author: CORNELIUS, Justice.

text:
    CITY OF TEXARKANA, Texas, Appellant, v. KITTY WELLS, INC., Appellee.
    No. 8375.
    Court of Civil Appeals of Texas, Texarkana.
    July 20, 1976.

      Clayton Hutchins, City Atty., Robert M. Tharp, Asst. City Atty., Texarkana, for appellant.
    John D. Raffaelli, Raffaelli & Hawkins, Texarkana, for appellee.
   Opinion

CORNELIUS, Justice.

For the purpose of widening and reconstructing two streets, appellant City of Tex-arkana condemned .64 acres and took a temporary “working easement” over 25,406 additional square feet out of a 16.47 acre tract of land owned by appellee Kitty Wells, Inc. After objections to the award of the commissioners, the cause was tried before a jury which awarded appellee $83,-196.00 for the land taken, including the temporary easement, and found that the remainder of appellee’s land (a shopping center) had been diminished in value by $50,000.00 as a result of the taking.

Upon engaging in the widening and reconstruction project, the City required ap-pellee to close two entrance driveways which opened onto one of the streets, and to relocate them so they would be aligned with corresponding entrances on the opposite side of the street. Appellee introduced evidence of the costs it had incurred in relocating and reconstructing the entrances, as bearing upon the damages done to the remainder of its property.

Appellant contends (1) there was no evidence or insufficient evidence to support the jury finding of $50,000.00 damage to the remainder of appellee’s property, and (2) the costs of relocating and reconstructing the entrances resulted from a valid exercise of the police power of the City in regulating traffic for the safety and convenience of the public, and are therefore not recoverable.

The basis of appellant’s first contention is that appellee proved only the costs of relocating the entrances and of rebuilding its parking facility as a result thereof, and did not prove the market value of the remainder of its property immediately before and after the taking or make any attempt to relate the relocation costs to market value. We overrule this contention. The cost of relocating or reconstructing improvements cannot be recovered as separate and independent items of damages, but where by taking part of a tract the relocation or reconstruction of improvements is rendered necessary to the reasonable use and enjoyment of the remainder, and the burden of moving and reconstructing such improvements is cast upon the owner, then that burden, insofar as it depreciates the value of the land, is a proper element to be considered in estimating the damages. The land is depreciated in proportion to the expense, and the allowance is for the diminution in the market value of the land in consequence of the burden thus cast upon it. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979 (1936, opinion adopted); State v. Meyer, 403 S.W.2d 366 (Tex.1966); Sample v. Tennessee Gas Transmission Co., 151 Tex. 401, 251 S.W.2d 221 (1952); Central Power & Light Company v. Martinez, 493 S.W.2d 903 (Tex.Civ.App. Corpus Christi 1973, no writ); State v. Bernhardt, 334 S.W.2d 203 (Tex.Civ.App. Texarkana 1960, no writ); 2A Nichols, The Law of Eminent Domain, Sec. 6.45; 27 Am.Jur.2d, Eminent Domain, Sec. 314, p. 133. The jury found the value of the remainder of appellee’s land immediately prior to the taking to be $4,045,480.00 and the value immediately after the taking to be $3,995,480.00, a diminution in value of $50,000.00. As we construe the testimony of the Witness A. P. Miller, he stated that all of appellee’s land, exclusive of improvements, was on an average worth $1.50 per square foot at the time of the taking. There were 689,690 square feet left in the remainder, which would make the highest estimate of its value, exclusive of improvements, $1,345,350.00. The highest value for the improvements (all of which were located on the remainder) was set at $3,000,000.00, making a total value of $4,345,350.00. Thus, the jury’s finding of $4,045,480.00 for the value of the remainder immediately before the taking is well within the testimony. Appellee produced evidence that net expenses of $40,-357.95 were incurred by it in consequence of the required relocation and reconstruction of its entrances and parking facilities. Its evidence also showed that by reason of the necessity to allow an access driveway at one point on its property, appellee lost a building site valued at $48,000.00 where a 12,000 square foot building was planned to be built for leasing. Although appellant offered evidence that a smaller building, perhaps of 10,000 square feet, could still be built on that site, the jury was not required to accept that evidence, and even if it did, could still conclude that appellee had lost a substantial portion of the building site. Considering the evidence that $40,357.95 expenses were incurred in relocating and reconstructing the entrances and parking facilities, and that appellee lost all or a portion of the building site valued at $4.00 per square foot, the jury’s answer that the market value of the remainder had decreased to $3,995,480.00 as a consequence of the burden cast upon it is well within the proof. These items of expense and loss were properly related to market value under the requirements announced in State v. Carpenter, supra, and the other authorities heretofore cited.

Appellant introduced evidence that the relocating of the entrances and driveways was required in order to alleviate a traffic hazard and to eliminate congestion. It contends this requirement was not a part of the taking by eminent domain, but was a valid exercise of the police power, and therefore the damages suffered as a consequence thereof are not recoverable.

Our Constitution provides in Article 1, Section 17, that:

“No person’s property shall be taken, damaged or destroyed ... or applied to public use without adequate compensation being made . . ..”

At one time, however, Texas adhered to the rule that damages suffered as a result of regulations enacted as a lawful exercise of the police power were not recoverable. City of San Antonio v. Pigenhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218 (1958). But that rule has been severely criticized, and our courts have now moved away from an emphasis upon technical distinctions between the exercise of police power and that of eminent domain, and toward the view that compensation should be allowed whenever there is such a substantial impairment or deprivation of one’s property rights as amounts to a virtual taking. Indeed, our Supreme Court has on two occasions expressly rejected the police power argument. San Antonio River Authority v. Lewis, 363 S.W.2d 444 (Tex.1962); Brazos River Authority v. City of Graham, 163 Tex. 169, 354 S.W.2d 99 (1961). Moreover, it is settled that a material and substantial impairment of one’s access as a result of the construction of a public highway or other facility is compensable even when a taking by eminent domain is not involved. City of Waco v. Texland Corp., 446 S.W.2d 1 (Tex.1969). See also City of San Antonio v. Olivares, 505 S.W.2d 526 (Tex.1974), and DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.1965). The relocation of the entrances and driveways here was required in connection with the City’s widening and reconstructing a public street. In order to avoid the total loss of access, appel-lee was forced to conform its entrances and driveways to the requirements of the City. It thus appears that, without regard to the taking by eminent domain, the damages resulting therefrom would be recoverable under the rules applied in City of Waco v. Texland, supra.

In view of the disposition to be made of this case, it is not necessary that we pass upon appellee’s cross-point. The judgment of the trial court is affirmed.

      . The record does not reveal whether this action was required by ordinance or otherwise but it is conceded by both parties that the move was required by the City, and no complaint is made here of the means used by the City to accomplish that result.

      . The valuation was by tiers, with a $4.00 per square foot value on the front tier, with decreasing valuations toward the rear of the property, with an overall or average value of $1.50 per square foot.

      . Stoebuck, The Property Right of Access Versus the Power of Eminent Domain, 47 Tex.L. Rev., No. 5, p. 733.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    Frankie R. MELDER, Appellant, v. PHILLIPS PIPE LINE COMPANY, Appellee. Francis A. RECH et ux., Appellants, v. PHILLIPS PIPE LINE COMPANY, Appellee.
    Nos. 12450, 12451.
    Court of Civil Appeals of Texas, Austin.
    July 21, 1976.
    Rehearing Denied Aug. 18, 1976.

      Terrence Kendall, Kendall, Randle, Finch & Osborn, Austin, for appellants, Frankie R. Melder, Francis A. Rech et ux.
    Kent M. Rider, Stayton, Maloney, Hearne & Babb, Austin, for appellee.
   PHILLIPS, Chief Justice.

This is an easement case. Appellant Frankie R. Melder and appellants Francis A. Rech and Anna M. Rech filed separate actions against appellee Phillips Pipe Line Company for damages sustained when Phillips replaced an existing pipeline that traversed their respective lands with a new pipeline constructed parallel to, but fifteen feet north of the previously existing line.

The facts and issues in the two cases being similar, they were heard jointly by the trial court without a jury. The trial court entered take-nothing judgments against appellants in both cases, and both appeals, having been consolidated by this Court, are now before us for review. We affirm the judgment of the trial court.

The parties have stipulated to many of the relevant facts. Miss Melder is the owner of 27.45 acres of land in Travis County which is subject to an easement granted by one of her predecessors in title to Shell Pipe Line Company in 1928. Mr. and Mrs. Rech are the owners of 10.69 acres of land in Travis County subject to an easement granted to Shell by one of their predecessors in title in 1929. Shell subsequently assigned a pipeline it had built over these and other lands pursuant to such easements to Phillips, along with the right to repair and/or replace the line. In 1973 Phillips replaced the line and these suits seeking damages were filed.

The question presented by these appeals is whether the appellants can recover for damages to their lands under the easement deeds, which provide that the grantee and its assigns are obligated “to pay any damages which may arise to crops, timber, fences or buildings” due to the use by grantee and its assigns of the easement.

The trial court found that during the construction, Phillips removed various trees from appellants’ lands and the reasonable fair market value of the lands was diminished thereby.

It is undisputed that grass and ground cover were also removed, that a portion of a low stone wall was removed from Miss Melder’s tract, and that caliche was turned up from the ditch dug for the pipe which covered areas of the previously existing topsoil.

Nonetheless, the trial court found that appellants “suffered no damage to any crops, timber, fences or buildings situated on their property as the result of the acts of Defendant, Phillips Pipe Line Company, in replacing its pipeline across that land at a different location from its existing pipeline.”

