Petro Chem $571,232; but, Petro Chem paid and Dugas accepted approximately $270,000 in cash from Petro Chem as a bribe.

Dugas was able to subvert the normal auditing and accounting systems of his employer and ordered large quantities of expensive stainless steel pipe which was not needed and much of this material was on hand at the time Dugas committed suicide on August 6, 1970.

Petro Chem was and is a closely held corporation and its officers and directors had knowledge, from the inception of the bribery scheme, of all of the details and ramifications thereof. Indeed, at the insistence of one of the directors, who was also a certified public accountant doing the corporate tax work, Petro Chem filed an amended return for the year 1968 to show payments to Dugas as commissions rather than as costs of goods sold as originally reported. Thereafter, the payments to Dugas were reported to the Internal Revenue Service on Form 1099 as commissions.

Upjohn brought suit alleging a conspiracy between Petro Chem and its officers with Dugas to defraud Upjohn for which it sought its actual and exemplary damages. The defendants answered by a general denial. The cause was submitted to the jury upon special issues and a judgment was entered in favor of Upjohn against Petro Chem in the sum of $32,924 and against two of the individuals in the sum of $7,500 each, the latter awards being for exemplary damages. All further relief was denied and Upjohn has filed a limited appeal from the order overruling its amended motion for new trial. The defendants have perfected an appeal from the adverse portions of the judgment.

It is obvious from a reading of Upjohn’s trial pleadings that its theory of the case was that set out and established in Kinzbach Tool Co., Inc. v. Corbett-Wallace Corporation, 138 Tex. 565, 160 S.W.2d 509.

The trial court properly disregarded the jury answers to the first four special issues and held that Upjohn had established liability as a matter of law. The main thrust of the Upjohn appeal is that the answers returned by the jury to Special Issues Nos. 7 and 8 as well as those to Nos. 10 and 11 are contrary to the great weight and overwhelming preponderance of the evidence in that the evidence “as a matter of law, compelled different answers” to said issues.

Special Issue No. 7 reads:

“What do you find from a preponderance of the evidence to be the amount of money paid by the Upjohn Company to Petro Chemicals Suppliers, Inc., during calendar years 1968, 1969 and 1970 for stainless steel pipe purchased by the Upjohn Company as a direct and proximate result of the monies paid to Dugas by the defendants herein?”

To which the jury answered: “$325,967.00.”

Special Issue No. 8 reads:

“What do you find from a preponderance of the evidence to be the fair market value of the stainless steel pipe purchased by the Upjohn Company as a direct and proximate result of the monies paid to Dugas by the Defendants herein after discovery by Dugas’ superiors of the payments to him?”

This was followed by a definition of fair market value; and, the jury answered the issue by stating “None.”

We sustain Upjohn’s point two and agree that these answers are contrary to the great weight and overwhelming preponderance of the evidence.

The evidence pertaining to Special Issue No. 7 is essentially undisputed, consisting of documentary evidence taken by an accountant from the books and records of Petro Chem and Upjohn. Plaintiff’s records were tendered to defendants prior to trial and the testimony of the auditor was admissible under the voluminous records exception to the hearsay rule.

In Cooper Petroleum Co. v. LaGloria Oil and Gas Co., 436 S.W.2d 889, 891 (Tex.1969), the Court used this language:

“We recognize that a tabulated schedule or summary of voluminous records may, in the discretion of the trial court, be admitted to expedite the trial and aid the trier of fact. See Wigmore on Evidence, 3rd ed. 1940, § 1230.”

See also, 2 C. McCormick & R. Ray, Texas Law of Evidence § 1566, at 409, 413 (2d Ed. 1956), and Moore v. Moore, 430 S.W.2d 247, 252 (Tex.Civ.App.-Dallas 1968, writ ref’d n. r. e.).

