author: ONION, Presiding Judge. DOUGLAS, Judge,

text:
    Richard Gary NICHOLS, Appellant, v. The STATE of Texas, Appellee.
    No. 53344.
    Court of Criminal Appeals of Texas.
    June 22, 1977.
    Rehearing Denied July 13, 1977.

      Donald W. Rogers, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and John S. Holleman, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction under Article 1160a, Vernon’s Ann.P.C., for assault with intent to murder a police officer. A jury assessed punishment of ten (10) years’ confinement and a $6,000 fine, probated.

Among other grounds of error, appellant asserts that the trial court erred in refusing his requested charge on circumstantial evidence.

The record reflects that around 1:30 a. m. on July 21, 1972, Detective Evans of the Houston Police Department, accompanied by other officers from Houston and Huntsville, converged on a house in a quiet residential neighborhood in Houston. Their mission was to execute arrest warrants and a search warrant from Huntsville. Appellant was not named in any of the warrants.

As the officers were getting out of their unmarked vehicles, Sheriff White from Huntsville accidentally set off the siren in his car, resulting in a loud blast of approximately 20 seconds. Fearing that the siren had alerted the occupants of the house, the officers surrounded the premises. As other officers sought entry at the front door, Detective Evans, Texas Ranger Whitehead and Officer Nuchia ran to the back of the house. Whitehead broke through the back door, slipped and fell on the kitchen floor. Detective Evans followed closely behind, ran over Whitehead and stopped somewhere in the kitchen near an adjoining bedroom door.

Evans testified that during this chaotic entry of the rear of the house he heard Nuchia in the back yard and other officers in front yelling that they were policemen.

Evans further testified that as he came to a halt in the kitchen, he saw the appellant in his underwear standing in the bedroom doorway pointing a rifle at him. Reflexively, Evans aimed his pistol at appellant. Three shots were fired: two from Evans, one from appellant. Neither person was hit. The evidence is conflicting as to who fired the first shot.

By this time, Ranger Whitehead was on his feet again behind Evans in the kitchen. Whitehead testified that he began to yell to appellant that they were police officers. Approximately a minute and a half later, appellant slid his rifle out onto the kitchen floor and surrendered.

It was undisputed that none of the officers were wearing uniforms and that none of their vehicles were marked or visually identifiable as those of a law enforcement agency. Evans wore a brown business suit and did not display a badge. Whitehead was similarly dressed, but had a badge on the inside of his suit coat. Whitehead testified that he made no attempt to identify himself before breaking down the back door. Evans testified that he did not identify himself as a police officer to appellant before the shooting occurred.

Appellant testified that he was sleeping when the affray began; that he awoke to the screams of a female occupant of the house that “Gary, they are killing Mike! that at the time the police entered the house a large commercial-type air conditioning unit was operating loudly in a living room window; that he never heard anyone identify themselves as police before the shooting, and that he never heard the siren go off.

Recently, this court stated in Ransonette v. State, 550 S.W.2d 36 (Tex.Cr.App.1977) (Opinion on Motion for Rehearing), that:

“A charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. See e. g. Wilson v. State, 154 Tex.Cr.R. 59, 225 S.W.2d 173 (1949). A charge on circumstantial evidence is necessary only when the State’s case depends entirely upon circumstances for conviction. See e. g. Nailing v. State, 152 Tex.Cr.R. 161, 211 S.W.2d 757 (1948); Wells v. State, 134 Tex.Cr.R. 412, 115 S.W.2d 658 (1938) . . . See 31 Tex.Jur.2d 682-683, Instructions, Sec. 123

It is apparent from the record that the State offered no direct evidence of appellant’s knowledge, prior to the shooting, that Evans was a police officer. At no time did any officer ever explicitly identify himself to appellant. Appellant testified that he did not know that the police were looking for any of the other occupants of the house. Therefore, proof of appellant’s knowledge that Evans was a police officer — a main fact essential to guilt under Article 1160a, supra — had to have been based entirely on the circumstantial evidence of the loud siren blast and the officers shouting “police” outside the house. Accordingly, it was error for the trial court to refuse appellant’s requested instruction on circumstantial evidence. Ellis v. State, 551 S.W.2d 407 (Tex.Cr.App.1977); Armstrong v. State, 542 S.W.2d 119 (Tex.Cr.App.1976); Draper v. State, 513 S.W.2d 563 (Tex.Cr.App.1974); Selman v. State, 505 S.W.2d 255 (Tex.Cr.App.1974); Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973).

The judgment is reversed.

DOUGLAS, Judge,

dissenting.

The majority quotes the correct rule from Ransonette v. State, 550 S.W.2d 36 (Tex.Cr.App.1977) (Opinion on Motion For Rehearing), as follows:

“[a] charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. See e. g. Wilson v. State, 154 Tex.Cr.R. 59, 225 S.W.2d 173 (1949). A charge on circumstantial evidence is necessary only when the State’s case depends entirely upon circumstances for conviction. See e. g. Nailing v. State, 152 Tex.Cr.R. 161, 211 S.W.2d 757 (1948); Wells v. State, 134 Tex.Cr.R. 412, 115 S.W.2d 658 (1938). . . . See 31 Tex.Jur.2d 682-683, Instructions, Sec. 123. . . ."

Then the majority does not apply the rule. The direct evidence shows that appellant shot at Officer Evans. A siren on a police car was on as the officers arrived at the scene, and before appellant shot at Evans officers who were at the front of the house were calling out that they were police officers. It was definitely proved that he was an officer. Applying the rule “[a] charge on circumstantial evidence is required only when the State’s ease depends entirely on circumstantial evidence for conviction”, the State in this ease does not rely entirely upon circumstantial evidence. See Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977).

This Court has always held that when the intent is all that is not proved by direct evidence a charge on circumstantial evidence is not required. Belcher v. State, 504 S.W.2d 858 (Tex.Cr.App.1974); Barber v. State, 462 S.W.2d 33 (Tex.Cr.App.1971).

In De Los Santos v. State, 65 Tex.Cr. 518, 146 S.W. 919 (1912), the prosecution was for knowingly permitting gambling on premises under his control. All the evidence was positive except that on the question of knowledge by the accused. The court instructed the jury that the accused was not guilty if he rented a room and it was used for gaming purposes without his knowledge. This Court held error in the charge, if any, in failing to charge on circumstantial evidence was harmless.

Article 36.19, V.A.C.C.P., provides, in part, that where requirements of Articles 36.14, 36.15 and 36.16, V.A.C.C.P., relating to the court’s charge have been disregarded “. . . the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. . . .”

Under this statute, if there were any error, it would be harmless. The jurors knew that they had to believe beyond a reasonable doubt that appellant was informed or knew that Evans was a police officer before they could convict.

No error is shown. The judgment should be affirmed.

ODOM, J., joins in this dissent.

      . “A person who assaults a peace officer with intent to murder while said officer is in performance of his official duty, knowing that the person assaulted is a peace officer, is guilty of a felony . . . .” (Emphasis supplied.)


source: Caselaw Access Project

author: DALLY, Commissioner. ROBERTS, Judge,

license: Public Domain

text:
    Eugene Lorenza GIVENS, Appellant, v. The STATE of Texas, Appellee.
    No. 53468.
    Court of Criminal Appeals of Texas.
    June 29, 1977.
    Rehearing Denied Sept. 14, 1977.

      Rodney L. Poirot and Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell J. Templeton, David C. Schick and Winfield W. Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of voluntary manslaughter; the punishment is imprisonment for 16 years.

The review of the appellant’s grounds of error does not require a full statement of facts. The evidence shows that the appellant shot and killed a man on a Dallas city street.

In each of six grounds of error the appellant complains of the prosecutor’s argument. The first is that the prosecutor, at the guilt-innocence phase of the trial, argued:

“There’s a lot of senseless and tragic and unnecessary killing going on in our community, and our State, and I — ”

The defense counsel’s objection that the argument was outside of the record was sustained and the court instructed the jury not to consider this argument. Defense counsel had elicited testimony that the appellant lived in a neighborhood where there was much violence — a “jungle” — and that most of the people who lived in that neighborhood carried guns. If the argument was not a proper plea for law enforcement, see Roberts v. State, 494 S.W.2d 857 (Tex.Cr.App.1973); Knox v. State, 487 S.W.2d 322 (Tex.Cr.App.1972); Pogue v. State, 474 S.W.2d 492 (Tex.Cr.App.1973), the court’s instruction to the jury was sufficient to protect the appellant’s rights.

Two of the appellant’s complaints relate to argument made at the punishment phase of the trial. The prosecutor had asked the jury to assess punishment of imprisonment for twenty years. The two parts of the argument about which the appellant complains are:

“And that’s why I say your verdict is important. Not only when you talk about rehabilitating an individual and trying to keep him off the streets but to protect the rest of us until he is rehabilitated. But also to deter — ”

And also:

“If he cannot be rehabilitated it will keep him off the streets for as long as possible.”

The appellant urges the prosecutor implied that the appellant would be “turned loose” when he was rehabilitated, which he says was similar to an argument condemned as an incorrect statement of law in Hernandez v. State, 366 S.W.2d 576 (Tex.Cr.App.19633). The appellant also urges that the prosecutor’s argument was an improper allusion to the operation of the parole law. Compare Marshburn v. State, 522 S.W.2d 900 (Tex.Cr.App.1975). We do not agree with the appellant. The inference to be drawn from the prosecutor’s argument was that the appellant should be placed where he could be rehabilitated and if he were not rehabilitated, society should be protected by keeping the appellant off the streets as long as possible. The prosecutor was not arguing that the appellant would gain an early release if he were rehabilitated. We also disagree that this argument was an allusion to the parole law.

The appellant next complains that a part of the prosecutor’s argument was contrary to the court’s charge, it was a misstatement of the law applicable to this case, and it limited the jury’s consideration of the appellant’s right of self-defense. The portion of the argument made at the guilt-innocence phase of the trial of which complaint is made follows:

“Now, Mr. Poirot has talked to some extent about this apparent danger charge that is in here. He went over it with you about ninety percent of the page and two-thirds that constitute this charge. What this charge basically handles the situation where a man comes up to you— this is hypothetical. Sticks a gun into your chest and says, ‘give me all your money, I’m going to kill you’—
“[DEFENSE COUNSEL]: Your Hon- or, I’m going to object very strenuously. That is not the situation of that charge. That’s very misleading.
“[PROSECUTOR]: Judge, he hasn’t even let me finish my statement.
“THE COURT: It’s a hypothetical question. Overruled.
“[DEFENSE COUNSEL]: Note our exception.
“[PROSECUTOR]: And in some manner you manage to get the drop on the individual and you kill him and lo and behold that person’s gun wasn’t loaded. So it wasn’t a real danger. He couldn’t have killed you even if he wanted to. But it appeared to you to be a real danger because you didn’t know if it was loaded or not. It was apparent. You see the distinction?”