The primary question presented by this appeal is whether the trial court erred in holding that appellants suffered no damage to any crops, timber, fences or buildings situated on their properties as a result of the replacing of the pipeline across their respective lands. We agree with the trial court that they did not. Naturally growing grass, ground cover, and brush are not crops. Proof was not made that the various trees destroyed were timber in the generic sense; neither is a low rock wall twelve to eighteen inches in height and twelve to fifteen feet in length, used to reduce soil erosion, a fence.

Words used in a contract are to be given their ordinary and accepted meaning. Lilac Variety, Inc. v. Dallas Texas Company, 383 S.W.2d 193 (Tex.Civ.App.1964, writ ref’d n. r. e.); Fox v. Thoreson, 398 S.W.2d 88 (Tex.1966).

With respect to the definition of crops, the courts have held that natural grasses, shrubs and trees are not considered in law to be growing crops. Union Producing Co. v. Allen, 297 S.W.2d 867 (Tex.Civ.App.1957, no writ); Wohlford v. American Gas Production Co., 218 F.2d 213 (5th Cir. 1955). Union Producing Co., supra, defines growing crops as all plants which are planted and cultivated. The natural grasses, ground cover, and shrubs destroyed in the cases at bar do not fit this definition. Also see Wohlford v. American Gas Production Co., supra.

The word “timber” has been generally defined as meaning growing trees suitable to be used for the construction of building, tools, utensils, furniture, fences, ships, etc. This concept of timber distinguishes it from saplings, and undergrowth, fruit trees, and trees suitable only for firewood or cord-wood, or for decoration. 52 Am.Jur.2d Logs and Timber § 1 (1970). Also see 72 A.L.R.2d 727, 730, 732 (1960); 161 A.L.R. 549 (1946). Black’s Law Dictionary defines “timber” as “wood felled for building or other such like use.” Webster defined “timber” as “lumber,” and the American Heritage Dictionary defines it as “1. trees or wooded land considered as a source of wood. 2a. Wood as a building material; lumber.”

Among the trees which appellants allege were removed from the 50-foot wide easement strip, the cedar and oak might or might not have been useful for the construction of buildings, fence posts, or other items made from wood. However, appellants neither pleaded nor proved that any of these trees were suitable for such uses; nor is there any evidence in the record concerning the amount of timber destroyed, or its value. Appellants offered instead evidence of the value of the trees for shade and ornamentation, and the reduction in the value of their land as a consequence of their removal. Growing trees, valuable for shade or ornamentation, or for fruit, are not considered to be timber in the generally accepted use of the word. See Cummer-Graham Co. v. Maddox, 155 Tex. 284, 285 S.W.2d 932 (1956). The trial court was correct in finding that no timber had been destroyed.

We are also of the opinion that the low rock wall approximately one and one-half feet high by twelve to fifteen feet in length, will not come under the definition of a fence as contemplated by the contract.

In Mutual Lumber Co. v. Sheppard, 173 S.W.2d 494 (Tex.Civ.App.1943, no writ), this Court stated: “A fence is an inclosure about a field or other space, or about any object, and is especially an inclosing structure of wood, iron, or other material, intended to prevent intrusion from without or straying within.” (citing cases) This definition comports with the definition of a fence generally given in the standard usage dictionaries. The low rock wall which was described in the testimony as having been erected to prevent soil erosion is usually referred to as a retaining wall; however, it is not, in general usage, considered to be a fence.

The judgment of the trial court is in all things affirmed.

Affirmed

      . There is no question before us as to any negligence on the part of Phillips in constructing the pipeline; so, damages, if any, can be found only under the provisions of the contract between the parties quoted above. In this connection see: Shell Pipe Line Corp. v. Coston, 35 S.W.2d 1056 (Tex.Civ.App.1931, no writ).

      . Black’s Law Dictionary, p. 1653 (4th ed. 1968).

      . Webster’s International Dictionary, p. 1345 (2nd ed. 1973).


author: CLAUDE WILLIAMS, Chief Justice.

text:
    Jonathan FREED, Appellant, v. Albert P. DICKER, Appellee.
    No. 18915.
    Court of Civil Appeals of Texas, Dallas.
    July 22, 1976.

      W. W. Mitchell, III, Berman, Fichtner & Mitchell, Dallas, for appellant.
    Linda S. Aland, Strother, Davis, Stanton & Levy, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Jonathan Freed appeals from a summary judgment rendered in favor of Albert P. Dicker. Freed seeks reversal of the summary judgment because it is not supported by the evidence and because there are genuine issues of material fact which would preclude the granting of the judgment. We agree and reverse and remand.

The dispute between the parties arises out of a transaction involving a management contract for an apartment building in Dallas. On June 1, 1973, a management contract was executed by Freed, individually and on behalf of Dicker, as managers, and four residents of Italy, the Toffanos, as owners of the apartment building. The record reveals that the Toffanos were contemplating the purchase of the Danbury Apartments in Dallas and that in contemplation of such purchase, they executed the document calling for Dicker and Freed to manage the property for them for a compensation of four percent of the gross collected rental. The agreement does not reveal how the four percent of gross rental is to be divided between Dicker and Freed. The four Toffanos failed to complete the purchase. Subsequently, after two of the Toffanos successfully purchased the building, they signed a second management agreement on July 18, 1973, with Jonathan Freed providing that only he be paid four percent of the gross collected rental. Dicker sued Freed to recover one-half of the compensation, or two percent, of the gross collected rental for his portion of the management contract compensation based upon the June 1, 1973 agreement.

Appellant Freed contends that the four Toffanos, as a group named in the contract, did not purchase the Danbury Apartments but on the contrary since only two of them successfully purchased the apartments, the document dated June 1, 1973, “never became effective.” Dicker alleges that the June 1, 1973, agreement was effective, was not rescinded and in fact was the contract under which the apartment building was being managed.

Summary judgment practice imposes on the movant a burden to establish that there is no genuine issue of fact as to one or more of the essential elements of the movant’s cause of action and that judgment should be rendered as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). Consequently, we must review the summary judgment evidence to determine if it raises a genuine issue of fact. Dicker’s motion for summary judgment is supported by his affidavit and deposition. His affidavit states:

On June 1, 1973, defendant and I entered into an agreement with Mrs. Elena del Rio de Toffano and Mr. Vito Toffano whereby defendant and I were to undertake the management responsibilities of the Danbury apartments, Dallas, Texas. For our services in managing such apartments, defendant and I were to share equally in a monthly compensation amounting to four percent (4%) of the collected monthly rental from said apartments.

The affidavit further states that Freed had not paid Dicker his one-half interest in such fee despite demand. Freed’s response to the motion for summary judgment is supported by by his affidavit which states:

(1) . . .1 prepared a proposal in compliance with this request, including the name of Mr. Albert Dicker together with my own, based on the fact that we were engaging in other business ventures together.
(2) The above-mentioned purchase of June, 1973, was not consummated as proposed, and the aforementioned proposed management agreement was never put into effect.
(3) Mrs. Maria Elena del Rio de Toffa-no and Mr. Vito Toffano did subsequently purchase the Danbury Apartments and a new management agreement was prepared to satisfy the new buyers and the new conditions. Messrs. Freed and Dicker had, in the meantime, severed all active business relations together, and the final management agreement was made solely by and between Mr. Freed and Mrs. Maria Elena del Rio de Toffano and Mr. Vito Toffano.

The above affidavits raise a genuine issue of material fact concerning whether the parties when executing the June 1 agreement contemplated that the successful purchase by all four Toffanos would be a condition precedent to the contract. This question of fact must be answered in order to determine if the June 1 agreement ever became effective. Thus, we hold that because a genuine issue of fact is presented, the trial court erred in sustaining the motion for summary judgment.

Dicker’s deposition also contains testimony as to the division of the management fee between Freed and Dicker. The relevant testimony is as follows:

Q. (Mr. Mitchell) As I understand your agreement with regard to managing the property it was that under this June 1, 1973, agreement you and Mr. Freed would receive a total of 4% of the rentals of the property?
A. The gross rental.
Q. And it was your understanding that you and Mr. Freed were to split this amount 2% each: is that correct?

A. That’s what the agreement calls for. The June 1, 1973, agreement contains no provision providing for the distribution of the gross fee to be received by the parties called managers. Dicker did not plead another agreement, oral or written, governing the division of the income, if any, from the June 1,1973, management agreement. Any attempt to determine a proportionate division of the gross fee from these facts when the parties have failed to include it within the June 1 agreement could become an unwarranted judicial revision of the contract.

A question of fact exists as to what agreement, if any, governs the distribution of income from the June 1, 1973, agreement. Since Dicker has not met his burden of establishing by competent summary judgment evidence that he is entitled to judgment as a matter of law, the judgment of the trial court is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


author: AKIN, Justice.

text:
    Jim BYRD and Friendly Chevrolet Co., Appellants, v. Mahyar M. FARD, Appellee.
    No. 18908.
    Court of Civil Appeals of Texas, Dallas.
    July 22, 1976.
    Rehearing Denied Aug. 12, 1976.

      R. Jack Ayres, Jr., Kelsoe, McDonald & Ayres, Dallas, for appellants.
    John Hill, Atty. Gen., Philip K. Maxwell, Asst. Atty. Gen., Austin, for State of Texas pursuant to the Texas Declaratory Judgment Act.
   AKIN, Justice.