It would unduly lengthen this opinion to set out the details of the testimony, it being sufficient to state that in connection with the testimony of Upjohn’s auditor, Wise, Plaintiff’s Exhibit No. 21 was admitted into evidence without objection. This exhibit tabulated the invoices relating to stainless steel pipe and the amounts paid pursuant thereto. It was shown that Petro Chem received from Upjohn during 1968, 1969, and 1970 (prior to Dugas’ death), more than one million three hundred thousand dollars. Wise’s examination of the books of Petro Chem revealed that its markup on the pipe sold to Upjohn was greatly in excess of its average markup on similar pipe sold to customers whose purchasing agents were not being bribed. We are unable to determine where the jury obtained the figure of $325,967 used in answer to Special Issue No. 7. We are of the opinion that the jury’s answer to Special Issue No. 7 is contrary to the overwhelming preponderance of the evidence and the evidence is factually insufficient to support the answer thereto. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

There is even less support for the jury’s answer to Special Issue No. 8. It seems uncontradicted in our record that Upjohn faced the problem of disposing of a large quantity of stainless steel pipe which it did not need. Over a period of almost two years, Wise endeavored to dispose of this surplus pipe. The record is complete with the details of his efforts and the testimony stands uncontradicted in the record. He finally sold the surplus for $429,463.

Again, finding the answer contrary to the weight and preponderance of the evidence, we set it aside. Garza v. Alviar, supra.

Having sustained Upjohn’s points one and two, the judgment from which Upjohn appealed must be reversed. We have reviewed the remaining points in the Upjohn brief and find none which, if sustained, would require a rendition of the judgment in its favor; consequently, we need not consider points three and four complaining of the factual insufficiency of the jury’s answers to Special Issues Nos. 10 and 11.

However, point five raises a question which we feel should be considered in view of the probability of another trial. Defendants were permitted to prove by Upjohn’s auditor that it had a seventy percent markup or gross profit margin in its pharmaceutical business. We fail to see the materiality of such evidence and the possibility of injury to the plaintiff is apparent. Upon another trial, such evidence should not be admitted. See Coca Cola Bottling Co. v. Tannahill, 235 S.W.2d 224, 226 (Tex.Civ.App.—Fort Worth 1950, writ dism’d); 23 Tex.Jur.2d, Evidence § 157, at 242, 243 (1961). We do not find the language in Turner v. Turner, 385 S.W.2d 230, 238 (Tex.1964), to be controlling or even persuasive.

Defendants have several cross-points challenging the award against Petro Chem based upon the finding of mutual mistake (see fn. 1, supra), and the exemplary damages awards against the individual defendants, Rosenstein and Jackson. Petro Chem also complains that the trial court did not award it an offset for the amount Upjohn admittedly owed Petro Chem upon unpaid invoices.

Although none of the defendants filed a motion for new trial, the defendants did note their exceptions to the entry of the judgment. We have jurisdiction to pass upon such cross-points. Payne v. Lucas, 517 S.W.2d 602, 608 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.).

Turning first to the claim of Petro Chem against Upjohn upon the unpaid invoices, we are of the opinion that this was a compulsory counterclaim under the provisions of Tex.R.Civ.P. 97(a) governed by subdivision (g) thereof since it was one which arose out of and was incident to and is connected with same. See Powell v. Short, 308 S.W.2d 532, 534 (Tex.Civ.App.—Amarillo, 1957, no writ). See also: 2 R. McDonald, Texas Civil Practice § 7.49, at 283, 285 (1970 Rev.Vol.); and Skidmore v. Cook, 417 S.W.2d 79, 81 (Tex.Civ.App.—San Antonio 1967, writ dism’d).

As indicated earlier, Petro Chem answered by a general denial only and had no pleadings seeking any affirmative relief. The trial court did not err in denying Petro Chem any recovery upon the invoices. McDonald, supra, at 286-287; Harris v. Jones, 404 S.W.2d 349 (Tex.Civ.App.—Eastland 1966, writ ref’d).

When we turn to Petro Chem’s complaint of the award of damages by reason of the mutual mistake, we find that the sole attack is that such contractual claim was barred by limitations. The simple answer to the contention now advanced is that Pe-tro Chem did not plead the statutes of limitation as required by Tex.R.Civ.P. -94, nor did it seek leave to file such a pleading after leave had been granted to Upjohn to file its trial amendment seeking recovery under the theory of mutual mistake.