Although the robbery example used by the prosecutor may have been a poor choice, the prosecutor was attempting to explain to the jury the difference between real and apparent danger. We do not construe the argument made by the prosecutor to be a misstatement of the law contrary to the court’s charge or a limitation on the appellant’s right of self-defense. See Lincoln v. State, 508 S.W.2d 635 (Tex.Cr.App.1974).

The next complaint is about the following argument:

“Now, that’s what the law says. Number three, not only do you have to retreat, if it’s possible, but before you can use deadly force against someone else, not just physical force, but before you can use deadly force, you have to have real or apparent deadly force used against you, you see. If a person is just coming at you with his fists doubled up that’s hardly good enough to feel you are about to be killed, is it?”

The court had instructed the jury on the law justifying the use of deadly force in self-defense. It is apparent that the prosecutor was attempting to explain to the jury the charge on the use of deadly force. It was not a statement of law contrary to the court’s charge. See Lincoln v. State, supra; cf. Hill v. State, 518 S.W.2d 810-813 (Tex.Cr.App.1975).

The appellant’s remaining contention relates to the argument made at the guilt-innocence phase of the trial. The prosecutor argued:

“Now, justice in a criminal case can be accomplished in a number of ways when you stop to think about it. First of all, the police department may not just refuse to take a case. They don’t have to take it. They don’t have to file it. A District Attorney’s office does not have to accept a case. Justice can be done in that manner. A Dallas County Grand Jury can return a no bill indictment. That can do justice to a case. And myself and Mr. Scott as the Assistant District Attorneys can dismiss a case. That can do justice to it also.
“[DEFENSE COUNSEL]: Judge, I’m going to object to the implication of that argument. That’s implying other factors outside of this record and it’s highly prejudicial to this Defendant and it’s certainly prejudicial and I object to it.
“THE COURT: I’ll give you an exception on it.
“[DEFENSE COUNSEL]: Thank you, Your Honor.”

The appellant argued that although the prosecutor’s argument was couched in negative statements its real impact was:

“(1) The police believed Appellant was guilty because they accepted the case for filing;
“(2) The District Attorney’s office believed Appellant was guilty because they accepted the case for filing; “(3) The Grand Jury believed Appellant was guilty because they returned a true bill; and
“(4) Both prosecutors believed Appellant to be guilty because they did not file a motion to dismiss.”

There was no objection until after the prosecutor had pursued the same type argument for some time. When the court did not either sustain or overrule the objection but said: “I’ll give you an exception,” counsel did not get a clarification of the court’s ruling. There was no request that the court instruct the jury to disregard this argument. If this argument was improper an instruction would have protected the appellant’s rights.

It is well known that in our system of criminal justice a certain amount of discretion in the exercise of their duties is given to the various agencies concerned with law enforcement. The prosecutor’s argument was a statement recognizing these facts. See Jimenez v. State, 421 S.W.2d 910 (Tex.Cr.App.1968).

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge,

dissenting.

The district attorney’s argument that his decisions, police decisions, and the grand jury’s decisions are cumulative evidence of guilt was a misstatement of the law, improper and prejudicial, preserved and reversible error.

Defense counsel objected. When the trial court said, “I’ll give you an exception,” what it ruled, in effect, was: that’s all you’re getting. When a trial judge says, “you may have your exception,” he “permit[s] [the argument] to go to the jury unhampered by any caution not to consider it.” Thus, the trial court “. . .in effect place[s] his sanction upon such argument.” Traders and General Ins. Co. v. White, 320 S.W.2d 702, 705 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.).

In Fowler v. State, 500 S.W.2d 643 (Tex.Cr.App.1973), we reversed because of the following improper argument:

“I am certainly not going to prosecute a man that I don’t feel in my own heart is guilty.”

We stated that “[i]f the court had sustained the objection and instructed the jury not to consider this argument, the error might not have resulted in reversal. (Citations).” Id., at 644.

In Harris v. State, 475 S.W.2d 922 (Tex.Cr.App.1972), the following argument was objected to:

“Now, again, he said that the State wields a lot of power, and he went through the process of the grand jury indictment; at ¡east nine people in the past have felt that there was evidence warranting a conviction, because they returned a true bill.” (Emphasis included).

Since the objection was sustained and an instruction to disregard granted, this Court held that reversible error was not present. However, we stated that “[t]he italicized portion of the prosecutor’s argument was a misstatement of the law; it should not have been made, and under some circumstances might well have been reversible error.” Id., at 923.

In Hall v. State, 492 S.W.2d 512 (Tex.Cr.App.1973), the following argument was objected to:

“ * * * I am trying to detail for you what law enforcement is, why it’s, your part, so important. The police do their work of apprehending these robbers; the grand jurors hear the cases, and they indict the cases. As you have heard the indictment read in this case. The grand jurors of the State of Texas, saying this man did wrong and you saw the details in the indictment.”

We stated that the argument was improper. But since no instruction to disregard was sought or a ruling obtained on the initial objection, “[w]e [were] not willing to label it reversible error however.” Id., at 514.

In Jones v. State, 520 S.W.2d 755 (Tex.Cr.App. 1975, Opinion on Appellant’s Motion to Reinstate Appeal), the following argument was complained of:

“. . .1 tell you each and every one of you you are the citizens who pay me to do a job. I will tell you this, there is not one of you, not one of you on that Jury that can pay me enough money or can pay the police department enough money to try to convict an innocent man and that is what we are here about, and that is what he is insinuating. You don’t do that, my job is not that important to me. I can go over there and defend them and make more money — * * *
“So let me make this clear to each and every one of you, it is important, you don’t pay me enough money to come here and convict an innocent man.”

This language was held improper but not reversible because the majority of this Court found that the argument was invited by defense counsel. See, Elizondo v. State, 545 S.W.2d 453, 454-455 (Tex.Cr.App. 1976).

In the case at bar, the error was preserved. The appellant received an unfavorable ruling on his objection.

When the evidence shows that the defendant shot and killed another, prosecutors should not risk reversal of a conviction by arguing that due process of law is due process of guilt. The practice we condone may lead, in a closer case, to an innocent person being deprived of his liberty because he has been indicted.

The judgment should be reversed and the cause remanded.

PHILLIPS, J., joins in this dissent.


author: PEDEN, Justice.

text:
    HARRIS COUNTY, Appellant, v. Philip L. EMMITE, Appellee.
    No. 16879.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 26, 1977.
    Rehearing Denied July 21, 1977.

      Joe Resweber, County Atty., Theodore H. Wu, Jr., and Billy E. Lee, Asst. County Attys., Houston, for appellant.
    Hittner, Cezeaux & Salvato, Mark A. Sal-vato, Houston, for appellee.
   PEDEN, Justice.

Philip Emmite sued Harris County for unpaid consulting services on the theory of implied contract. The jury found that he rendered services valued at $750 and that Harris County knowingly accepted the benefits of them. Harris County directs this appeal to the legal sufficiency of the evidence to support the jury finding that the county “knowingly accepted benefits.”

Plaintiff and Harris County Commissioners Court entered into two successive written employment contracts providing that plaintiff would perform consultation services for the county’s Manpower project for a stipulated number of hours at a stipulated hourly rate. A third contract was prepared and the plaintiff, in anticipation of its execution, worked an additional 50 hours, but it was not executed by the Commissioners Court and plaintiff was not paid for that work.

In Harris County’s two points of error it asserts that there is no evidence (1) that it knowingly accepted the benefits of plaintiff’s services, and (2) that it received any benefit from those services. Under no evidence points we review only the evidence favorable to the jury findings.

The record contains several references to the county’s knowledge, through its representatives other than Commissioners Court, of plaintiff’s additional services. Mr. Jeff Campbell, then director of the Harris County Manpower program, testified that he had asked plaintiff to continue with his work pending the authorization of the third contract, since the program’s standard procedure was to pay for these over-runs by making the contracts retroactive. Col. Dittman, liaison between Mr. Campbell’s department and the county judge, was informed of the over-run and approved it.

Appellant’s second no evidence point questions the jury’s finding that the county received a benefit. Mr. Campbell answered the following question—

Q. Do you think that the over-run work was beneficial to the county?
A. Absolutely.

Mr. Campbell also testified that the plaintiff worked a number of hours in excess of the second contract, and Mr. Emmite testified that he worked 50 hours in excess of it. He also said he prepared a statement for the bookkeeper, who in turn forwarded a requisition to Col. Dittman, and he approved it.

Where a county or a municipality receives benefits under a contract, illegal because not made in conformity with the Constitution or statute of the state, or charter provision of the city, it will be held liable on an implied contract for the reasonable value of the benefits which it may have received. Sluder v. City of San Antonio, 2 S.W.2d 841, 842 (Tex.Com.App.1928); 22 Texas Practice (Singer) Municipal Law and Practice 428, § 807 (1976); 15 Tex.Jur.2d 329, Counties § 105.

“It is the settled law in this State, as established by the decisions of this Court, that where a municipality knowingly receives property or services on an agreement which it had power to enter into as a contract, but which was not legally entered into so as to make it binding as a contract, it will be compelled to pay the reasonable value of the property or services so received, as on an implied contract. In such instances it is not correct to say that the municipality is estopped to deny that the illegal agreement, as such, is a binding contract. The rule correctly stated is that in such instances the municipality is liable on an implied contract to pay the reasonable value of the property or services furnished to and accepted by it. In the instances under discussion the illegal agreement is not enforced as a contract. To the contrary, the illegal agreement as such is not enforced at all. The contract that is enforced is one that the law implies, because justice demands that a municipality shall not be permitted to receive and retain the benefits of an agreement without paying the reasonable value of such benefits.” City of Houston v. Finn, 139 Tex. 111, 161 S.W.2d 776 (1942).