This is an appeal from a judgment of the trial court denying Jim Byrd and Friendly Chevrolet Company, defendants and cross-plaintiffs, relief on their counterclaim for a declaratory judgment to declare unconstitutional Title 2, Chapter 17, Subchapter E of the Texas Business and Commerce Code (Vernon Supp.1975), commonly known as the Deceptive Trade Practiees-Consumer Protection Act. The trial court, however, granted defendants’ summary judgment with respect to the action initiated by plaintiff Mahyar Fard and denied defendants’ declaratory relief. Because we hold that no real controversy between the litigants existed after summary judgment was granted in defendants’ favor, the judgment of the trial court is affirmed.

This action was initiated by Mahyar Fard against Byrd and Friendly Chevrolet to recover damages for losses allegedly suffered by plaintiff due to fraudulent misrepresentations allegedly made by Friendly’s agent during the sale of a 1975 Blazer automobile. Fard alleged that Friendly’s salesman represented that the automobile would average approximately sixteen miles per gallon whereas he contended that the automobile actually averaged only eight miles per gallon. Furthermore, Fard alleged that these misrepresentations induced his purchase of the automobile and were, consequently, in violation of the Texas Deceptive Trade Practiees-Consumer Protection Act. Defendants moved for summary judgment contending that the representations made were statements of opinion and that Friendly’s agent was without authority to make any statement which would vary the terms of Friendly’s finance contract. Defendants also filed a counterclaim seeking a declaratory judgment pursuant to Tex.Rev. Civ.Stat.Ann. art. 2524-1, § 2 (Vernon 1965). In this counterclaim defendants alleged that they would be subjected to a plethora of litigation under the Texas Deceptive Trade Practices Act and that the statute is in violation of their constitutional rights of due process and freedom of speech and expression. The trial court granted defendants’ motion for summary judgment but denied their counterclaim for declaratory relief. From that part of the trial court’s order denying defendants declaratory relief, they have appealed. Pard has not appealed nor filed a brief in opposition.

The Declaratory Judgment Act, Tex.Rev.Civ.Stat.Ann. art. 2524-1, § 2 (Vernon 1965) states: “Any person interested under a . written contract . whose rights . . . are affected by a Statute . . . may have determined any question of construction or validity arising under the . . . Statute . .” An essential prerequisite to the maintenance of a declaratory judgment action is the existence of a justiciable controversy. Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722, 724 (1955); Reuter v. Cordes-Hendreks Coiffures, Inc., 422 S.W.2d 193, 196 (Tex.Civ.App.—Houston [14th Dist.] 1967, no writ). A justiciable controversy exists between parties asserting protectable, present rights. E. g., Cowan v. Cowan, 254 S.W.2d 862, 865 (Tex.Civ.App.—Amarillo 1952, no writ). Therefore, there must be a real controversy between litigants which would be actually determined by the judgment sought. Board of Water Engineers v. City of San Antonio, supra at 724. The burden of establishing justiciable controversy is on the moving party. Reuter v. Cordes-Hendreks Coiffures, Inc., supra.

Here, defendants’ counterclaim for declaratory relief merely recites that they are “subject to prosecution under the statute in this and in other cases." [Emphasis added.] The Declaratory Judgment Act “does not contemplate declarations upon matters where the interest of the plaintiff is contingent upon the occurrence of numerous future events . . . .” Orange Independent School District v. West Orange Independent School District, 390 S.W.2d 81, 89 (Tex.Civ.App.—Beaumont 1965, writ ref’d n. r. e.). The only real controversy between the parties was determined by the summary judgment in defendants’ favor on plaintiff’s claim, and that judgment is not before us because plaintiff did not appeal. After plaintiff’s claim was determined, the trial court had no parties asserting adverse claims and no facts upon which a decision would be effective. Thereafter, the trial court had no justiciable controversy before it and properly denied, therefore, declaratory relief. Slinker v. Superior Insurance Co., 440 S.W.2d 730, 732 (Tex.Civ.App.—Dallas 1969, writ dism’d).

Judgment affirmed.


author: PEDEN, Justice.

text:
    Gary V. MORRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 16771.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 22, 1976.

      No brief for appellant.
    No brief for appellee.
   PEDEN, Justice.

Mr. Gary V. Morris seeks to appeal from an Order of Temporary Hospitalization entered after a hearing under the provisions of the Texas Mental Health Code, Articles 5547-1 through 5547-204, Vernon’s Civil Statutes. The appellee has filed a motion to dismiss the appeal for failure of Mr. Morris to timely give written notice of appeal. We grant that motion.

Article 5547-39a provides: “The person ordered committed may appeal the Order of Temporary Hospitalization by filing written notice thereof with the County Court within five (5) days after the Order of Temporary Hospitalization is entered.” (emphasis added). Written notice of appeal was filed by the appellant’s counsel on June 16, 1976.

The trial court’s order bears the clerk’s file mark of June 10, 1976. The term “entered” refers to the ministerial act of the clerk in entering the judgment in the minutes. Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818 (1945).

Justice Frank Wilson wrote in Jackson v. Gish, 440 S.W.2d 121 (Tex.Civ.App.1969, writ ref. n. r. e.) that the use of the term “entered” as meaning “rendered” by the bench and bar of this state “has become so prevalent that it is a matter of common knowledge of which we take judicial notice.”

The trial court’s order begins “On this the 9th day of June, 1976 came on to be heard . . . ”. No other date is recited in the order to suggest that it was rendered or signed on a different day, so if the date of rendition is significant in this case we are required to accept June 9, 1976 as that date. Hedley Independent School District v. Doneghy, 358 S.W.2d 724 (Tex.Civ.App. 1962, no writ).

Under the Texas Rules of Civil Procedure, Rules 306a and 356 in particular, the date when time begins to run on the various steps in appeal is the date of rendition of judgment. As noted, however, Article 5547-39a provides that the time for giving notice of appeal begins to run not on rendition but on entry of the order.

In our case it matters not whether the five-day period was intended to begin on rendition or on entry of the judgment because the written notice of appeal was not filed within five days after either event.

Rule 353, T.R.C.P., was amended effective January 1, 1976 by omitting paragraphs (a) and (b), which required the giving of notice of appeal as an appellate step. Rule 354 was amended by adding paragraph (c); it provides for the giving of notice of appeal when a bond for costs on appeal is not required by law. These amendments to the Rules neither repeal nor impair the statutory requirement of notice imposed by Article 5547-39a.

The appeal is dismissed.


author: COLEMAN, Chief Justice.

text:
    Bonnie BECKHAM et al., Appellants, v. EXXON CORPORATION, Appellee.
    No. 16672.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 22, 1976.
    Rehearing Denied Aug. 19, 1976.
    Brock, Williams & Boyd, Gerald J. Goodwin, Houston, for appellant.
    Charles Matthews, Lauren Eaton, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a summary judgment granted the defendant, Exxon Corporation in a case growing out of an automobile collision between a wrecker driven by Robert Wilder, an employee of Joe Cunningham, who operated an Exxon Service Station. The issue is the existence of a master/servant relationship between Exxon and Joe Cunningham. We find no evidence raising an issue of fact and affirm the judgment of the trial court.

Exxon has the burden of establishing by affirmative evidence that there are no material issues of fact. Farley v. Prudential Insurance Co., 480 S.W.2d 176 (Tex.1974). The court will be guided by this principle of law in reviewing the evidence.

Guidelines for evaluating the relationship between Exxon and Cunningham are provided by the Supreme Court in Texas Co. v. Wheat, 140 Tex. 468, 168 S.W.2d 632 (1943), and Humble Oil & Refining Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995. In Wheat the court stated:

“Whether or not the relation of master and servant existed between the Texas Company and Gossen so as to make the doctrine of respondeat superior applicable, depends upon whether the Texas Company has the right to control Gossen in the details of the work to be performed in the operation of the service station . . ."

It appears that the court first examined the contracts between the parties to determine whether or not Texaco had a contractual right to control Gossen in the details of the work to be performed in the service station and then examined the evidence to determine whether or not Texaco in fact controlled Gossen and his employees in the details of the work performed in the operation of that station.

Joe Cunningham testified that he was 25 years old, a high school graduate, and that he had received some additional educational training while in the job corps. At one time he operated a Texaco service station, but he didn’t have enough money to make a go of it. He lost money and had to turn it back to Texaco. He found other employment and saved a sum of money which he considered sufficient to again go into the filling station business. He applied to Humble Oil Company for a station and found that he was required to attend a training school. He entered the training school and on completion of the course was assigned a station. At first he was the salaried manager of the station. While attending the training course he was given three books, one of which is entitled “Retail Store Operating Procedures Manager Humble Oil & Refining Company.” It contains detailed instructions concerning the methods to be used in operating the filling station. He was also given a book entitled “Retail Store Operating Procedures. Accounting.” The third book with which he was furnished was entitled “Service Station Management.” Mr. Cunningham was required to familiarize himself with the contents of these books while in the training school. Subsequently while he was employed by Humble he was required to operate the station in accordance with the directions contained in these books. He testified that after he served as a manager for several months, the relationship changed, and he became a dealer.