Since no defensive plea was interposed, as required by the Rule, no error is shown. See and compare Aubin v. Hunsucker, 481 S.W.2d 952, 957 (Tex.Civ.App.—Austin 1972, writ ref’d n. r. e.).

The individual defendants, Rosenstein and Jackson, complain of the allowance of exemplary damages when there was no award of actual damages. We sustain the point. The rule that exemplary damages may not be recovered unless plaintiff is shown to have sustained actual loss or injury is well settled by dozens of cases cited by the text writer in 17 Tex.Jur.2d, Damages § 177, at 248 (2d Ed. 1960), to which we refer.

Having found error in the proceedings in the court below, we enter judgment reversing and remanding the cause of Upjohn relating to the issues of commercial bribery; the judgment awarding Upjohn exemplary damages against the individual defendants, Rosenstein and Jackson, is reversed and this cause is remanded for a new trial. These errors affect a part only of the matter in controversy, and the issues as to commercial bribery and mutual mistake are severable, the judgment awarding Upjohn a recovery against Petro Chem under the theory of mutual mistake is severed from the remainder of the case and that portion of the judgment is affirmed. The portion of the judgment denying to Petro Chem a recovery upon the unpaid invoices is likewise severed from the remainder of the case and that portion of the judgment is affirmed.

Affirmed in part and in part reversed and remanded.

      . The jury found in answer to Special Issues Nos. 5 and 6 that this sum had been paid by Upjohn to Petro Chem by mutual mistake, the items purchased being bolts, sandpaper, paint brushes, etc.

      . This series of issues, identical except as to the name of an officer-director of Petro Chem, inquired if such officer “knew or should have known that such payments [by Petro Chem to Dugas] were likely to induce or would induce John Dugas to breach his duty to The Upjohn Company to the damage and detriment of The Upjohn Company?” Each issue was answered “We do not” but the trial court, upon an appropriate motion, disregarded the answers.

      . These complaints brought forward by the defendants are labeled “counter” points but we treat them as “cross-” points in accordance with the liberal rules relating to the filing of briefs. See discussion in Harris v. Texas Employers’ Insurance Association, 447 S.W.2d 211, 214 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.).


author: DIES, Chief Justice. KEITH, Justice

text:
    George McGOVERN, Appellant, v. AMERICAN AIRLINES, INC., et al., Appellees.
    No. 7824.
    Court of Civil Appeals of Texas, Beaumont.
    May 13, 1976.
    Rehearing Denied June 3, 1976.

      Arthur Gochman, San Antonio, Quinnan H. Hodges, Houston, for appellant.
    W. B. Edwards, Ralph S. Carrigan, Fulbright & Jaworski, B. J. Bradshaw, C. M. Hudspeth, Houston, W. B. West, Morris Harrell, Michael Byrd, Dallas, C. E. Fitch, Houston, for appellees.
   DIES, Chief Justice.

George McGovern, appellant (plaintiff below) brought this suit against American Airlines, Inc., Ashland Oil, Inc., Braniff Airways, Inc., Goodyear Tire & Rubber Company, Gulf Oil Corporation, Minnesota Mining and Manufacturing Company, and Phillips Petroleum Company, appellees (defendants below) seeking damages under the Texas Election Code for illegal campaign contributions by appellees to Richard M. Nixon’s 1972 presidential election campaign. Defendant, Minnesota Mining and Manufacturing Company, was dismissed. All other defendants were granted judgment on their motion for summary judgment, from which McGovern perfects this appeal.

The suit below was based on Tex.Election Code Ann. art. 14.07 (1967), relevant sections of which are set forth:

“Art. 14.07 Corporations Not To Contribute
“(a) Except to the extent permitted in Article 213 of the Penal Code of Texas, 1925, no corporation shall give, lend or pay any money or other thing of value, or promise to give, lend, or pay any money or other thing of value, directly or indirectly, to any candidate, campaign manager, assistant campaign manager, or any other person, for the purpose of aiding or defeating the nomination or election of any candidate or of aiding or defeating the approval of any political measure submitted to a vote of the people of this state or any subdivision thereof; provided, however, that nothing in this section or in Article 213 of the Penal Code shall prevent the making of a loan or loans to any candidate for campaign purposes by any corporation which is legally engaged in the business of lending money and which has conducted such business continuously for more than one year prior to the making of such loan, provided the loan is made in due course of business and is not directly or indirectly a contribution.
“(b) Any corporation making or promising a gift, loan, or payment to any candidate, campaign manager, assistant campaign manager, or other person in violation of Paragraph (a) of this Section [this article] shall be civilly liable for double the amount or value of such loan or gift, promised or made, to each opponent of the candidate favored by such gift, loan, or payment, or to the particular candidate or candidates opposed by such gift, loan, or payment.”