In City of San Antonio v. French, 80 Tex. 575, 16 S.W. 440 (1891), the city was ordered to pay for the use its officers had continued to make of certain leased rooms after the written lease had expired. A new lease, as required by law, was not executed. The city was held liable on implied contract for the use actually made but not for a renewal of the entire term of the lease.

A question similar to that here involved was presented in City of Houston v. Howe & Wise, 323 S.W.2d 134 (Tex.Civ.App.1959, writ ref., n. r. e.). We concluded, at p. 150, that the city had notice by a letter from the plaintiffs to the superintendent of the water supply project known as Lake Houston that the plaintiffs were expecting compensation for some work they considered to be extra surveying. We held that the City’s director of public utilities directed the plaintiffs to do the work, did not stop them until it was nearly completed, and used the survey in paying a clearing contractor, thus accepting benefits as a result of the alleged extra work.

We hold that in the instant case there was some evidence that Harris County benefited from the plaintiff’s services and knowingly accepted those benefits.

Affirmed.


author: GUITTARD, Chief Justice. AKIN, Justice,

text:
    SAMMONS ENTERPRISES, INC., Appellant, v. Darrell F. MANLEY et al., Appellees.
    No. 19310.
    Court of Civil Appeals of Texas, Dallas.
    May 27, 1977.
    Rehearing Denied July 6, 1977.

      Mike Joplin, Strasburger & Price, Dallas, for appellant.
    Robert L. Blumenthal, Carrington, Coleman, Sloman, Johnson & Blumenthal, Joe B. Tolle, Asst. Dist. Atty., Dallas, for appel-lees.
   GUITTARD, Chief Justice.

The question on this appeal is whether a statutory change in the rate of interest on judgments applies to a judgment recovered before the effective date of the change so as to make the judgment bear interest at the new rate from the date of the change. We hold that the judgment continues to bear interest at the old rate.

When the present judgment was signed on April 28,1975, the statute governing the interest rate on judgments was Texas Laws 1967, chapter 274, section 2, at 610, which provided: “All judgments of the courts of this State shall bear interest at the rate of six percent per annum from and after the date of the judgment . . . ” This statute was amended by the legislature in 1975 by substituting “nine” for “six.” The amendment by its terms became effective September 1, 1975. Tex. Laws 1975, ch. 288, § 1, at 730.

After an unsuccessful appeal from the judgment by defendant, Sammons Enterprises, Inc., plaintiffs Darrell F. Manley and Conway Phillips obtained from the district clerk a writ of execution for the amount of the judgment “with interest thereon at the rate of 6 percent per annum from April 28, 1975, to September 1, 1975, and thereafter at 9% per annum until paid in full.” Sam-mons Enterprises then sought in the trial court a temporary injunction restraining Manley and Phillips and the sheriff of Dallas County from levying this writ or any writ providing for interest for any period in excess of six percent per annum. After a hearing, the trial court denied injunctive relief, and Sammons Enterprises perfected this interlocutory appeal, which was heard upon the complete record and with full briefs on both sides only seven days after the trial court’s order denying the temporary injunction. Before the appeal was perfected, we issued our own temporary injunction to preserve the status quo pending decision of this appeal.

Appellant contends that the statutory change in the rate of interest does not apply to judgments recovered before its effective date, citing Missouri P. Ry. v. Patton, 35 S.W. 477 (Tex. Civ. App. 1896, writ ref’d). Patton is exactly on the point, except that it concerned the 1892 amendment to the same statute, which reduced the rate rather than increasing it. After the plaintiff had obtained satisfaction of the principal amount of the judgment with interest at the higher rate until the effective date of the rate change and thereafter at the new lower rate, he moved for execution for the balance, and the trial court granted judgment for the difference, which the defendant appealed. This judgment was affirmed by the court of civil appeals on the ground that the rate of interest was fixed by the original judgment. The court wrote:

The rights and liabilities of the parties were then fixed by that judgment under the law as then existing, and when the judgment was so rendered it became a certain and fixed demand, that would not fluctuate in keeping with changes that might thereafter be made in the law that related to claims of that class, unless it clearly appeared that such laws were intended to have such retroactive effect. When demands are finally merged into judgments, subsequent changes by law of the rates of interest will not affect such judgments, unless the statutes so declare.

Id. 35 S.W. at 478.

This reasoning would have been equally applicable if the rate had been increased rather than reduced. The policy of the state was declared to be that the rate of interest after judgment, like other matters involved in the suit, should be finally settled by the judgment and should not be subject to change with subsequent changes in the law.

Although at the time Patton was decided “Refusal” of a writ of error did not necessarily indicate approval of the opinion by the supreme court, only one point was raised by the appeal, and, consequently, we may presume that the supreme court approved the judgment for interest at the old rate and thus, on whatever rationale, construed the statute as the court of civil appeals construed it. Conley v. Abrams, 7 S.W.2d 674, 677 (Tex. Civ. App., Galveston 1928, writ ref’d); and see Benavides v. Garcia, 290 S.W. 739, 740 (Tex. Com. App. 1927, jdgmt adopted). See also Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669, 674 (1959). Even the notation “Refused, No Reversible Error” under present rule 483 of the Texas Rules of Civil Procedure may indicate approval of the judgment, as distinguished from the opinion, when the particular holding attacked on application for writ of error is necessary to the judgment of the court of civil appeals. Simpson and Wall, Problems of Precedent Affecting Court of Civil Appeals Opinions, 4 Sw.L.J. 398, 403 (1950). Under the practice when Patton was decided, “Refused” was at least this strong.

We conclude, moreover, that the amendment of the same statute in 1975 was a legislative adoption of the construction given that statute in Patton. At the time of the 1975 amendment, the statute was in all respects now material exactly the same as the statute before the court in Patton. See Tex. Laws 1892, ch. 6, at 5; 10 H. Gammel, Laws of Texas, 369 (1898). The rule is well settled that when a statute is re-enacted without material change, it is presumed that the legislature knew and adopted the interpretation placed on the original act and intended the new enactment to receive the same construction. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 524 (1930); In re Estates of Carrigan, 517 S.W.2d 817, 819 (Tex. Civ. App., Tyler 1974, no writ); and see Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 187 (Tex. 1968).

Appellees do not contend that the amendment should be construed literally with respect to pre-existing judgments so that the new rate should apply retroactively “from and after the date of the judgment,” as the statute provides. They contend, rather, that the amendment should be construed as if it provided that the new rate should apply from the effective date of the amendment only. No language in the statute indicates a legislative intent that the amendment should be so applied. If the legislature in 1975 had intended to make the change in rate applicable to pre-existing judgments after the effective date of the amendment, it could easily have so provided. Its failure to do so is evidence that it did not so intend, particularly in the light of the construction of the 1892 amendment in Patton.

Appellees Manley and Phillips contend that Patton was incorrectly decided because the rate of interest on a judgment is not a matter of contract, but rather a matter of damages for wrongful withholding of money adjudged to be due, and that the rate of damages is controlled by the statute rather than by the judgment. Although this argument might be plausible in the absence of authority, we conclude that the Patton construction of the statute, which has presumably been approved by the supreme court and adopted by the 1975 amendment, has established the Texas rule to be that the rights of the parties as embodied in a judgment, including the rate of interest after judgment, are not changed by a subsequent change in the law.

Appellees argue that Patton is inconsistent with the subsequent opinion of the supreme court in Watkins v. Junker, 90 Tex. 584, 40 S.W. 11, 12 (1897). In that case the supreme court held that prejudgment interest allowed as damages on the principal amount recovered should accrue at the old rate until the effective date of the statute changing the rate and then at the new rate. That decision, in our opinion, is distinguishable because the change in the law was made before judgment, and, consequently, the case was not within the principle on which Patton rests, that the rate of interest, like other rights of the parties, is finally settled by the judgment.

Moreover, Watkins does not detract from the authority of Patton because it is not based on the same statute that was before the court in Patton. The Watkins opinion does not cite the particular statute referred to, but it cites two earlier cases holding that prejudgment interest allowed as damages is determined by analogy to the statute fixing the “legal” rate of interest on sums payable on contracts when no rate of interest is agreed on. These cases are Heidenheimer v. Ellis, 67 Tex. 426, 3 S.W. 666, 667 (1887), and Close v. Fields, 13 Tex. 623, 625 (1855). This statute, as well as the statute construed in Patton, was amended by the act of 1892 to change the rate from eight to six percent. Tex. Laws 1892, ch. 6, at 4; 10 H. Gammel, Laws of Texas, 368 (1898).

Appellees rely also on Southwestern Bell Tel. Co. v. Hertz Equipment Rental Co., 533 S.W.2d 853 (Tex. Civ. App., Fort Worth 1976, writ ref’d n.r.e.), and Donahue v. Rattikin Title Co., 534 S.W.2d 156 (Tex. Civ. App., Fort Worth 1976, no writ). In each of those cases the trial court had denied recovery before September 1, 1975, and the appellate court, in reversing and rendering judgment for plaintiff after that date, provided for interest at six percent before September 1,1975, and nine percent thereafter. Appellees argue that since the appellate court was bound to render the judgment which the trial court should have rendered under rule 434, Texas Rules of Civil Procedure, the court had to determine the same question as that now before us. We do not regard those cases as authoritative because, apart from the question of whether the change in the statutory rate would apply to a subsequent judgment rendered on appeal, neither of those opinions indicates that the rate of interest was a contested matter in the appellate court, and neither shows that the Patton decision was called to the court’s attention.

The order denying the temporary injunction is reversed, and we issue our temporary injunction restraining the sheriff and the other appellees from levying execution for an amount in excess of six percent per annum until final judgment on the merits.

AKIN, Justice,

dissenting.