When Mr. Cunningham became a dealer he entered into two contracts with Humble Oil & Refining Company, one entitled “Sales Agreement” and another entitled “Lease to Dealer.” The lease concerned the same filling station which he had previously managed located at the intersection of North Freeway and Little York Road. It was for a period of three years and contained a provision authorizing the lessee to terminate at any time by giving Humble thirty days’ prior written notice and authorized Humble to terminate the lease during the first year by giving lessee thirty days’ prior written notice. The lease provided for a basic rental of 1½ cents on each gallon of gasoline and motor fuel delivered plus $75.00 per month for the use of the “third bay.” The rental was payable on delivery of the gasoline and motor fuel to the lessee’s storage tanks. It included a provision for a rental adjustment in favor of the lessee based on the amount of gasoline sold above a certain “base gallonage”. The lease contained various provisions usual to a real estate rental contract including covenants to make no unlawful or offensive use of the premises, to keep the premises in a clean and orderly condition, to pay the rent on time, to make no assignment of the lease, to make no additions or alterations to the structure of the building without written permission of the lessor, and “to make at Lessee’s expense all repairs to the premises and equipment caused by the neglect, misuse or carelessness of Lessee and Lessee’s employees.” The lessee agreed “to use the premises as a drive-in gasoline station only, and to keep such station open for such purpose 24 hours each day.” It is of some significance that the lease provided:

“No obligation is imposed on the Lessee by the terms of this lease for real estate and personal property taxes and assessments on the premises herein demised, but Lessee agrees to pay personal property taxes on Lessee’s property and all other taxes, license fees, assessments and charges levied against and necessary for the operation of Lessee’s business on said premises, including charges for sewer rent or service, water, telephone, gas and electric current consumed on said premises and any other services that may be furnished said premises.”

The sales agreement was for a period one year and for year-to-year thereafter, subject to the right of either party to terminate the same at the end of the first contract year or any subsequent contract year by giving to the other party thirty days’ advance written notice of termination. Cunningham was required to purchase a certain minimum amount of gasoline and motor oil and Humble was required to sell and deliver to Cunningham gasoline and motor oil up to a stated maximum amount. Cunningham agreed to pay for said products the established dealer price in cash on delivery. Paragraph 8 of the contract provides:

“All orders for products hereunder will be filled with reasonable promptness by Seller; but it is agreed that Seller shall not be liable in damages or otherwise for delay or failure to make deliveries when such delay or failure is due to any cause whatsoever beyond the control of Seller.”

The buyer agreed that “petroleum products received from others will not be sold by Buyer under any trade name, trademark, brand name, label, insignia, symbol, or imprint owned by Seller or used by Seller in its business . . . Buyer shall not mix, commingle, adulterate, or otherwise change the composition of any of the products purchased hereunder and resold by Buyer under said names, marks, labels, insignia, symbols, or imprints.”

In Wheat, supra, the Supreme Court said:

“The contract between the company and Gossen on its face, as evidenced by the written instruments, created the relation of landlord and tenant, and not the relation of master and servant, and we find nothing in the evidence to indicate that the contract, as written, was intended as a subterfuge or sham to conceal the existence of a different relationship. The fact that Gossen paid rent, bought and paid for the merchandise, bore all the expenses of operating the station, employed and controlled the employees in the discharge of their work, stood the losses and appropriated the profits is consistent with the relationship of landlord and tenant, and inconsistent with that of master and servant.”

There is nothing in the lease agreement inconsistent with the relationship of landlord and tenant. It is true that there is a provision requiring the lessee to keep the station open 24 hours each day. The company, as lessor, was interested in selling a maximum amount of its product, and it had a right, as a condition precedent to the leasing of the station, to demand a maximum use of the facility leased.

There is nothing in the sales agreement giving Humble the right to control Cunningham in the details of the work involved in the operation of the service station. Humble has the right to protect its trademarks and good will. The sales agreement does not prohibit Cunningham from selling products other than those manufactured or furnished by Humble, but it does effectively prohibit Cunningham from representing such products as being Humble products.

Next we examine the testimony found in the depositions to determine whether the contracts were intended as a subterfuge or sham to conceal the existence of a different relationship, and to determine whether in fact Humble (now Exxon) controlled Cunningham in the details of the work performed in the operation of the service station. The plaintiff points to the manuals furnished to Cunningham while he attended Humble’s training school, which contained detailed instructions as to the proper manner in which to operate a filling station. Cunningham testified that he was required to follow these instructions while he was a salaried manager of the station, but that he no longer is required to follow these instructions, and that in some instances he does not follow them. Cunningham also testified that while the station is inspected at periodic intervals, and that a report of the result of the inspection is furnished him, he is not required to comply with the recommendations made by Exxon. Exxon sets the price at which it sells its products to the dealers, and recommends a retail price. Cunningham testified that he set his own prices. He also testified that he was the “boss” at the service station and directed the day-to-day operations there. He testified that he bought and paid for the Exxon products which he sold, and that he sold products manufactured by other companies from time to time. He testified that his profit on the sale of gasoline might pay his expenses, but that he had to depend on other activities for his principal income. He owns all the appliances and tools at the station other than the car lift and drinking fountain, and he engages in automobile repair work, tire changing, and operates in a limited way a wrecker service. He testified that he purchased the wrecker and retains all of the fees collected for its use. Exxon had never inspected the wrecker. He pays the expense of all of the activities engaged in at the station and retains all of the profit generated. Exxon does not share in the profits or losses of the station, or bear any of the expenses incurred in its operation. He recognizes that if Exxon does not approve of the manner in which he operates the station his lease might not be extended on its expiration period.

There is no evidence that Exxon had ever undertaken to exercise control of the methods used by Cunningham in the operation of his wrecker business, the activity out of which this injury grew. Exxon did not select the driver of the wrecker, authorize or forbid the use of the leased premises for such purpose or make any suggestions regarding the operation of such business.

The plaintiff relies on Humble Oil & Refining Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995 (1949). It is clearly distinguishable on the facts. There the contract between the parties includes a provision requiring the operator of the station “to make reports and perform other duties in connection with the operation of said station that may be required of him from time to time by Company.” Humble paid part of the operational expense. Title to the oil and gas remained in Humble until delivery to the consumer.

The facts of the instant case establish as a matter of law a landlord-tenant relationship between Cunningham and Exxon and that in the operation of the service station Cunningham was an independent business man under a contractual relationship with Humble. This contractual relationship does not give Humble the right to control the details involved in operating the service station. The evidence establishes that Humble did not in fact control Cunningham’s operations. There is no competent summary judgment evidence to the contrary. The trial court did not err in granting the summary judgment. Texas Company v. Wheat, supra; Frye v. Sinclair Oil & Gas Co., 249 S.W.2d 102 (Tex.Civ.App.-Fort Worth, 1952, writ ref’d); McGee v. Phillips Petroleum Company, 373 S.W.2d 773 (Tex.Civ.App.-El Paso, 1963, writ ref’d n.r.e.); Mid-Continent Freight Lines, Inc. v. Carter Publications, Inc., 336 S.W.2d 885 (Tex.Civ.App.-Fort Worth, 1960, writ ref’d).

Affirmed.


author: EVANS, Justice.

text:
    Warren G. WELLS, Appellant, v. Mary A. WELLS, Appellee.
    No. 16718.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 22, 1976.
    Rehearing Denied Aug. 19, 1976.

      Bernard L. Chanon, Houston; Ducoff & Chanon, Houston, of counsel.
    Logene L. Foster, Ronald R. Pope, Sugar Land, for appellee.
   EVANS, Justice.

Mary A. Wells brought this divorce action against her husband, Warren G. Wells, who filed a cross-action for divorce. Both parties sought relief pending the final decree, and after a two day hearing the trial court entered a temporary order under date of February 26, 1976, which is the subject of this appeal.

This court is without jurisdiction to review those provisions in the temporary order which are not injunctive. Dickson v. Dickson, 516 S.W.2d 28 (Tex.Civ.App.—Austin, 1974, no writ); Bloomfield Royalty Corp. v. Carco Investments, Inc., 435 S.W.2d 178 (Tex.Civ.App.—Houston [14th], 1968, writ ref’d n. r. e.).

The temporary order set aside to each of the parties for their use and benefit during the pendency of this action, certain sums of cash and other property. Mrs. Wells was awarded $1300.00 in cash; her jewelry, clothing and personal effects; a 1973 Ford LTD automobile and the exclusive right to operate her business known as West Park Secretariat, including the TWX machine located at her business office. Mr. Wells was awarded $1300.00 in cash; a typewriter; jewelry; a coin collection; clothing and personal effects in his possession. He was also awarded the community home in Sugar Land, Texas. The order directed that the parties’ respective living expenses should not exceed $1100.00 per month, with an additional $460.00 being authorized for Mrs. Wells since she was not given possession of the home. These provisions concerned the temporary support of the parties and their disposition of cash and property during the pendency of the case; the order in this respect is interlocutory and nonappealable. Archer v. Archer, 407 S.W.2d 529 (Tex.Civ.App.—San Antonio, 1966, no writ); Jones v. Jones, 211 S.W.2d 269, 274 (Tex.Civ.App.—El Paso, 1944, no writ); Dyer v. Dyer, 87 S.W.2d 489, 490 (Tex.Civ.App.—Dallas, 1935, no writ). Neither are the provisions in the temporary order appealable which require the parties to file an inventory and appraisement of their properties and which require Mr. Wells to advise Mrs. Wells’ attorney of developments in a community owned lawsuit brought by Mr. Wells against third parties. These provisions are designed to aid the court in its determination of the parties’ property rights and to assist it in the orderly disposition of the pending controversy. See Janelli v. Bond, 148 Tex. 416, 225 S.W.2d 824 (1950). The temporary order is therefore subject to review only with respect to those provisions which are injunc-tive in nature. Bloomfield Royalty Corp. v. Carco Investments, Inc., supra.

Mr. Wells first contends that the temporary order is void since it does not affirmatively show that the trial court waived the requirement of bond or other security and because the order does not adequately set forth the reasons for granting injunctive relief.