In 1974 Congress passed the Federal Election Campaign Act Amendments of 1974, Public Law 93^143, 88 Stat. 1263 (1974), amending Title 2, § 431, et seq., and Title 18, § 591, et seq., of the United States Code, which preempts any provision of state law with respect to election to Federal Office (effective October 15,1974) [See. 104(a) and (b)].

Because of the opening phrase of Sec. 14.07 of the Texas Election Code above set forth (“[ejxcept to the extent permitted in Article 213 of the Penal Code of Texas”) this statute must be read with Art. 15.17 of the Act (which was formerly 213 of the Penal Code).

“Art. 15.17 Corporation Contributing
“(a) No corporation, domestic or foreign, and no officer, director, stockholder, employee or agent, acting in behalf of any corporation, shall directly or indirectly give, pay, expend or contribute or promise to give, pay, expend or contribute any money or thing of value in order to aid or hinder the nomination or election of any person to public office in this State or any district, municipality, or political subdivision thereof, or in order to influence or affect the vote on any question to be voted upon by the qualified voters of this State or any district, municipality, or political subdivision thereof .” etc.

Prior to this amendment in 1941 (47th Leg. p. 789, Chap. 491, Sec. 4) this article (originally enacted in 1907 and subsequently codified as Art. 263 of the 1911 Penal Code and Art. 213 of the 1925 Penal Code) read:

“No ... corporation shall make any money contribution . for the purpose of aiding or defeating the election of any candidate for the office of Representative in Congress, or Presidential or Vice Presidential Electors from this State, or any candidate for any State, district, county or precinct office in this State.” (Emphasis supplied)

In deleting the underlined above from the prohibition, it seems clear to us that the legislature intended to exclude Federal offices. Art. 15.17 does not prohibit political contributions to those seeking Federal offices. Plaintiff had no cause of action at the time this suit was filed. The question arises why apply it to the electors of President and Vice President, and not the candidates themselves. Presumably, the answer is because under the United States Constitution it is technically the electors and not the candidates chosen by the states. U.S. Const. art. II, § 1, cl. 2. Appellants points are overruled. The judgment of the trial court is affirmed.

AFFIRMED.

KEITH, Justice

(concurring).

The doctrine of federal preemption is barely mentioned in the majority opinion; and, since it is my view that this doctrine is dispositive, I address these comments thereto. I will supplement the statement so as to place the facts in focus for the discussion.

Plaintiff, a resident of South Dakota, brought suit against seven corporate defendants, all of whom are alleged to have made illegal campaign contributions during the years 1971 and 1972 for the purpose of aiding in the election of Richard M. Nixon as President of the United States and, thereby, aiding in the defeat of plaintiff in his campaign for the same office.

Plaintiff alleged further that such contributions were made by the defendants in violation of Tex.Election Code Ann. Art. 14.07, effective in 1972, and 18 U.S.C.A. § 610. He then alleged that each defendant was liable for double the amount of each illegal contribution and prayed for his monetary recovery.

It is sufficient to say at this point that the pleadings of the several defendants were sufficient to tender all issues which we reach upon appeal.

I would first point out that plaintiff had no private civil cause of action under the federal statute upon which he relied. Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).

The federal statute mentioned earlier (18 U.S.C.A. § 610) was but a part of a comprehensive statute entitled “Federal Election Campaign Act Amendments of 1974”, Public Law 93-443, 93rd Congress, approved October 15, 1974, and increased substantially the fines for violation of the section and changed many of the definitions in § 591 of the terms used in § 610, §§ 101(e), 102. See footnote 1 in Cort v. Ash, supra.