I cannot agree with the majority’s holding that the judgment continues to bear interest at the rate prescribed by the statute in effect on the date of judgment. The majority rests its holding on the case of Missouri Pac. Ry. v. Patton, 35 S.W. 477 (Tex. Civ. App., 1896, writ ref’d). As noted in the majority opinion, the refusal of the writ indicates approval of the result, but not necessarily the rationale. In Watkins v. Junker, 90 Tex. 584, 40 S.W. 11, 12 (1897), the supreme court addressed a similar question concerning prejudgment interest. In Junker, the court stated that interest is essentially compensation for the withholding of money which is due and since the rate of interest is a creature of statute, held that the plaintiff was entitled to the statutory interest from the time the money was due until paid. In so holding, the court applied the existing rate of eight percent up to the date when the statute changing it to six percent became effective and thereafter applied the new rate. The change in the statutory interest rate by the legislature is apparently an attempt to insure that the compensation for detention of money due approximates the cost of money in the market place. A corollary to the rationale stated in Junker is that the legislature intended to prevent those who owe debts from profiting by the use of dilatory tactics to avoid payment. When the applicable interest rate does not reflect the actual damages suffered due to delay in payment, the dilatory debtor can, in effect, unjustly appropriate part of the principal’s earning power. Since the purpose of the statute is to compensate for the withholding of money, damages accrue with each day that it is withheld. Because damages continually accrue, it is only logical that the amount of damages be calculated based on the interest rate which the legislature deems to be just compensation at that time; the interest rate which provided just compensation at some arbitrarily fixed date in the past is not relevant. This was the position taken by the supreme court in Junker. Given this rationale for the allowance of interest and the legislative decision to adjust the interest rate, the decision in Patton does not further the aims of the legislature. The holding in Patton conflicts with the rationale of Junker, even though it may be factually distinguishable on the basis that it pertained to postjudgment interest rather than prejudgment interest. Since the rationale stated by the supreme court in Junker dictates a contrary result, I cannot accept Patton as controlling.

Regardless of the rationale used to support the Patton decision, whether that stated by the court of civil appeals or another theory upon which the supreme court could reach the same result, one of two positions regarding the interest rate and date of judgment must be taken: (1) the interest rate is irrevocably fixed on the date that the judgment is signed, whether recited in the judgment or not, or (2) the interest rate is irrevocably fixed by the recital in the judgment. The first position would seem to conflict directly with the holding in Junker that prejudgment interest is not fixed on the day that the right of recovery comes into existence; it is the interest rate in effect at the time that the interest accrues, not that in effect at the time the right was created, that controls. Therefore, the Patton decision is viable, if at all, due to the recital in the judgment. If this is true, the effect would be that a recital in a judgment of an erroneous, or even illegal, interest rate would be binding unless set aside. However, the rate of interest is based upon the statute, not the recital in the judgment. In Junker, the supreme court held that the question of whether prejudgment interest was recoverable was a question of law to be decided by the court; if the case was one in which interest was recoverable, then the award of interest was mandatory. The trial court was not called upon to pass on the rate of prejudgment interest, but merely whether it was recoverable as a matter of law. The computation of the proper interest is then a mathematical exercise involving application of the statutory rate to the amount of the judgment on a per diem basis.

Similarly, the courts of civil appeals have consistently held that a judgment bears interest at the statutory rate even though the judgment is silent as to interest. Hoffman v. Love, 523 S.W.2d 503, 504-05 (Tex. Civ. App., Texarkana 1975, no writ); Broadway Drug Store, Inc. v. Trowbridge, 435 S.W.2d 268, 270 (Tex.Civ.App., Houston [14th Dist.] 1968, no writ); Lewis v. Hill, 429 S.W.2d 572, 575 (Tex. Civ. App., Tyler 1968, no writ); Carter v. McHaney, 373 S.W.2d 82, 86 (Tex. Civ. App., Corpus Christi 1963, no writ); Ross v. McGuffin, 2 Willson 403, 404 (Tex. Ct. App. 1884). In International-Great Northern R.R. v. Lucas, 123 S.W.2d 760, 765 (Tex. Civ. App., Eastland 1938, writ ref’d), cert. den., 308 U.S. 573, 60 S.Ct. 89, 84 L.Ed. 481 (1939), the court stated:

The provision for interest on the judgment added nothing, we think, to the provisions of law. R.S. 1925, Art. 5072; Texas & St. L. Ry. Co. v. Melear, 2 Willson Civ.Cas.Ct.App. § 457. If, therefore, the interest be not collectible as against the provisions of the law, neither would it be so far as we can see, as against the provision of the judgment, and therefore such provision in any event would be harmless.

As I understand this holding, the recital of an erroneous post-judgment interest rate in a judgment would not be controlling; the judgment would bear interest at the statutory rate regardless of the rate specified in the judgment. As noted above, the decision in Patton requires, as its basis, a holding that the interest rate is irrevocably fixed as of the date judgment is rendered or that it is irrevocably fixed by the recital in the judgment. Since neither of these positions is consistent with subsequent decisions, I do not view Patton as controlling.

The view that a change in the statutory interest rate becomes effective prospectively from and after the date of the amendment, regardless of the amount of statutory interest stated in the judgment, appears to be the more enlightened view. It is grounded on the principle that judgments bear no interest unless interest is provided for by the legislature. A question similar to ours was decided by the United States Supreme Court in 1892. In applying New York law in Morley v. Lake Shore & Mich. S. Ry., 146 U.S. 162, 13 S.Ct. 54, 36 L.Ed. 925 (1892), the Supreme Court held that post-judgment interest was statutory and therefore subject to prospective changes in rates by the legislature, stating:

After the cause of action, whether a tort or a broken contract, not itself prescribing interest till payment, shall have been merged into a judgment, whether interest shall accrue upon the judgment is a matter not of contract between the parties, but of legislative discretion, which is free, so far as the Constitution of the United States is concerned, to provide for interest as a penalty or liquidated damages for the non-payment of the judgment, or not to do so. When such provision is made by statute, the owner of the judgment is of course entitled to the interest so prescribed until payment is received, or until the State shall, in the exercise of its discretion, declare that such interest shall be changed or cease to accrue. Should the statutory damages for non-payment of a judgment be determined by a State, either in whole or in part, the owner of a judgment will be entitled to receive and have a vested right in the damages which shall have accrued up to the date of the legislative change; but after that time his rights as to interest as damages are, as when he first obtained his judgment, just what the Legislature chooses to declare. He has no contract whatever on the subject with the defendant in the judgment, and his right is to receive and the defendant’s obligation is to pay, as damages, just what the State chooses to prescribe.

In Missouri & Ark. Lumber & Mining Co. v. Greenward District, 249 U.S. 170, 39 S.Ct. 202, 63 L.Ed. 538 (1918), a judgment debtor attempted to distinguish Morley on the ground that the judgment in Morley did not specify a definite rate, whereas the judgment in Arkansas Lumber did so specify. In disposing of this contention the Supreme Court stated that the “mere recital of a particular rate does not change the nature of the charge as a penalty or liquidated damages.” Id. The Fort Worth Court of Civil Appeals adopted, without discussion, this result in two recent cases: Southwestern Bell Tel. Co. v. Hertz Equipment Rental Co., 533 S.W.2d 853 (Tex. Civ. App., Fort Worth 1976, writ ref’d n.r.e.), and Donahue v. Rattikin Title Co., 534 S.W.2d 156 (Tex. Civ. App., Fort Worth 1976, no writ).

In a well-reasoned opinion, the Illinois Supreme Court concluded that the rate of interest which a judgment bears should be governed by the statutory rate at the time the interest accrues, not the rate in effect when the judgment is rendered. Noe v. City of Chicago, 56 Ill.2d 346, 307 N.E.2d 376 (1974). See generally Annot., 4 A.L.R.2d 932, § 10 (1949 and Supp. 1971). The Illinois court rejected the argument that this amounts to a retroactive application of the statutory amendment, saying that it would only be beyond the legislature’s power to interfere with interest which had already accrued and vested. Noe at 379, 307 N.E.2d 376. In its decision the court cited a prior Illinois case holding that prejudgment interest would not be controlled by the rate in existence at the time the right to recovery matured, but would be governed by the statutory rate at the time the interest accrued; this is the position taken by our supreme court in Junker. The Illinois court concluded that the rationale of its earlier prejudgment interest case applied “with equal force and validity to the question of interest on a judgment.” Id. I agree and, consequently, dissent on the basis that we should follow the rationale of Junker.

      . Tex. Rev. Civ. Stat. Ann. art. 5069—1.05 (Vernon Supp. 1976).

      . We note that the Lucas court erroneously cites Texas & St. L. Ry. v. Melear, 2 Willson 402 (Tex. Ct. App. 1884) for this proposition. The sole holding in Melear was that a cause of action not asserted in the justice court cannot be asserted in the county court on appeal. However, the following case, Ross v. McGuffin, 2 Willson 403, 404 (Tex. Ct. App. 1884), stands for the proposition that a judgment bears interest at the legal rate even though there is no recital of interest in the judgment. This error can be traced, we believe, to 22A TEXAS DIGEST Interest § 22(1) (1963), which cites Melear for the proposition stated in Ross.


author: AKIN, Justice.

text:
    MEDICAL PERSONNEL POOL OF DALLAS, INC., Appellant, v. Mrs. Jack SEALE, Appellee.
    No. 19121.
    Court of Civil Appeals of Texas, Dallas.
    May 31, 1977.
    Rehearing Denied July 15, 1977.

      Jerry Nugent, Austin, for appellant.
    M. R. Irion, Irion, Cain, Magee & Davis, Dallas, for appellee.
   ON REHEARING OUR FORMER OPINION IS WITHDRAWN AND THE FOLLOWING SUBSTITUTED

AKIN, Justice.

This is an appeal from a judgment non obstante veredicto rendered against plaintiff, Medical Personnel Pool, and in favor of Mrs. Jack Seale, one of two defendants. Mrs. Jack Seale’s mother-in-law, Mrs. W. 0. Seale, the other defendant, was injured in an automobile accident, and Mrs. Jack Seale requested plaintiff to furnish nursing services to her mother-in-law. When the bill for these services was not paid, plaintiff sued both women. Following a jury trial, the trial court rendered judgment against Mrs. W. 0. Seale, but granted judgment n. o. v. in favor of Mrs. Jack Seale. Plaintiff perfected this appeal, which it limited to the action of the trial court in denying judgment against Mrs. Jack Seale. In this respect, plaintiff contends that the jury findings entitled it to a judgment against Mrs. Jack Seale. Because we hold that there was sufficient evidence to support the jury finding on the disregarded issue, we reverse the judgment n. o. v. We also hold that plaintiff is not entitled to judgment against both defendants, but must elect which defendant against whom it wants judgment. In accordance with its election in this court, we reverse and render judgment against Mrs. Jack Seale and reverse and render judgment that plaintiff take nothing against Mrs. W. 0. Seale.