In a divorce case, the trial court is specifically empowered to dispense with the necessity of a bond in connection with an ancillary injunction by one spouse against the other. Rule 693a, Texas Rules of Civil Procedure. It is not essential to the validity of the order that the court’s determination in this respect be evidenced on the face of the order. It is not contended that the trial court abused its discretion in this case by dispensing with the necessity of a bond.

The trial court in a divorce proceeding is authorized by statute to grant temporary relief as it may deem necessary and equitable with respect to the parties and their property. Section 3.58, Texas Family Code. The order in question recited that its provisions were necessary and equitable for the preservation of the parties’ rights. This was sufficient compliance with Rule 683, Texas Rules of Civil Procedure, requiring that every injunctive order set forth the reasons for its issuance. See Transport Company of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 553 (1953).

Mr. Wells next contends that the injunc-tive provisions in the temporary order are not supported by the pleading or the proof and that the trial court abused its discretion in granting the temporary injunctive relief.

The pleadings and the evidence show that each of the parties had their own business activity. Mrs. Wells managed a secretarial service known as West Park Secretariat. Mr. Wells operated a business called Commodity Clearing House from a separate office in the same building as the office of West Park Secretariat. Mr. Wells was not involved in the business of West Park Secretariat, but he did use for his own business purposes a TWX machine in the West Park Secretariat offices. There was considerable testimony regarding the parties’ business practices and concerning their need for the use of the TWX machine. It will suffice to say that their testimony differed as to the right of use and control over the TWX machine and as to whether they could operate their respective businesses from the same office building without interference with one another.

The trial court’s temporary order enjoined each of the parties from contacting the other during the pendency of the action; it prohibited them from going around the home or place of business of the other, and from doing any act in interference with or in harassment of the other’s business or social activities. It enjoined each of them from selling, transferring, assigning, mortgaging, encumbering or in any manner alienating the properties and from spending any cash in their possession other than for their normal living expenses or in the normal course of their business. The order also directed Mr. Wells to remove his business from the building occupied by West Park Secretariat prior to 5:00 P.M. on March 2,1976, and directed that Mrs. Wells should have the right to receive mail addressed to West Park Secretariat or her name, but ordered her to forward to Mr. Wells any mail which she received addressed to him and to refer his telephone calls to a number designated by him. The order also directed that the parties should cooperate in filing their joint income tax return for the year 1975, and should supply each other with information necessary to the completion of the return, but further provided that they might file separate returns if both of them obtained a monetary advantage in doing so.

Both parties sought injunctive relief in the nature of that granted. The injunc-tive provisions in the temporary order are sufficient under the pleadings and generally follow the statements made by the parties’ counsel to the court at the show cause hearing. See Dakan v. Dakan, 53 S.W.2d 682, 684 (Tex.Civ.App.—Eastland 1932, no writ); Ames v. Ames, 64 S.W.2d 1067 (Tex.Civ.App.—Eastland 1933, no writ); Wright v. Wright, 3 Tex. 168 (1881). The injunc-tive provisions have support in the evidence. Mrs. Wells testified that after she and Mr. Wells had separated, he broke into her office and took all of her files; stopped her bank account; stopped the mail addressed to West Park Secretariat, and wrote a damaging letter to her lessor. She testified that Mr. Wells was “in and out of everybody’s office all of the time” at the office of West Park Secretariat. Although Mr. Wells complains that he was deprived of his livelihood by the court’s requirement that he remove his office from the building of West Park Secretariat, his counsel indicated to the court during the hearing that Mr. Wells could maintain his business if he were awarded the home and the typewriter. These provisions in the temporary order tended to maintain the status quo by preventing disruptive contact between the parties and by establishing a procedure for the orderly handling of their joint business activities. This court cannot ascertain that the trial court abused its discretion in granting this temporary relief. See Dickson v. Dickson, supra.

Mr. Wells also complains of a provision in the temporary order which directed the parties to sell their home in Sugar Land, Texas, and provided that if they did not agree upon a sale on or before May 10, 1976, the court would, upon further hearing to be held on May 14, 1976, appoint a receiver to sell or take charge of the home. Upon oral argument, counsel have represented to this court that the parties did not reach an agreement for the sale of their home and that the trial court did not hold a hearing on the matter; the designated date for hearing therefore passed without further action of the trial court. This provision in the temporary order is not subject to review by the court since the matter covered thereby is moot.

The judgment of the trial court is affirmed.


author: REYNOLDS, Justice.

text:
    POPE PHOTO RECORDS, INC., Appellant, v. Roberta E. MALONE, Appellee.
    No. 8682.
    Court of Civil Appeals of Texas, Amarillo.
    July 26, 1976.

      Arthur J. Lamb, Amarillo, for appellant.
    L. Keith Simmer, Hereford, for appellee.
   REYNOLDS, Justice.

A creditor sought to recover the balance of a debt incurred by a deceased husband from the lump sum proceeds of his life insurance received by his surviving widow. The trial court denied recovery. The insurance proceeds became the widow’s separate property not shown to be subject to the debt. Affirmed.

When James Pat Malone died on 20 November 1973, eight insurance policies, the beneficiaries of which he had the contractual right to change, were in force on his life. He had gratuitously named his wife, Roberta E. Malone, as the beneficiary of each policy. One of them was issued prior to their marriage and none of its premiums was paid with community funds. The remaining seven policies were issued during the marriage and Mrs. Malone was named the beneficiary at the time each was issued. Six of the seven policies were issued prior to 1 January 1970 and all premiums on them were paid monthly or annually with community funds. The remaining policy was issued on 1 May 1971 in the face amount of $25,000 as an incident to Malone’s employment on that date as president of the First National Bank in Hereford, Texas. The bank paid the monthly premium after deducting $15 per month from Malone’s salary to apply toward the premium. The proceeds from the eight policies were paid to Mrs. Malone in lump sums aggregating $83,458.27.

Mrs. Malone qualified as the independent executrix of Malone’s estate. She filed an inventory and appraisement omitting the insurance proceeds and reflecting that the community debts and claims against the estate exceeded the assets.

During his lifetime on 27 March 1970, James Pat Malone executed, and thereafter made two payments on, his interest bearing promissory note in the principle sum of $9,000 payable on demand to the order of National Litho & Printing Company. The note was transferred and assigned to Pope Photo Records, Inc. Following Malone’s death, the balance due on the note was reduced to a judgment against, and a claim was made on, his estate. One payment was made on the debt from the estate assets and, after the assets were exhausted without payment of the debt in full, Pope Photo Records, Inc., proceeded against Roberta E. Malone individually. The suit, from which this appeal stems, sought the recovery of $4,416.73 as the principal due on the debt, together with interest and reasonable attorney’s fees.

There was a bench trial. In addition to the development of the foregoing facts, there was testimony by the president of National Litho & Printing Company and sole owner of the stock of Pope Photo Records, Inc., that he made a loan to Malone in order for Malone to pay a bank note placed for collection, and that he had never talked with Mrs. Malone about the existence of the debt. After Malone’s death, he referred the note to his attorney to get in touch with Mrs. Malone, who testified that she did not know about the debt until after her husband’s death. Mrs. Malone conceded that the community estate was insolvent at the date of her husband’s death, but she did not know when it first became insolvent. There was and is no contention that the estate was insolvent on 27 March 1970, the date of the debt, or on 1 May 1971, the date of the latest insurance policy naming Mrs. Malone as the beneficiary. At the conclusion of the trial, the court, later making and filing findings of fact and conclusions of law, rendered a take-nothing judgment from which Pope Photo Records, Inc., has appealed.

Pope initially contends the trial court erred in legally concluding that the insurance proceeds received by Mrs. Malone are not subject to its debt. It should be observed that presently in Texas when a husband insures his life with community funds, the right to receive the future insurance proceeds is community property in the nature of a chose in action maturing at the death of the husband. Consequently, the matured proceeds are community in character, “except where the named beneficiary is in fact surviving, in which case a gift of the policy rights to such beneficiary is presumed to have been intended and completed by the death of the insured.” Brown v. Lee, 371 S.W.2d 694, 969 (Tex.1963). The corollary is that by naming the wife the beneficiary, the husband manifests the intent to make a gift to her. Huie, Community Property Laws as Applied to Life Insurance, 17 Tex.L.R. 121, 123-24 (1939). Long standing is the coexisting rule that the insurance proceeds she receives at her husband’s death are her separate property not subject to the husband’s debts unless the proceeds have been assigned as collateral security therefor. San Jacinto Bldg., Inc. v. Brown, 79 S.W.2d 164, 166 (Tex.Civ.App., Beaumont 1935, writ ref’d).

Prom these principles Pope argues that because the gratuitous gift of the insurance proceeds to Mrs. Malone was not completed until Malone’s death when the community estate was insufficient to pay the existing debts, the intended gift was voided by § 24.03 of the Texas Business and Commerce Code (1968). Because that statute, as material here, does void a gratuitous transfer of property as to an existing creditor unless at the time of the transfer the debtor has enough property in this state subject to execution to pay all of his existing debts, the argumentative inference is that the insurance proceeds retained their community character, making them liable for the debt.