This statute also contained a section superseding and preempting any provision of state law with reference to federal elections. Under the provisions of Sec. 410(b) of the Act, this preemption of the field became effective “on the date of the enactment of this Act,” October 15, 1974. See U.S.Code, Congressional and Administrative News, 93rd Congress, Second Session, 1974, Vol. 3, Legislative History, p. 5692. Plaintiff filed his suit on June 25, 1975.

I see no necessity for the citation of authorities supporting the proposition that the laws of the United States made pursuant to the Constitution of the United States are supreme under the provisions of Art. 6, Sec. 2 thereof. However, see generally, 16 Am. Jur.2d, Constitutional Law § 54, p. 225 (1964).

Assuming, arguendo, that plaintiff ever could have stated a cause of action under the provisions of the state statute [Election Code, Art. 14.07(b)], after the new federal statute became effective, he could not do so. The leading case in this state is National Carloading Corp. v. Phoenix-El Paso Express, Inc., 142 Tex. 141, 176 S.W.2d 564, 568 (1943), where the Court stated:

“It is generally conceded that a right of action given by a statute may be taken away at any time, even after it has accrued and proceedings have been commenced to enforce it.”

In National Carloading, the Court noted that the courts “have been particularly uniform in reaching this conclusion [set out above] where the right of action is in the nature of a claim by an individual for the recovery of a statutory fine, penalty, or forfeiture.” Id. at 569.

Plaintiff had no vested right to the particular remedy (if any he had ever had under the state statute) either at common law or by statute. See Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex.Civ.App.-Corpus Christi, 1975, writ ref’d n.r. e.), wherein the authorities are discussed in detail.

Plaintiff did not attempt to assert any common law cause of action; he had no cause of action under the federal statute (Cort v. Ash, supra), and there was no valid state statute applicable to the political race in which he was participating. Thus, plaintiff failed to allege a cause of action within the jurisdiction of the district court. The entry of the take nothing judgment, under these conditions, was proper and I join in the affirmation thereof.

      . This is the language to which I refer: “In 1974 Congress passed the Federal Election Campaign Act Amendments of 1974, Public Law 93-443, 88 Stat. 1263 (1974), amending Title 2, § 431, et seq., and Title 18, § 591, et seq., of the United States Code, which preempts any provision of state law with respect to election to Federal Office (effective October 15, 1974) [Sec. 104(a) and (b)].”

      . Plaintiff alleged that each of the corporate defendants “was charged by information in Federal Court with making illegal corporate campaign contributions for the election of Richard M. Nixon,” and this table followed:
      Defendant Date of Filing of Information Date of Alleged Offense Amount Contributed
      American Airlines, Inc. October 17, 1973 March, 1972 $ 75,000
      Ashland Oil, Inc. December 30, 1974 Sept., 1971 & Sept., 1972 100,000
      Braniff Airways, Inc. November 12, 1973 April 6, 1972 40,000
      Goodyear Tire & Rubber Company October 17, 1973 March, 1972 100,000
      Gulf Oil Company November 13, 1973 March 1, 1972 & March 6, 1972 100,000
      Minnesota Mining & Manufacturing Co. October 17, 1973 March, 1972 30,000
      Phillips Petroleum Company December 4, 1973 March 28, 1972 100,000

      . The state court action which we review followed plaintiffs loss of a similar suit in the federal courts. See: McGovern v. American Airlines, Inc. (5th Cir. 1975), 511 F.2d 653, rehearing denied, 514 F.2d 1072.

      . “Sec. 301. Section 403 of the Federal Election Campaign Act of 1971, relating to effect on State law, is amended to read as follows:
      “ ‘Effect on State Law

        “ ‘Sec. 403. The provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.’ ”

      .Attorney General Hill, in opinion H-588, April 21, 1975, advised the Secretary of State: “[I]t is our opinion that effective on October 15, 1974, the Federal Election Campaign Act of 1971, as amended by the Federal Campaign Act Amendments of 1974, preempted and superseded all provisions of Chapter 14 of the Texas Election Code with respect to election to Federal Office.” (emphasis in text)