Three special issues were submitted and answered as follows:

ISSUE NO. 1
Do you find from a preponderance of the evidence that Medical Personnel Pool of Dallas, Inc., performed nursing services for Mrs. W. 0. Seale?
ANSWER We do
If you have answered the last preceding issue “We do,” then answer the following issue; otherwise do not answer the next following issue.
ISSUE NO. 2
Find from a preponderance of the evidence the reasonable value of the nursing services performed by Medical Personnel Pool of Dallas, Inc., for Mrs. W. 0. Seale in Dallas County, Texas.
ANSWER $4,165.55
ISSUE NO. 3
Do you find from a preponderance of the evidence that Mrs. Jack Seale disclosed to Medical Personnel Pool of Dallas, Inc., that she was ordering the nursing services in question for the account of Mrs. W. 0. Seale?
ANSWER We do not

No additional fact findings were requested by the parties or made by the trial court.

We consider first Medical Personnel Pool’s contention that the trial court erred in rendering judgment n. o. v. because there is evidence to support the jury’s answer to issue number three. We agree. As we interpret special issue number three, it requires the jury to pass on whether Mrs. Jack Seale disclosed that she was acting as Mrs. W. 0. Seale’s agent. In passing on this question, the jury had to assume that agency existed; it was not called upon to pass on the question of agency. See Cactus Drilling Co. v. Williams, 525 S.W.2d 902, 906 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.).

Since special issue number three was limited to an inquiry as to the disclosure of agency, the trial court’s action in disregarding the answer to special issue number three and rendering judgment n. o. v. in favor of Mrs. Jack Seale was proper only if there was no evidence to support the jury’s finding that Mrs. Jack Seale did not disclose that she was acting as Mrs. W. 0. Seale’s agent in ordering the services. In making this determination, we may consider only that evidence which tends to show lack of disclosure. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974). An employee of Medical Personnel Pool testified that Mrs. Jack Seale ordered the services to be rendered to Mrs. W. 0. Seale. This is not, however, equivalent to a disclosure that she was ordering the services as agent for Mrs. W. 0. Seale and not individually. The question is whether the existence of an agency was disclosed. Mrs. Jack Seale’s testimony as to what she told Medical Personnel Pool when she ordered the services is contradictory. At one point she testified that she ordered the nursing services to be rendered to Mrs. W. 0. Seale; no mention was made of her capacity. In another part she testified that she disclosed that she ordered the services as agent for Mrs. W. 0. Seale. Finally, she admitted that her testimony was contradictory. Thus, the jury was entitled to conclude that she did not inform Medical Personnel Pool that she was acting as Mrs. W. 0. Seale’s agent in ordering the services. The trial court erred, therefore, in disregarding the jury’s answer to special issue number three.

The question of whether Mrs. Jack Seale was acting as the agent of Mrs. W. 0. Seale in ordering the services was not disputed. Indeed, Mrs. Jack Seale admitted in her answer that if she had any contacts with plaintiff, it was only in her capacity as an agent and later, at trial, testified that she ordered the services, but denied that she ordered them on her own account. Consequently, Medical Personnel Pool was entitled to a judgment against Mrs. Jack Seale on the jury finding that she failed to disclose this agency. However, the trial court entered judgment against Mrs. W. 0. Seale for the services, and no one appealed from that judgment.

Mrs. Jack Seale contends that the trial court erred in not requiring Medical Personnel Pool to elect which of the two defendants against whom it sought judgment. We agree. If an agent acting within the scope of his authority enters into a contract for his principal, the principal rather than the agent is liable. On the other hand, if an individual purports to act as agent, but has no authority, he is liable individually, and the principal is not liable. Talmadge Tinsley Co., Inc. v. Kerr, 541 S.W.2d 207, 209 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.). Similarly, if the agent acts within the scope of his authority, but fails to disclose the fact of his agency to a third party, then both the agent and the principal are liable to the third party, but both cannot be held jointly liable. Moody-Seagraves Ranch v. Brown, 69 S.W.2d 840, 844 (Tex.Civ.App.—San Antonio 1934, writ ref’d). Accordingly, appellant was required to elect the defendant against whom it chose to have judgment. Restatement (Second) Agency, § 210A, Comment a (1958).

Our problem is complicated by the failure of Mrs. W. O. Seale to appeal. However, the only possible theory upon which the trial court could have rendered judgment against her was on the basis that Mrs. Jack Seale was her agent. Since the rights of Mrs. W. O. Seale and Mrs. Jack Seale are so interwoven and dependent upon each other, we likewise reverse the judgment against Mrs. W. O. Seale even though she did not appeal. The rule is that where the rights of two defendants are dependent one upon the other and the appellate court finds error in the judgment as to one defendant, the judgment should be treated as an entirety, rather than divisible, and the proper judgment rendered when that course is necessary to meet the demands of justice. Lockhart v. A. W. Snyder & Co., 139 Tex. 411, 163 S.W.2d 385 (1942); Hamilton v. Prescott, 73 Tex. 565, 11 S.W. 548, 549 (1889); United States Fidelity & Guaranty Co. v. Richey, 18 S.W.2d 231 (Tex.Civ.App.—Texarkana 1929, writ ref’d); Glover v. Tide Equipment Co., 506 S.W.2d 330, 333 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); see Sherrill v. Bruce Advertising Inc., 538 S.W.2d 865, 867 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ).

We need not remand this case for an election by appellant because it has stated in this court that if an election between the defendants is necessary, it would elect to have judgment against Mrs. Jack Seale. Accordingly, we reverse and render judgment against Mrs. Jack Seale for the sum of $5,529.99, with interest at nine percent from August 10, 1976, until paid, and reverse and render judgment that plaintiff take nothing against Mrs. W. O. Seale.

ON MOTION FOR REHEARING

Mrs. Jack Seale, in her motion for rehearing, complains that we erred in rendering judgment against her because there was no pleading to support the jury’s answer to special issue number three finding that Mrs. Jack Seale failed to disclose to Medical Personnel that she was ordering the services for her mother-in-law. In this respect, Medical Personnel pleaded that “the services were ordered and requested to be performed for Mrs. W. O. Seale by defendant Mrs. Jack Seale.” Plaintiff did not, however, plead that Mrs. Jack Seale did not inform Medical Personnel that she was acting as Mrs. W. O. Seale’s agent when she ordered the services. In response Mrs. Jack Seale pleaded that “if she had any contacts with plaintiff concerning the services sued for, such contacts were solely as a representative of . Mrs. W. O. Seale . . . , all of which was well known to plaintiff.” At trial, Mrs. Jack Seale admitted ordering the services, but, as noted in our previous opinion, her testimony with respect to what she told Medical Personnel was contradictory. Nevertheless, she failed to object to testimony that she failed to inform plaintiff of her capacity as agent in ordering the services on the ground that such evidence was unsupported by pleadings. Similarly, she failed to object to special issue number three on this ground. We conclude, therefore, that she waived this ground of complaint and that the nondisclosure issue was tried by implied consent. Tex.R.Civ.P. 90; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562, 563 (1943); Ames v. Putz, 495 S.W.2d 581, 582 (Tex.Civ.App.—Eastland 1973, writ ref’d).

Mrs. Jack Seale also asserts that we erred in rendering judgment against her based upon the jury’s answer to - special issue number three because the uncontradicted testimony of plaintiff’s president was that Mrs. Jack Seale never agreed to pay for the services rendered and because the evidence fails to show that plaintiff did not know that the services were being ordered as agent for Mrs. W. 0. Seale. It is immaterial here whether Mrs. Seale expressly agreed to pay for the services when she ordered them because the law in such a situation implies an agreement to pay by the person making the order unless he discloses that he was acting as agent for another person. The question presented here is not plaintiff’s right to be paid for the services rendered, but rather which of the defendants should be required to make the payment. More importantly, however, this contention ignores Mrs. Jack Seale’s testimony that she did not inform plaintiff that she was ordering the services as Mrs. W. 0. Seale’s agent. Since this evidence shows that when the order was made plaintiff had no contact with anyone other than Mrs. Jack Seale, it appears that plaintiff had no knowledge of the agency from any other source. As we noted in our previous opinion, she admitted during trial that her testimony was contradictory on this point. Thus, the jury was entitled to believe that part of her testimony where she stated that she did not inform Medical Personnel of her capacity at the crucial time when she ordered the services. Furthermore, the only time when knowledge by plaintiff that Mrs. Jack Seale ordered the services as an agent is crucial was when they were ordered. Likewise, the fact that Mrs. W. 0. Seale was billed by plaintiff for the services is but some evidence from which the jury could have drawn an inference that Mrs. Jack Seale disclosed her agency to plaintiff when she ordered the services; it is not, however, binding on the jury as a matter of law, but only one of the evidentiary matters for the jury to resolve. This issue was resolved against Mrs. Jack Seale.

Mrs. Jack Seale next argues that we erred in permitting plaintiff to elect in this court the defendant against whom it desired judgment. She contends that the plaintiff made its election in the trial court by accepting judgment against Mrs. W. 0. Seale. We cannot agree. Although plaintiff sought judgment jointly and severally against both defendants, which we determined in our former opinion it was not entitled to have, the trial court refused to require plaintiff to make an election. Instead, the trial court in effect made the election by granting Mrs. Jack Seale’s motion for judgment n. o. v. and granting plaintiff judgment only against Mrs. W. 0. Seale. An election by a party contemplates a freedom by that party to choose which defendant against whom it desires judgment. We hold, therefore, that plaintiff made no election in the trial court by accepting judgment against Mrs. W. 0. Seale when it was denied judgment against Mrs. Jack Seale.

She also asserts that she had no advance notice of plaintiff’s election in this court and, therefore, no time to prepare a defense thereto. This argument is without merit. In the trial court Mrs. Jack Seale and Mrs. W. 0. Seale filed identical motions asking the court to require plaintiff to make an election. Likewise, both defendants filed motions for judgments n. o. v. Thus, Mrs. Jack Seale was aware that judgment could be rendered against her by the trial court if the trial court had required an election. In her brief by counterpoint, she asserted that the trial court should have required plaintiff to make an election. We fail to see, therefore, how Mrs. Jack Seale could be surprised when we permitted plaintiff to make the election which the trial court should have required if it had ruled correctly on her motion to require an election. We are simply rendering the judgment that the trial court should have rendered, as required by Tex.R.Civ.P. 434. No useful purpose would be served by remanding to the trial court for the purpose of allowing plaintiff to make its election.