After an in-depth consideration, the very same argument, made under circumstances strikingly similar to those we review and also in reliance on the “gift . is . completed by the death of the insured” language in Brown v. Lee, supra, was rejected in Parker Square State Bank v. Huttash, 484 S.W.2d 429 (Tex.Civ.App., Fort Worth 1972, writ ref’d n.r.e.). The holding indispensable to the rejection was that the controlling date of the transfer meant in V.T.C.A., Bus. & C. § 24.03, was the date the beneficiary was designated. In context, the holding is not, as Pope asserts that it is, in direct conflict with the Brown v. Lee, supra, language that the gift is “completed by the death of the insured.” At least, the Supreme Court, after reviewing the Huttash opinion quoting that language from Brown v. Lee, supra, in connection with its consideration of the application for writ of error, did not reverse Huttash as it was authorized to do by Rule 483, Texas Rules of Civil Procedure, if the holding were in conflict with the Brown v. Lee, supra, decision. See, e. g., Calvert, Application for Writ of Error, Appellate Procedure in Texas, § 22.9. Thus, applied here in the absence of any contention that the Malones’ community estate was insolvent on or before the last date Mrs. Malone was designated a beneficiary, the Huttash holding negates the applicability of V.T.C.A., Bus. & C. § 24.03, to void the gift to Mrs. Malone.

Next, Pope seeks to neutralize the trial court’s factual finding that Malone became insolvent on or about 1 November 1973, but presents no point of error that insolvency on an earlier date was established conclusively or as a matter of law. The neutralization is sought as a predicate for an attack on the court’s legal conclusion that no portion of the insurance proceeds is subject to Pope’s debt even though a portion of the premiums was paid when Malone was insolvent. The two-prong challenge is viable only if Texas law permits the claimed right of recovery from the proportional part of the proceeds generated by premiums paid from the community when it was insolvent. The challenge is unavailing because it has been settled, again under circumstances similar to those in the case at bar, that Texas law does not sanction such recovery absent fraud in the formation of the insurance contract which is not alleged here. San Jacinto Bldg., Inc. v. Brown, supra, at 166-67. The only Texas case which Pope cites for its proposition is Red River Nat. Bank v. De Berry, 47 Tex.Civ.App. 96, 105 S.W. 998 (1907, no writ), where that holding is clearly based on a specifically pleaded Arkansas statute exempting from the claims of the husband’s creditors only the insurance purchased by premiums not exceeding a set amount annually. The opinion in San Jacinto Bldg., Inc. v. Brown, supra, in discussing De Berry and stating that it actually is authority for the conclusion reached in San Jacinto Bldg., Inc. v. Brown, supra, that Texas law does not allow the husband’s creditors to recover from the widow’s insurance proceeds attributable to premiums paid during insolvency, points out that there is no like statute in Texas limiting or regulating in any manner the amount one may expend on premiums or that would render such payments transfers of property in fraud of creditors. 79 S.W.2d 166.

Finally, Pope assigns error to the denial of judgment on its theory that its debt is a jointly incurred community debt to which Mrs. Malone’s separate property is subject. The § 5.61(a) provision of the Texas Family Code (1975) is that a spouse’s separate property is not subject to liabilities of the other spouse unless both spouses are liable by other rules of law. To escape the efficacy of the proviso, Pope proposes the application of the rule of Cockerham v. Cockerham, 527 S.W.2d 162 (Tex.1975).

In Cockerham, a divorce case, the court subjected the husband’s separate property to the debts incurred by the wife in her operation of her business during the marriage when the court found that the husband had impliedly, and to some extent expressly, consented to the establishment of the debts as joint liabilities. There, among other circumstances, the husband advanced the wife the necessary capital for the business inventory, the wife wrote checks on the husband’s bank account to pay for merchandise, at least on one occasion the husband wrote a check to pay the operational expenses, and the husband borrowed money to pay some of the business debts which he recognized as his obligations.

But the facts of Cockerham are readily distinguishable from the facts before us, and the Supreme Court made it clear in Cockerham that an examination of the totality of the circumstances giving rise to the debt is necessary to determine joint liability. Here, Malone incurred the debt at issue to pay his prior bank note. The use made of the money represented by the bank note is merely speculated. It is undisputed that Mrs. Malone did not know of the debt until after her husband’s death more than three and one-half years later. The totality of these circumstances, without more, is insufficient to remove the insulation installed by V.T.C.A., Family Code § 5.61(a), to protect Mrs. Malone’s separate property from the debt incurred by her husband.

Each facet of Pope’s points of error has been considered whether specifically mentioned or not. None of the points presents reversible error.

The judgment is affirmed.


author: SHANNON, Justice.

text:
    Luther JONES, Appellant, v. The Honorable Dolph BRISCOE, Governor of Texas, et al., Appellees.
    No. 12457.
    Court of Civil Appeals of Texas, Austin.
    July 28, 1976.
    Luther Jones, El Paso, and Matt Garcia, Jr., San Antonio, for appellant.
    John L. Hill, Atty. Gen. of Texas, David M. Kendall, Jr., First Asst. Atty. Gen., Austin, for appellees.
   SHANNON, Justice.

This is an appeal from the judgment of the district court of Travis County dismissing appellant’s suit for permanent injunction. We will affirm that judgment.

Appellant is Luther Jones, a member of the House of Representatives. Appellees are Dolph Briscoe, Governor of Texas; John Poerner, Director of the Governor’s Office of Education Resources; and Robert E. Johnson, Executive Director, Texas Legislative Council. By his suit appellant sought to enjoin appellees from entering into an Interagency Cooperation Contract allegedly pursuant to the mandate of Tex.Laws 1975, ch. 334, § 10, at 898.

Section 10 provides:

“Sec. 10. (a) The governor shall conduct a study to determine methods of allocating state funds to school districts which will insure that each student of this state has access to programs and services that are appropriate to his educational needs regardless of geographical differences and varying local economic factors. The Lieutenant Governor, the Speaker of the House, and the Chairmen of the following committees: the Senate Finance Committee, the House Ways and Means Committee, the Senate Education Committee, and the House Public Education Committee, shall advise and consult on all aspects of the study.
“(b) The study shall include a determination of each school district’s ability to support public education based on the value of taxable property in the district. The determination shall be made in accordance with the provisions of relevant Acts of the 64th Legislature, Regular Session. All records and property of the Legislative Property Tax Committee are hereby transferred to the governor to assist him in carrying out the study.
“(c) In conducting the study, the governor may require state agencies and school districts to submit any information deemed relevant to the purposes of the study. The Legislative Council and the Legislative Budget Board and all other state agencies shall cooperate with the governor’s office in the conduct of the study.
“(e) There is hereby appropriated to the governor from the General Revenue Fund for the biennium ending August 31, 1977, the sum of $5,000,000 to carry out the provisions of this section.”

Paragraph II of the Interagency Contract calls for the organization of a Property Tax Revision Committee to prepare a proposed revision of the property tax laws of Texas. By his suit appellant claimed that Section 10 does not contemplate the expenditure of money to prepare a proposed revision of the property tax laws, and being of that view, appellant claimed that the expenditure of such monies was a violation of Tex.Const, art. VIII, § 6. Section 6 provides in part that “No money shall be drawn from the Treasury but in pursuance of specific appropriations made by law . .

One basis for the judgment of dismissal was that appellant’s suit was one against the State and that appellant did not allege that he obtained consent to sue the State.

The acts of officials which are not authorized are not acts of the State, and an action against those officials by one whose rights have been violated is not a suit against the State within the rule of immunity of the State from suit. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945).

To the contrary, where the purpose of the suit against State officials is to control action of the State or subject it to liability, the suit is against the State and cannot be maintained without the consent of the Legislature. Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151 (1960); W. D. Haden Company v. Dodgen, 158 Tex. 74, 308 S.W.2d 838 (1958); Herring v. Houston National Exchange Bank, 113 Tex. 264, 253 S.W. 813 (1923).

We are of the opinion that the judgment of dismissal was proper because appellant’s suit was one to control the action of the State and was therefore barred by the doctrine of sovereign immunity.

Section 10 charged the Governor to conduct a study to determine the methods of allocating State funds to school districts which would insure that each student has access to an appropriate education regardless of geographical and economic differences. Section 10 also required that the Governor’s study include a determination of the ability of each school district to support public education based on the value of taxable property in the district.

Section 10 does not detail how the Governor is to make the required study, but instead the formulation of the study is left to the Governor’s discretion. In an effort to carry out the mandate of Section 10, the Governor entered into the contract with appellee Legislative Council for the Council to prepare a proposed revision of Texas property tax laws. We are of the view that the Governor’s decision to enter into the contract was an act authorized by Section 10(b).

The Governor’s choice of the manner of implementing the study, pursuant to Section 10, is the act and decision of the State; and however perspicacious the Governor’s decision may, or may not be, a suit to test its validity is a suit against the State which cannot be maintained without legislative permission. W. D. Haden Company v. Dodgen, supra.

The judgment is affirmed.

Affirmed.


text:
    Mrs. Paul M. (Jewell) HARGIS, Appellant, v. RADIO CORPORATION OF AMERICA, ELECTRONIC COMPONENTS, Appellee.
    No. 12462.
    Court of Civil Appeals of Texas, Austin.
    July 28, 1976.

      Samuel D. McDaniel, Austin, for appellant.
    Don L. Baker, Austin, for appellee.
   SHANNON, Justice.

Appellee, Radio Corporation of America, sued appellant, Jewell Hargis, for $10,000 based upon appellant’s guaranty agreement. After trial to the court, the district court of Travis County entered judgment for appellee for $11,825. Included in that sum was $1,825 which represented prejudgment interest.

For a number of years appellee had sold merchandise on open account to Hargis-Austin, Inc., a Texas corporation doing business in Austin. Appellee pleaded that appellant signed the personal guaranty in 1963. By the terms of the guaranty, appellant guaranteed the accounts of the corporation in an amount not exceeding $10,000.