Neither can we agree with Mrs. Jack Seale’s assertion that our rendition of judgment against her is error since “the judgment against Mrs. W. 0. Seale is long since final.” She argues that since Mrs. W. 0. Seale cannot now appeal from the judgment against her and plaintiff limited its appeal to that part of the judgment which denied recovery against Mrs. Jack Seale, we have no power to reverse the judgment against Mrs. W. 0. Seale and permit plaintiff to elect judgment against Mrs. Jack Seale. This argument is without merit because the recovery against Mrs. W. 0. Seale is in the same cause and in the same judgment as the judgment n. o. v. from which plaintiff appealed; no order of severance was entered. Although plaintiff has limited its appeal to the action of the trial court in granting judgment n. o. v., we nevertheless can reverse the judgment against Mrs. W. 0. Seale when it and the judgment n. o. v. are intimately intertwined and interrelated and when justice requires it under the authorities cited in our original opinion. Essentially, Mrs. Jack Seale’s position is that because all of the cases cited in our main opinion for this proposition concerned situations where the reversal of the judgment appealed from required a new trial as to all parties including those who did not appeal, this case, likewise, should be remanded for a new trial. We cannot agree that a new trial is necessarily required by the rule enunciated in the cited cases where no reversible error occurred at trial and where the ends of justice and judicial economy are served by rendering, as in other cases, the judgment that the trial court should have rendered on the verdict after denial of Mrs. Jack Seale’s motion for judgment n. o. v. and after permitting plaintiff’s election.

Finally, Mrs. Jack Seale urges us to remand this cause for a new trial in the interests of justice. We see no reason for a new trial because the only error committed by the trial court was after the jury’s verdict had been received when the court rendered judgment n. o. v. in favor of Mrs. Jack Seale. It would be manifestly unjust to require plaintiff to convince a second jury of its claim when no reversible error was committed during the course of the trial before the jury.

Motion overruled.


text:
    ELIZABETH-PERKINS, INC., d/b/a Bettes, Appellant, v. MORGAN EXPRESS, INC., Appellee.
    No. 19157.
    Court of Civil Appeals of Texas, Dallas.
    June 1, 1977.
    Rehearing Denied July 6, 1977.

      Esir Tobolowsky, Dallas, for appellant.
    Leonard E. Hoffman, III, Lyne, Klein, French & Womble, Dallas, for appellee.
   AKIN, Justice.

This is an appeal from a take-nothing judgment rendered in favor of Morgan Express, Inc., defendant, and against Elizabeth-Perkins, Inc., plaintiff, after a jury verdict. Plaintiff sued to recover the value of three dresses which were lost after being delivered to defendant for shipment. The jury found that the consignor knew of the limitation of liability, that the value of the dresses was $300, and that “none” was a reasonable attorney’s fee. We hold that defendant’s liability to the extent of $50 was established as a matter of law, and accordingly render judgment for that amount. We also hold that the jury’s finding of “none” as a reasonable attorney’s fee was against the great weight and preponderance of the evidence and, consequently, reverse and remand for a determination of attorney’s fees.

Plaintiff, doing business as Bettes, a retail women’s clothing store located in Dallas, shipped three dresses to Mrs. Ben Davis in Abilene. Mrs. Davis was a customer of Bettes who had previously purchased dresses which were shipped to her on approval. However, Mrs. Davis decided not to purchase these dresses and delivered a package containing the dresses to the Morgan Express office in Abilene for shipment back to Dallas. When plaintiff shipped the dresses to Abilene, it declared their value to be $600, and this value was noted on the waybill. Mrs. Davis did not, however, declare a value on the return shipment. This waybill, a copy of which was furnished to Mrs. Davis, contained a provision that the shipper’s liability was limited to $50 unless a greater value was declared. Elizabeth-Perkins originally sued Morgan Express and Mrs. Davis, but dismissed the action against Mrs. Davis before trial. In spite of the jury’s verdict, the trial court entered a take-nothing judgment against Elizabeth-Perkins, and it appeals.

Plaintiff’s Right to Recover

Elizabeth-Perkins contends that it is entitled to judgment on the verdict and, alternatively, that since Morgan Express lost the shipment, the shipper is liable as a matter of law for at least the sum of $50 which is the limited sum set forth in its tariff and that the trial court erred in refusing it judgment in that sum. We agree with plaintiff’s alternative argument. Morgan Express admits that it received the shipment and lost it. Consequently, it is liable for the loss as a matter of law. It seeks to uphold the take-nothing judgment on the ground that the contract of carriage was made with Mrs. Davis rather than with Elizabeth-Perkins. We cannot agree. The consignee, especially one who is the true owner of the lost goods, is entitled to recover from the carrier. See Missouri Pac. Ry. Co. v. Smith, 84 Tex. 348, 19 S.W. 509, 510 (1892); Curry Motor Freight Lines, Inc. v. Shell Oil Co., 497 S.W.2d 805, 806 (Tex.Civ.App.—Amarillo 1973, writ ref’d n.r.e.).

Limitation of Defendant’s Liability

We do agree, however, with the alternative contention of Morgan Express that its liability is limited to $50. Morgan Express is a common carrier subject to regulation of intrastate shipments by the Texas Railroad Commission. Its fees are set out in a tariff filed with the Railroad Commission under which it charges rates according to the distance shipped and the value of the shipment. The tariff provides that the shipment’s declared value, to which liability is limited, is $50 unless a greater value is declared in writing pursuant to Tex.Rev.Civ.Stat.Ann., art. 883 (Vernon Supp.1976); declaration of a greater value requires an additional charge of twenty-five cents per one hundred dollar valuation.

In support of its primary contention that it is entitled to judgment on the verdict, Elizabeth-Perkins asserts that Tex.Bus. & Comm.Code Ann. § 7.309 (Vernon 1968) prevents Morgan Express from limiting its liability on this shipment to $50 because Mrs. Davis was not afforded an opportunity to declare a higher value, which would increase both the fee for shipment and the carrier’s liability. Essentially, Elizabeth-Perkins interprets section 7.309 to require that, in order to rely on the limitation of liability, the carrier must prove that it expressly called the liability limitation provision to the shipper’s attention. We cannot agree with this interpretation. Section 7.309(b) provides:

Damages may be limited by a provision that the carrier’s liability shall not exceed a value stated in the document if the carrier’s rates are dependent upon value and the consignor by the carrier’s tariff is afforded an opportunity to declare a higher value or a value as lawfully provided in the tariff, or where no tariff is filed he is otherwise advised of such opportunity; . . . . [Emphasis added.]

Under this section, where a tariff has been filed, it is the tariff which must afford the shipper an opportunity to declare a higher value; only where no tariff is filed does the carrier have a duty to inform shippers of this opportunity by some other means. Since a tariff was filed and since the consignor, Mrs. Davis, did not declare a higher value in writing in the space provided on the waybill, we conclude that Morgan Express’s liability was limited to $50 as a matter of law. Accordingly, we reverse and render judgment in the amount of $50 for Elizabeth-Perkins.

Attorney’s Fees

Elizabeth-Perkins contends that the jury finding of “none” with respect to a reasonable attorney’s fee is against the great weight and preponderance of the evidence. We agree. Elizabeth-Perkins’s attorney testified concerning attorney’s fees. He stated that he had been practicing in Dallas since 1932 and was familiar with reasonable attorneys’ fees in the Dallas area. The judgment from which this appeal was taken was the second judgment rendered in this case. The first was a default judgment against Morgan Express, which was reversed by this court due to the lack of a statement of facts at the default-judgment hearing. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.—Dallas 1975, writ ref’d). Elizabeth-Perkins’s attorney testified that a reasonable fee for his services in obtaining a default judgment and defending it at a hearing on Morgan Express’s motion for a new trial was $250 and that a reasonable fee for the appeal to this court, the motion for rehearing, and filing writ of error in the supreme court was $1,500. He then testified that he had expended thirty-five hours since the case was remanded and listed the matters on which the time was spent, including the preparation of an amended petition, requests for admissions, interrogatories, hearings, and one day in the trial of the cause. He did not, however, specifically break down the amount of time spent on each facet of the case. He stated that $50 an hour was a reasonable fee for preparation for trial and trial in the county court and that a reasonable fee for an appeal to the court of civil appeals would be $500 and another $500 if appealed to the supreme court. On cross-examination, Morgan Express’s counsel elicited the fact that the default judgment had been reversed due to Elizabeth-Perkins’s attorney’s failure to have a court reporter present at the default hearing and that the proceedings after the remand would have been unnecessary if the default judgment had been upheld.

Although the jury was not bound to accept this testimony absolutely, it was not at liberty to reject it totally in finding “none” in answer to the question concerning reasonable attorney’s fees. The only question presented to the jury with respect to attorney’s fees was the reasonable value of these services in light of the circumstances; the jury was not asked whether attorney’s fees should be awarded. To allow the jury’s nonresponsive answer of “none” to determine whether attorney’s fees are recoverable would be in contravention of Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon 1971). Thus, the trial court erred in accepting this finding and rendering judgment based on it.

The only ground that might justify the jury’s refusal to find any amount as a reasonable fee for plaintiff’s attorney would be that in view of the limitation of liability, plaintiff could recover no more than $50. However, since there is no evidence that defendant tendered or offered to pay even that amount, the record indicates that the attorney’s services were necessary for that recovery. We recognize that a substantial portion of the services rendered by the attorney were in connection with the default judgment and defendant’s successful appeal from that judgment. Defendant cannot properly be charged with liability for a fee for those services, since they may be attributed to the attorney’s failure to have a record made of the evidence at the default hearing. We recognize also that the ultimate amount of the recovery is a factor to be considered in fixing the amount of the fee. Magids v. Dorman, 430 S.W.2d 910, 912 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.); Guthrie v. Flock, 360 S.W.2d 804, 805 (Tex.Civ.App.—Amarillo 1962, no writ). Nevertheless, we conclude that the smallness of the amount recovered is not a ground for wholly denying any amount as an attorney’s fee. Consequently, we hold that the jury’s failure to find an amount is contrary to the great weight and preponderance of the evidence. Fields v. Worsham, 476 S.W.2d 421, 427 (Tex.Civ.App.—Dallas 1972, writ ref’d n.r. e.); Kost v. Lancaster, 414 S.W.2d 514, 520 (Tex.Civ.App.—Houston 1967, writ ref’d n.r.e.).

The judgment of the trial court is reversed and judgment is here rendered for plaintiff in the amount of $50. Plaintiff’s claim for an attorney’s fee is severed, and, with respect to that claim, the cause is remanded to the trial court for a determination of the amount of a reasonable fee.

Reversed and rendered in part and remanded in part.


author: EVANS, Justice.

text:
    AMERICAN INDEMNITY COMPANY, Appellant, v. Nellie JENKINS et al., Appellees.
    No. 16905.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 2, 1977.

      Fulbright & Jaworski, William W. Vernon, Houston, for appellant.
    Kenneth N. Knox, Houston, for appellees.
   EVANS, Justice.

The appellant has moved to consolidate its appeal with its subsequently filed petition for writ of error.

A litigant may pursue both an appeal and a writ of error, providing that there is compliance with statutory requirements. Reef v. Hamblen, 47 S.W.2d 375, 378 (Tex.Civ.App.—Dallas 1932, writ ref’d); Western Union Telegraph Co. v. White, 143 S.W. 958 (Tex.Civ.App.—Amarillo 1912, no writ). However, the court of civil appeals does not have jurisdiction to consider the writ of error after the appeal has been determined on its merits. Peter Co. v. Green, 42 S.W.2d 1055 (Tex.Civ.App.—Austin 1931, writ ref’d).

A determination of the appeal in the case at bar would terminate this court’s jurisdiction to hear the appellant’s writ of error. On the other hand if the appellant should abandon its appeal, it would not be precluded from prosecuting its writ of error, provided no prejudice to the appellee results. Scottish Union & National Insurance Co. v. Clancey, 91 Tex. 467, 44 S.W. 482, 484 (1898).

There is authority indicating consolidation to be appropriate under circumstances similar to the situation in the case at bar. Nixon v. New York Life Ins. Co., 100 Tex. 250, 99 S.W. 403 (1906). However, at the time Nixon was decided, a writ of error proceeding was not restricted to parties who had not participated in the actual trial. Under the present statute, only those persons who did not participate in the actual trial are entitled to review by writ of error. Art. 2249a, Tex.Rev.Civ.Stat.Ann. Thus, until the writ of error is considered on its merits the appellate court’s jurisdiction over the proceedings is not established.

A consolidation of the appeal with the writ of error proceedings in the case at bar would create potential problems of jurisdiction which outweigh the convenience of handling the two proceedings as a single cause. The appellant’s motion for consolidation is refused.


author: ROBERTSON, Justice.

text:
    CHARTER MEDICAL CORP., Mesquite Memorial Hospital, Inc., and Howard R. Mulcay, Appellants, v. Dr. Michael J. MILLER, Dr. Harvey I. Wine and Dr. Richard Eusanio, Appellees.
    No. 19288.
    Court of Civil Appeals of Texas, Dallas.
    June 8, 1977.
    Rehearing Denied Aug. 11, 1977.

      Bertrán T. Bader, III, Bert Bader, Bader, Wilson, Menaker, Cox & Branson, Dallas, for appellants.
    R. Jack Ayres, Jr., Kelsoe & Ayres, Dallas, for appellees.
   ROBERTSON, Justice.

This is the second interlocutory appeal we have heard in this case. We dissolved an earlier temporary injunction for lack of a specific statement of reasons as required by rule 683, Texas Rules of Civil Procedure. See Charter Medical Corp. v. Miller, 547 S.W.2d 77 (Tex.Civ.App., Dallas 1977, no writ). As before, Charter Medical Corporation, Mesquite Memorial Hospital, and Howard Mulcay now appeal from the issuance of a temporary injunction restraining them and all others acting in concert with them from enforcing the amended bylaws of the hospital or in any manner attempting to interfere with or limit the ap-pellees’ rights to practice podiatry in the hospital as those rights existed prior to the bylaw amendments. The apparent basis of the appellees’ claim is that the amended bylaws unreasonably regulate their alleged constitutional right to practice podiatric medicine by requiring medical staff consultation and supervision of surgery performed by podiatrists. Allegedly, this constitutes invidious class-based discrimination in violation of the podiatrists’ civil rights and results in irreparable harm for which there is no adequate remedy at law. Initially, appellants again assert that the temporary injunction is fatally defective for its failure to describe the prohibited acts specifically. Alternatively, appellants chai-lenge the appellees’ failure to show immediate and irreparable harm and the absence of an adequate remedy at law. While we find the order sufficiently describes the proscribed activities, we find no showing of immediate and irreparable harm which would justify injunctive relief. Accordingly, we dissolve the temporary injunction and remand the case for trial on the merits.

Appellants do not challenge the entire order; they only attack the final section, which enjoins them from

* * * in any manner attempting to interfere with, abridge or limit the Plaintiffs’ rights to practice in Mesquite Memorial Hospital as they existed prior to the adoption of the aforesaid ARTICLE XI of the Bylaws.

Allegedly, this portion of the order is too general because it fails to set forth the specific reasons for issuance required by rule 683, Texas Rules of Civil Procedure. We disagree. Considered as a whole, the order sufficiently informs appellants of the prohibited activity, and the generality of this final section does not necessitate dissolution of the restraint.

Although it is true that this final section does not specify the nature of appellees’ “rights to practice” prior to the bylaw amendment, this generality is cured by earlier parts of the order wherein the court specifically described those preamendment rights. The court’s findings of fact are included within the order and recite that prior to the amendment, the podiatrists had been granted privileges in the hospital as “clinical consultants.” According to the findings, these privileges entitled the podiatrists to admit patients and to perform surgery within the scope of their license with the concurrent medical management of any general practitioner on the hospital staff. These findings aid the final paragraph of the order by fully describing the rights which are to be observed. Considering the findings of fact stated in the order, the temporary injunction is not fatally defective for lack of specificity. When the court’s findings of fact are recited in the order granting the temporary injunction, the findings may supply the requirements of rule 683. Littlejohn v. Finder, 348 S.W.2d 237, 239 (Tex.Civ.App., San Antonio 1961, no writ). This holding does not conflict with our previous decision in Schulz v. Schulz, 478 S.W.2d 239, 245 (Tex.Civ.App., Dallas 1972, no writ), for in that case, this court held that findings of fact filed separately from the injunctive order cannot cure the order’s lack of specificity. As stated in Schulz, the purpose of the specificity requirement is to promptly notify and advise the enjoined party of the prohibited activity, and findings or conclusions which are made after the issuance of the injunction cannot supply this notice. In this case, however, the findings are recited in the body of the order and sufficiently describe the proscribed conduct; a party who reads the entire order is clearly informed of the scope of his restraint. Accordingly, we hold that the injunction was formally correct under rule 683.

Appellants also assert various evidentiary challenges based on grounds of inadmissibility and insufficiency. However, our review of the record leads us to conclude that even if the evidence were properly admitted, it does not support the issuance of a temporary injunction. Consequently, we do not review the points of error which challenge evidentiary admissibility.

Appellants assert that the evidence fails to show the necessary prerequisites to issuance of a temporary injunction, namely, immediate and irreparable injury, absence of an adequate legal remedy, and a probable right of recovery. We agree that the evidence fails to show any threat of immediate and irreparable harm. The only appellee to testify, Dr. Miller, admitted that his podiatric privileges were not limited to Mesquite Memorial Hospital, but that he had privileges at several other facilities, including one located in Mesquite. He further stated that podiatrists were on the staff at several major local hospitals. It follows from this testimony that, under the present record, appellants have not shown that the new regulations irreparably injured their alleged rights to practice podiatry. There was no showing that resort to these other facilities pending decision on the merits would have prejudiced or interfered with appellees’ practice. While we recognize that appellees were not required to establish conclusively an irreparable injury at the temporary injunction hearing, Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953); Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684, 688 (Tex.Civ.App., Dallas 1976, writ ref’d n.r.e.), they were at least required to introduce some evidence that the new bylaws threatened their livelihood with irreparable harm. Absent such a showing, the circumstances do not indicate that denial of a temporary injunction will probably cause immediate and irreparable loss. We point out, however, that our decision is based on the present record and does not determine any issue that may be presented at the final trial on the merits. As in most interlocutory appeals, the record is less complete than one made at a plenary trial.

Finally, we see no justification for the failure to try this case on the merits during the pendency of our decisions on the temporary injunction appeals. Indeed, the entire case could have been finally and expeditiously resolved in less time than that consumed by these interlocutory appeals. Temporary injunction appeals do not stay proceedings on the merits. Conway v. Irick, 429 S.W.2d 648, 649-50 (Tex.Civ.App., Fort Worth 1968, writ ref’d); Rhoton v. Texas Land & Mortgage Co., 80 S.W.2d 763 (Tex.Civ.App., Eastland 1935, writ ref’d). On the contrary, injunction cases are entitled to precedence for trial on the merits, and counsel should diligently seek an early trial during the pendency of the appeal, rather than assuming an automatic right to delay until decision of the interlocutory appeal. Irving Bank & Trust Co. v. Second Land Corp., supra, 544 S.W.2d at 689. Pendency of such an appeal should not delay discovery or other preparations for trial. As our supreme court and this court have repeatedly advised, the most expeditious way of obviating the hardship of an unfavorable preliminary order is to try the case on the merits and thus secure a hearing in which both facts and law may be fully developed; in this way, both trial and appellate courts may render judgment finally disposing of the controversy. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 422 (1959); Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 464 (1952); Irving Bank & Trust Co. v. Second Land Corp., supra; Charter Medical Corp. v. Miller, 547 S.W.2d 77, 79 (Tex.Civ.App., Dallas 1977, no writ). Absent extraordinary circumstances, there can be no justification for further delaying the trial of this case.

The judgment of the trial court is reversed, and the temporary injunction is dissolved.


text:
    UNITED COIN METER COMPANY, INC., Appellant, v. SAVANNAH GARDENS, INC. OF TEXAS, Appellee.
    No. 19323.
    Court of Civil Appeals of Texas, Dallas.
    June 10, 1977.

      Edward S. Koppman, Akin, Gump, Hauer & Feld, Dallas, for appellant.
    John R. Henderson, David J. White, Stalcup, Johnson, Meyers & Miller, Dallas, for appellee.
   ROBERTSON, Justice.

This appeal is from the denial of a temporary injunction. United Coin Meter Company, appellant, has sued Savannah Gardens, Inc. of Texas, appellee, seeking to permanently enjoin the forfeiture of its alleged leasehold interest in the laundry rooms of the Redbird Village Apartments owned and operated by appellee. United Coin applied for a temporary injunction due to appellee’s threat to remove the laundry equipment now serving the apartments. The trial court denied temporary relief, and United Coin now appeals. We affirm.