Appellee filed suit against the corporation in the district court of Travis County, and in February, 1975, appellee obtained a judgment against the corporation for $26,-133.89.

Appellant’s chief defense to the suit on the guaranty was that the guaranty was not supported by consideration.

Appellant’s guaranty was in the form of a letter addressed to appellee and signed by appellant. That letter reads as follows:

“Date November 6. 1963
Radio Corporation of America
Gentlemen:
I wish to assist Hargis-Austin, Inc., Austin, Texas, (hereinafter referred to as ‘Purchaser’), in perfecting arrangements whereby Radio Corporation of America and its subsidiaries (hereinafter referred to as ‘your company’) may from time to time sell and deliver merchandise to and render services for Purchaser on open, note or acceptance accounts.
To this end I hereby guarantee such accounts of the Purchaser with your company in an amount not to exceed Ten Thousand Dollars ($10,000). to cover purchases heretofore or hereafter made by the Purchaser from your company.
This guaranty is hereby declared to be a continuing one and shall remain in effect until your company’s Credit Department at Harrison. New Jersey shall have received written notice from me of its withdrawal and for twenty-four hours thereafter in order to enable you to communicate its withdrawal to your various departments concerned. The guaranty, after withdrawal, shall of course remain in effect until the full account covered by the guaranty shall have been paid.
I hereby agree that my obligation under this guaranty shall be in no wise affected by any extension of time for the payment of any account at any time owing by the Purchaser to your company, and that it shall not be necessary to notify me of any such extension or furnish me with copies of invoices, orders or statements of accounts.
The obligation I hereby undertake shall be original and primary and it shall not be necessary for your company to have judgment or execution against the Purchaser as a condition to the enforcement of my liability under this guaranty. Notice of acceptance of this guaranty is hereby waived. The guaranty shall become effective from its date and shall be construed to operate in favor of your company, its successors and assigns.
Very truly yours,
/s/ Mrs. Paul M. Hargis ”

Appellant seeks to overturn the judgment by four points of error. Points of error one and two are that there was no evidence of consideration for the guaranty. We will overrule those points for the following reasons.

Like any contract, a guaranty agreement is not binding without consideration. Simmang v. Farnsworth, 24 S.W. 541 (Tex.Civ.App.1893, no writ). If the promise of the guarantor is made contemporaneous to the promise of the primary debtor, the consideration which supports the primary debtor’s promise also supports that of the guarantor. To the contrary, if the guaranty is made subsequent to the original transaction, the guarantor’s promise must be supported by new consideration. Simpson, Suretyship, § 26 (1950).

The existence of a written contract presumes consideration for its execution. Wright v. Robert & St. John Motor Co., 122 Tex. 278, 58 S.W.2d 67 (1933). The party alleging want of consideration has the burden of proof. 18 Texas L.Rev. 83 (1939). Once evidence to the contrary of the presumption is introduced, the presumption disappears. Sudduth v. Commonwealth County Mutual Ins. Co.,, 454 S.W.2d 196 (Tex.1970).

Consideration for a guaranty agreement usually consists of either the sufferance of a detriment by the creditor or a benefit conferred by the creditor on the primary debtor. McWhorter v. First State Bank of Wylie, 11 S.W.2d 808 (Tex.Civ.App. 1928, writ ref’d).

We are of the view that the guaranty was supported by consideration in that appellee conferred a benefit on Hargis-Aus-tin, Inc. Appellee contends correctly that it is not necessary that consideration for the guaranty pass to the guarantor, appellant Hargis, for it is sufficient consideration if the primary debtor receives some benefit. Bonner Oil Co. v. Gaines, 108 Tex. 232, 191 S.W. 552 (1917), Stearns & Elder, The Law of Suretyship § 2.7 (1951).

Appellant argues that Hargis-Austin did not benefit from the $10,000 personal guaranty because at the time it was given, appellee was already extending credit for $55,000. We find appellant’s argument unacceptable for two reasons. First, each delivery of merchandise after the guaranty agreement was an extension of new credit. Even if the corporation had paid off past debts simultaneously with each new delivery and the total outstanding obligation had not increased, there was new credit extended on each new item, and as a result, the corporation benefited from each delivery. Secondly, appellant testified that after the guaranty was signed, the total amount of credit extended to the corporation had increased from about $55,000 to about $70,-000.

Appellant’s points of error three and four complain of appellee’s recovery of $1,825 in prejudgment interest. As we understand, the district court entered judgment for interest on the guaranty beginning from January 1, 1973. We will reverse that part of the judgment for the following reason.

The guarantor is generally liable for interest on the debt from the time of default by the principal debtor. Interest is justified because the guarantor puts himself in the place of the primary debtor and agrees to perform all that the primary debtor is liable for. Stearns & Elder, The Law of Suretyship § 4.19 (1951).

In general, if the amount of the guaranty is liquidated and there is no predetermined time for maturity of the debt, interest is due from the date of demand on the primary debtor. If no demand is made on the primary debtor, the filing of suit against the guarantor operates as a demand and fixes the date from which interest will be figured. Stearns & Elder, The Law of Suretyship § 4.19 (1951), Walton v. Washington County Hospital Association, 178 Md. 446, 13 A.2d 627 (1940).

In the case at bar, the guaranty agreement was for a liquidated sum and the agreement did not provide when the guarantor’s liability arose. The statement of facts shows no demand for payment on the primary debtor other than the fact that appellee filed suit against the primary debt- or on December 10, 1974. We are of the opinion that appellee’s filing the suit on December 10, 1974, operated as a demand on the primary debtor and that interest on the guaranty should be calculated from that date.

The judgment for appellee for $10,000 is affirmed. That part of the judgment awarding appellee $1,825 for interest is reversed and is remanded to the district court for entry of judgment for interest calculated from December 10, 1974.

Affirmed in Part and Reversed and Remanded in Part with Instructions.


author: PER CURIAM.

text:
    Milton H. COUSINS, Appellant, v. Helen M. BROWN et al., Appellees.
    No. 16782.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 29, 1976.
    No brief for appellant.
    No brief for appellee.
   PER CURIAM.

Final judgment was rendered in this cause on February 20, 1976. The motion for new trial was heard and overruled by order rendered and entered on April 2,1976. This order contained a notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas. A cost bond duly approved was filed on March 22, 1976, and a supersedeas bond was filed on May 20,1976. The appeal was duly perfected. Rule 363, Texas Rules of Civil Procedure.

The Rules of Civil Procedure require that the transcript and statement of facts be filed in this court within sixty days from the date the motion for new trial was overruled, in this case on or before June 1,1976. Rule 386, T.R.C.P. No transcript or statement of facts has been filed in this court, nor has appellant filed a motion for enlargement of time within which to do so. A transcript of the proceedings in the trial court was tendered on June 25, 1976. Motions for extensions of time must be filed within 15 days of the last date for timely filing provided by the Rules. This court can no longer entertain a motion for extension of time within which to file the statement of facts or the transcript. Rule 21c, T.R.C.P.

Appellees, Helen M. Brown, Earl D. Brown, and Daryl S. Brown, have filed in this court a motion for affirmance on certificate. The motion fully complies with the requirements of Rule 387, T.R.C.P. The motion was filed within one year after the right to file the transcript expired. The appellees are entitled to have judgment affirmed against the sureties on the bonds as well as against the appellant.

The judgment of the trial court is affirmed and judgment is here rendered against Lawyers Surety Corporation in the amount of $1,694.25, plus interest at the legal rate until paid. Judgment is also rendered against the defendant, Milton H. Cousins, and Lawyers Surety Corporation as surety, for the costs of court.


text:
    ANHEUSER-BUSCH, INC., Relator, v. The Honorable Jack SMITH, Judge of the 189th District Court, Harris County, Texas, et al., Respondents.
    No. 16751.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 29, 1976.

      Vinson, Elkins, Searls, Connally & Smith, Gerald P. Coley, Houston, for appellant.
    Victor F. Branch, Houston, for respondent James Slusser.
   COLEMAN, Chief Justice.

This is an original action for mandamus in which relator seeks to have the District Court set aside an order granting a mistrial in a suit for damages tried to a jury, and to require the court to enter a judgment on the incomplete verdict returned by the jury. The writ of mandamus is granted.

During the course of their deliberations the jury in Cause No. 906,232, entitled James Slusser v. Anheuser-Busch, Inc., et al., made known to the court that it had answered all issues submitted with the exception of the issue on damages, and that it was hopelessly deadlocked on that issue. The trial court then had the jury brought into the courtroom and inquired of the foreperson whether or not they had been able to reach a verdict. The foreperson replied that they had not been able to reach a verdict on one issue. The court then stated that he understood that “it is one issue, but you haven’t been able to reach a verdict He then stated that the plaintiff’s motion for a mistrial would be granted. The attorney for relator, defendant, in the trial court, then urged that the jury be polled and that the court accept the partial verdict. The attorney for the respondent, plaintiff in the trial court, stated to the court that since the court had granted the motion for mistrial any further proceeding would be moot. The court stated that he would entertain the relator’s motion. In response to the motion the court then instructed the bailiff to return the jury to the jury room and instructed the jury that each juror who had voted for the answer shown on each special issue to sign that special issue. He further instructed them not to sign the issue on which no agreement had been reached. The jury retired, followed the instructions of the court, and returned to the court room and delivered the charge to the court with signatures on the back of each special issue which had been answered. The court thereupon polled the jury and verified the fact that all issues had been answered as indicated in the answer blank on the issue with the exception of Special Issue No. 11 which was not answered. The plaintiff, Slusser, again made a motion for mistrial, and relator moved for a judgment on the verdict. The court then stated that he would deny the motion to accept the verdict and grant the motion for a mistrial.