On December 15, 1970, a deed of trust was executed by the general partner of the Redbird Village Apartments, which conveyed the legal title to the property upon which the apartments were located to a trustee. On December 30,1970, the partner executed an agreement whereby he allegedly leased the laundry rooms of the apartments to United Coin for a ten-year term. The trustee subsequently foreclosed on the property, and after a series of conveyances, appellee purchased the apartments on October 31, 1974. When United Coin contacted appellee regarding renewal of the lease, appellee attempted to disclaim the lease, stating that it had been terminated by the foreclosure sale. Further, appellee asserted that it had never ratified the lease and that United Coin was, at best, a tenant from month to month whose rights were subject to termination at any time. When appellee threatened eviction, United Coin sued to enjoin the ouster.

The resolution of this case hinges upon two basic issues. The initial question is whether the foreclosure sale has terminated United Coin’s rights under the original lease and, if so, whether appellee ratified the original lease after it purchased the property. If United Coin has rights under the lease, it must then be determined whether injunction is a proper remedy for the protection of those rights or whether an adequate remedy at law exists for damages.

Each party has presented authorities both here and at trial which allegedly support their respective positions. Citing Beutell v. United Coin Meter Co., 462 S.W.2d 334 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.), United Coin urges that its occupancy at the time the premises were conveyed charged appellee with constructive knowledge of the original lease terms and that by accepting rentals after the purchase, appel-lee ratified the original lease. On the other hand, appellee urges that ratification cannot be premised upon constructive knowledge; rather, citing Frazier v. Wynn, 472 S.W.2d 750, 753 (Tex.1971), it asserts that ratification can only occur when the approving party has full and actual notice of the original lease terms. Regarding the adequacy of legal remedies, United Coin asserts that injunctive relief is available to a lessee of real estate to prohibit improper interference with possession. Two of our cases are cited to support this argument: Shaw v. Nachman, 316 S.W.2d 163 (Tex.Civ.App.—Dallas 1958, no writ), and Grady v. Fryar, 103 S.W.2d 1080 (Tex.Civ.App.—Dallas 1937, no writ). Appellee denies that the lease in question involves an interest in real estate and urges us to follow the more recent decision of United Coin Meter Co., Inc. v. Johnson-Campbell Lumber Co., 493 S.W.2d 882 (Tex.Civ.App.—Fort Worth 1973, no writ) which, on facts similar to this case, affirmed a denial of injunctive relief because damages were an adequate remedy.

We decline to address these issues on this appeal since we conclude that the trial judge had discretion to reserve these questions for final trial. Each issue raises substantial questions of law and fact which the judge, in his discretion, could properly reserve until full development of the facts and law at a plenary trial. Town Plaza Fabrics, Inc. v. Monumental Properties, 544 S.W.2d 775, 776 (Tex.Civ.App.—Dallas 1976, no writ); Irving Bank and Trust Co. v. Second Land Corp., 544 S.W.2d 684, 687-88 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.). Decision of these questions on this appeal would be premature, for the ultimate legal rights of the parties should not be determined on interlocutory review. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421 (1959); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 553 (1953); Irving Bank and Trust Co. v. Second Land Corp., supra, 544 S.W.2d at 688. We merely hold that appellee’s showing cast sufficient doubt on United Coin’s right to injunctive relief to invoke the trial judge’s discretion to deny a temporary injunction. We emphasize that our decision is based upon the present record and does not determine any issue that may be presented at the final trial on the merits. As in most interlocutory appeals, the record is less complete than one made at a plenary trial.

Moreover, appellant’s claim of irreparable injury is not supported by a showing that it could not obtain an early trial on the merits of his application for permanent injunction, with damages for whatever temporary loss it might experience meanwhile. Presumably, the trial court would have given the suit for injunction such precedence as the circumstances require. So far as appears, appellant has not even requested a trial setting. Without information about the probable trial date, we cannot say that the court abused its discretion in reserving decision on the present questions until complete development of the facts. See Town Plaza Fabrics, Inc. v. Monumental Properties, supra.

The order of the trial court denying the temporary injunction is affirmed.


author: HUGHES, Justice.

text:
    Dr. C. D. HAMILTON, Appellant, v. Charles SOWERS, Appellee.
    No. 17886.
    Court of Civil Appeals of Texas, Fort Worth.
    June 16, 1977.
    Rehearing Denied July 21, 1977.

      Cantey, Hanger, Gooch, Munn & Collins, and Richard L. Griffith, Fort Worth, for appellant.
    John H. Holloway, Houston, for appellee.
   OPINION

HUGHES, Justice.

This appeal from an interlocutory order denying his plea of privilege is brought by C. D. Hamilton, M.D., a co-defendant in a medical malpractice suit. Hamilton was sued in Tarrant County as a co-defendant with Robert Capper, M.D., a resident of Tarrant County. Hamilton is a resident of Johnson County. Sowers controverted Hamilton’s plea of privilege by urging exceptions under Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 4 and 29a (1964).

We reverse. The case against Hamilton is ordered transferred.

It is undisputed that Sowers, a man with a history of heart disease, went to Hamilton in Cleburne, Johnson County, Texas, for treatment of what Hamilton “thought was severe coronary artery disease.” After five days in the Johnson County hospital, at Hamilton’s suggestion, Sowers transferred to Harris Hospital in Fort Worth, Tarrant County, Texas, for tests by Capper to determine if an operation would help him. Specifically, the test was a selective coronary arteriogram and aortogram, which involved injecting dye into Sowers’ bloodstream. After such injection, Sowers had blood clots form in his feet, both of which had to be partially amputated.

Sowers claimed Capper was negligent in administering the dye; in failing to furnish adequate and proper medications or surgical treatment; and in not obtaining his, Sowers’, “informed consent” to the test performed and the medical treatment rendered for the complications resulting from such test.

Hamilton’s points of error nos. 1 and 2 deal with Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 29 (1964). Sowers concedes in his brief that subd. 29 is not applicable to this case. Points of error nos. 1 and 2 are sustained.

Is Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 4 (1964) applicable? No findings of fact or conclusions of law were requested or filed. Accordingly, we must construe all of the evidence favorable to the trial court’s fact finding in its denying a change of venue. It is apparent that the answer to the question is whether or not Sowers pleaded and proved a cause of action against the resident defendant, Capper. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (Tex.Com.App.1936, opinion adopted); Houseman v. Mahin, 390 S.W.2d 732 (Tex.1965).

The main complaint of Sowers is that Capper failed to obtain his “informed consent” to the dye injection. Capper testified to telling Sowers before the injection: The fact of what he was going to do; there was a risk involved in any invasive diagnostic procedure; he was cognizant of the risk; he did everything medically feasible to prevent complications. Sowers denied being told anything by Capper or anyone else about any risk in the diagnostic procedure, and stated that he did not know anything about what was to be done to him until the needle was put into his leg. We must conclude, therefore, that the trial court believed Sowers and decided that Capper made no disclosure. (Viewing the evidence in the light most favorable to the decision of the trial court.)

It has been held that “Physicians and surgeons have a duty to make a reasonable disclosure to a patient of risks that are incident to medical diagnosis and treatment. This duty is based upon the patient’s right to information adequate for him to exercise an informed consent to or refusal of the procedure.” Wilson v. Scott, 412 S.W.2d 299, 302 (Tex.1967). The same case holds that the plaintiff in a malpractice suit has “ . . . the burden to prove by expert medical evidence what a reasonable medical practitioner of the same school and same or similar community under the same or similar circumstances would have disclosed to his patient about the risks incident to a proposed diagnosis or treatment, that the physician departed from that standard, causation and damages.” (Emphasis ours.)

Capper, in answer to a question as to whether it was customary for doctors in his community to advise a patient of the risk of injury in a surgical procedure of this nature, said: “The patients are advised. I advise my patients that a risk of injury exists.”

According to Wilson v. Scott, supra, Capper established a medical standard by his own testimony, above quoted. According to testimony before the trial court by Sowers, the standard was not followed by Capper because he gave Sowers no warning of risk.

However, though treating negligence as established, we must hold that plaintiff’s evidence failed to establish that such was causally connected of his injury. Furthermore, we hold that evidence to the contrary having been produced on trial without a rebuttal by plaintiff, though he should have been enabled if he could, the case is controlled thereby.

According to Conrey v. McGehee, 473 S.W.2d 617, 621 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref., n. r. e.): “Where the only expert medical testimony in a malpractice action expresses the opinion that defendant’s treatment was not the proximate cause of the injury complained of, and there is no expert opinion to the contrary, a directed verdict for the defendant is proper.” Also Henderson v. Mason, 386 S.W.2d 879 (Tex.Civ.App.—El Paso 1964, no writ). The testimony of Hamilton was that he did not think the procedure probably caused the dislodgement of the plaque. The circumstances of an early onset of symptoms of arterial blockage are strongly indicative of a causal connection to a layman, but there is no expert opinion to connect the injection to the injury.

There is insufficient evidence to prove Capper was negligent in the diagnostic treatment, and the doctrine of res ipsa loquitur cannot be applied in a case such as this. Southwest Texas Methodist Hospital v. Mills, 535 S.W.2d 27 (Tex.Civ.App.—Tyler 1976, writ ref., n. r. e); Louis v. Parchman, 493 S.W.2d 310 (Tex.Civ.App.—Fort Worth 1973, writ ref., n. r. e.). “ . . . the doctrine is applicable only where it is a matter of common knowledge among laymen or medical men, or both that the injury would not have occurred without negligence. (Cases cited.) Very few laymen have had experience in administering anesthetics by use of a hypodermic needle. Consequently, insofar as laymen are concerned, it cannot be said in this instance that it is a matter of common knowledge that the injury would not have occurred without negligence. Such conclusion can rest only upon expert testimony.” Southwest Texas Methodist Hospital v. Mills, supra, at page 30. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Brown v. Shannon West Texas Memorial Hospital, 222 S.W.2d 248 (Tex.Civ.App.—Austin 1949, writ ref., n. r. e.).

We sustain appellant’s points of error nos. 3, 4 and 5 for the reasons stated. We reverse the order of the trial court denying appellant’s plea of privilege and order the cause, as against Dr. C. D. Hamilton, transferred to the District Court of Johnson County, Texas.