The court entered a written order denying the motion for judgment “for the reason that the court could not enter judgment on the partial or incomplete verdict of the jury,” and ordering a mistrial “by reason of the failure of the jury to return a complete verdict.” It must be noted that during the colloquy between the court and the attorneys prior to the entry of the written order, the court stated: “I believe the law is that if they can’t reach a total verdict that I have to grant a mistrial . . . ”

The courts of civil appeals “may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a case . . . ” Article 1824, V.A.C.S.

It is not error for a trial court to receive and order filed a partial verdict which will sustain a judgment. In order to support the entry of a judgment based upon a partial verdict the answers made by the jury must be of such a nature that the winning party was entitled to judgment no matter what the jury may have said in response to the unanswered issues. Blanton v. E. & L. Transport Co., 146 Tex. 377, 207 S.W.2d 368 (1948); Stalder v. Bowen, 373 S.W.2d 824 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.). There is a division of authority as to whether a court of civil appeals by mandamus can require a trial court to receive such a verdict and render judgment thereon.

In Stalder v. Bowen, supra, the court stated:

“. . . While Rule 290, T.R.C.P., refers to ‘the whole or all the issues submitted’, it is now well established that the trial court has not only the right, but the duty to receive a partial verdict which will sustain a judgment. In order to support the entry of a judgment based upon a partial verdict the answers made by the jury must be of such a nature that the winning party was entitled to judgment no matter what the jury may have said in response to the unanswered issues . . ."

In Security State Bank & Trust v. Craighead, 440 S.W.2d 701 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.), the court cited Stalder v. Bowen, supra, as authority for the rule that the trial court “not only has the right but the duty to receive a partial verdict which will sustain a judgment.” The court of civil appeals affirmed a judgment entered by the trial court on a verdict, which was incomplete, in that the jury was unable to agree upon answers to two damage issues submitted to them in Templeton v. Rogers, 450 S.W.2d 900 (Tex.Civ.App.—Beaumont 1970, writ dism’d). In reaching its conclusion the court stated:

“The rule is clear that a trial court not only has the right, but the duty to accept a partial verdict which will sustain a judgment.”

The rule that an appellate court will not review by mandamus an action of the trial court granting a new trial while it still has jurisdiction of the cause was reaffirmed by the Supreme Court of Texas in Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330 (1961). The court noted, however, that appellate courts have directed trial judges to set aside orders granting motions for new trial where (1) the trial court’s order was wholly void; and (2) where the trial court has granted a new trial specifying in the written order the sole ground that the jury’s answers to special issues were conflicting. The court noted that in the instant case the trial court did not specify on what grounds he was granting the motion for new trial. The court also noticed Rule 300, Texas Rules of Civil Procedure, which provides that where a special verdict is rendered the court shall render judgment thereon unless set aside or a new trial is granted or judgment is rendered notwithstanding the verdict or jury findings under the rules. The court then held:

“Since the motion for new trial was granted by the trial court it was not required by the rules to render judgment in the cause, and the Court of Civil Appeals is without authority to so order.”

In L. B. Foster Steel Co. v. Hon. Ben Moorhead, 382 S.W.2d 280 (Tex.Civ.App.—Houston 1964), an original proceeding seeking mandamus to require a district judge to enter judgment on a jury verdict, this court noted that it would have been proper for the court to have entered judgment on the verdict which the court received and ordered filed despite the fact that the damage issues were not answered. The court stated that the damage issues became immaterial because of the jury’s answers to the other issues submitted. The court noticed that the motion for mistrial contained several grounds and stated:

“In such order the court does not state upon what ground the mistrial was decreed. It is clear that the court in considering the matter exercised judicial discretion and based his judgment upon one or more of the grounds set out in the motion for mistrial .
“In the case at bar the motion for mistrial was granted during termtime and the order did not specify the grounds. As applicable to this case, we adopt the following language of the Beaumont Court of Civil Appeals in Meyer v. State, 372 S.W.2d 764: ‘We see no legal distinction in the application of the rule of the Johnson case, supra, between a mistrial and a new trial . . ’ ”

This court then held that it lacked authority to order the issuance of the writ of mandamus prayed for by relators. We consider that this case applied the rule that the court of civil appeals cannot control the trial court in the exercise of its discretionary powers.

This court again refused to order a trial judge to enter a judgment on a jury verdict in Jones v. Smith, 470 S.W.2d 305 (Tex.Civ.App.—Houston [1st Dist.] 1971). The cause was tried to a jury and a verdict was reached on all issues submitted. The trial judge on his own motion entered an order declaring a mistrial, reciting no ground therefor. This court determined that the effect of the trial court’s order was to set aside the jury verdict as authorized by Rule 300, T.R.C.P., and, therefore, the trial court was not required to render judgment.

Rule 290, T.R.C.P., defines a verdict as the written declaration by a jury of its decision, “comprehending the whole or all the issues submitted to the jury.” Rule 291, T.R.C.P., provides that no special form of verdict is required, and the judgment shall not be arrested or reversed for mere want of form therein if there has been substantial compliance with the requirements of the law in rendering the verdict. Rule 292, T.R.C.P., provides that a verdict may be rendered in any cause by the concurrence “as to each and all answers made” of the same ten members of the original jury of twelve, and that if less than the original twelve render a verdict, the verdict must be signed by each juror concurring therein. The wording of Rule 292, supra, does not require that an answer be made to all issues submitted before a “verdict” can be returned into court. While Rule 290, supra, by its terms makes such a requirement, it has been construed by the courts to require that only material issues be answered. Stalder v. Bowen, supra.

In the instant case the jury returned into court a legally sufficient verdict; it was signed in substantial compliance with the rules of procedure. The answers made by the jury to the issues submitted required a judgment for the defendant no matter what answer might have been made to the issues on damages. The trial court, however, refused to officially receive the ver-diet and order it filed because it was incomplete.

The trial court exercises judicial discretion in examining the verdict of a jury to determine whether or not it is in proper form and whether the answers made are responsive to the issues. Here the trial court found that the verdict was not properly signed and directed the jury to return to the jury room and sign the verdict. Once he has examined the verdict and found it in proper order the action of the trial judge in accepting the verdict and ordering it filed is ministerial. Mandamus will lie to require the trial judge to accept and file a verdict for the same reason that it will issue to require the trial judge to enter a judgment upon the verdict where, as a matter of law, only one judgment can be entered.

In Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956), the court held that the rule denying mandamus with respect to matters of a discretionary character is not without limitation, and the writ may issue in a proper ease to correct a clear abuse of discretion. In discussing Rule 174(b), T.R. C.P., authorizing the trial court to order a separate trial of claims or separate issues, stated that the use of the permissive word “may” imports the exercise of discretions in such matters. The court then stated:

“. . . When all of the facts and circumstances of the case unquestionably require a separate trial to prevent manifest injustice, and there is no fact or circumstance supporting or tending to support a contrary conclusion, and the legal rights of the parties will not be prejudiced thereby, there is no room for the exercise of discretion. The rule then is peremptory in operation and imposes upon the court a duty to order a separate trial. While the refusal to grant a separate trial under such circumstances is usually termed a clear abuse of discretion, it is nevertheless a violation of a plain legal duty . . . ”

In Johnson v. Court of Civil Appeals, supra, the court stated that the Supreme Court had the power to correct abuses of discretion in certain lower courts where there is no adequate remedy by appeal. The courts of civil appeals have no such power. The court further stated that the courts of civil appeals may only issue writs necessary to enforce their jurisdiction or to compel a district or county court to proceed to trial and judgment in a cause.

Rule 300, T.R.C.P., states that where a special verdict is “rendered” the court “shall” render judgment thereon unless set aside or a new trial is granted or judgment is rendered notwithstanding the verdict or jury finding. This court is authorized to issue the writ of mandamus to compel a district court to proceed to trial and judgment in a cause. Johnson v. Court of Civil Appeals, supra. Necessarily this court has the authority to order the trial court to accept and order filed a proper verdict after it has been returned by the jury to the court.

It appears to this court that in exercising the power granted to the courts of civil appeals by Article 1824, Texas Revised Civil Statutes, to require a trial court to proceed to trial and judgment in a cause, the court exercises much the same authority as does the Supreme Court when exercising jurisdiction under Article 1733, T.R.C.S.

In this case the trial court did not intend to set aside the verdict of the jury and order a new trial. This is clear from the order entered and the pleading filed in this court by the trial judge. Judge Smith’s response to the petition for mandamus stated that based upon the cases submitted to him by counsel he determined that it was his duty to grant a mistrial. He further stated that he felt the law requiring such action did not make “good sense” where under the jury’s response to the liability issues the plaintiff could not make a recovery regardless of what figure was found in answer to the damage issues.

It is our opinion that the trial court should set aside his order of mistrial, order the verdict of the jury filed, and enter the judgment required by the facts as found by the jury. Both before and after entry of judgment the trial court would be authorized to receive and hear the motions to set aside the jury verdict, motions for new trial, and such other motions as may be authorized by the Rules of Civil Procedure. Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296 (1926).

We are certain that the trial judge will proceed in accordance with the law as we have set it out herein without a writ of mandamus. But in the event he should fail to so proceed the clerk will issue the necessary writ requiring this action.