text:
    Albert F. MOKRY, Sr., Appellant, v. UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT DALLAS, Texas, et al., Appellees.
    No. 18686.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 16, 1975.
    Rehearing Denied Nov. 13, 1975.
    Robert J. Shoemaker, McKool, Shoemaker & Vassallo, Dallas, for appellant.
    Jack Sparks, Asst. Atty. Gen., Austin, for appellees.
   CLAUDE WILLIAMS, Chief Justice.

Albert F. Mokry, Sr., brought this suit under the Texas Tort Claims Act, Tex.Rev. Civ.Stat.Ann. art. 6252-19, § 3 (Vernon Supp.1973) against the University of Texas Health Science Center at Dallas, Texas, the Board of Regents of the University of Texas System and the State of Texas to recover damages for mental anguish, headaches and nervousness resulting from the negligent loss of his left eyeball after it had been surgically removed and while it was being prepared for a laboratory examination at the University of Texas Health Science Center. Defendants filed a plea in abatement and special exceptions in which they asserted that plaintiff Mokry had failed to state a cause of action that would bring him within the waiver of governmental immunity under the Texas Tort Claims Act. The court sustained the plea in abatement and special exceptions and, upon plaintiff’s refusal to amend, dismissed the cause. From that judgment plaintiff appeals. We reverse and remand.

Mokry’s points of error raise two principal contentions: (1) That the trial court erred in finding that plaintiff had failed to state a cause of action within the waiver of governmental immunity created by the Texas Tort Claims Act and (2) that the trial court erred in ruling that the State of Texas was not required to answer Mokry’s written interrogatories.

Resolution of the first complaint requires construction of the allegations contained in plaintiff’s trial pleadings. In reviewing the court’s action in sustaining the plea in abatement and special exceptions we accept as true the allegations of the petition. Clark v. State, 324 S.W.2d 75, 79 (Tex.Civ.App. — San Antonio 1959), affirmed, State v. Clark, 336 S.W.2d 612, 619 (1960); Newton v. Dallas Morning News, 376 S.W.2d 396 (Tex.Civ.App. — Dallas 1964, no writ); Homeright Co. v. Exchange Warehouses, Inc., 526 S.W.2d 241, 243 (Tex. Civ.App. — Tyler 1975).

Plaintiff Mokry, in his first amended original petition, alleged that his left eye was surgically removed by his private physician on February 6, 1973, and was then delivered to the University of Texas Health Science Center at Dallas for pathological examination to determine whether the eye was cancerous. While the eyeball was in the custody of an employee of the Health Science Center and while that employee was engaged in the course and scope of her employment, it came out of the container in which it was being washed and was lost down the drain. A number of acts of negligence by defendants’ agents, servants and employees were alleged to be the proximate cause of the loss of plaintiffs eyeball and of his resulting mental pain and anguish, nervousness and headaches which damaged him in the amount of $60,000.

Defendants-appellees contend that the allegations in Mokry’s petition are insufficient to impose liability on the state for the following reasons: (1) The cause of action alleged does not come within the waiver of governmental immunity created by the Texas Tort Claims Act and (2) plaintiff’s petition alleges only damages for mental suffering which he cannot recover in the absence of physical harm.

We cannot agree with the arguments advanced by the state. Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3 (Vernon Supp.1973) provides:

Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible proper ty, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages. Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death and to $10,000 for any single occurrence for injury to or destruction of property. [Emphasis added.]

The Act provides further in § 13: “The provisions of this Act shall be liberally construed to achieve the purposes hereof.”

Plaintiff alleged that the agents and employees of the defendants were negligent in failing to have a screen or strainer covering the drain opening in the sink, in not covering the mouth of the container in which the eye had been deposited so as to prevent it from coming out of the container, in allowing the gauze cover of the container to come off and in allowing the container to tip or fall over causing the eye to come out and be lost down the drain. Plaintiff further alleges that the failure to use the usual glass container to wash the eye and to remove or to hold the container while the water was drained from the sink constituted negligence which proximately caused the loss of the eye and the resulting damages to plaintiff. We hold that these pleadings adequately allege a cause of action for damages from negligent acts or omissions of an employee of the state, acting within the scope of his employment, arising from some condition or use of tangible property under circumstances which the state, if it were a private person, would be liable to the plaintiff. At the time the court dismissed the action the parties had stipulated that the plumbing fixtures, including the sink, drain and drainpipes involved in the loss, were fixtures or parts of tangible personal or real property owned by the state and its agencies. It was in conjunction with the use of those items of tangible property that this cause of action arose.

Defendants-appellees argue that plaintiff’s petition does not allege that he sustained damages from “personal injuries” as required by the Act quoted above. They contend that since Mokry did not allege that he suffered actual physical harm he cannot recover damages for mental suffering alone.

We note that the Legislature used the terms “personal injury” and “bodily injury” in the above quoted portions of the Texas Tort Claims Act. The term “bodily injury” is defined in Tex.Penal Code Ann. § 1.07(a)(7) (Vernon 1974) as follows: “‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.” The term “personal injury” is defined in Tex.Rev.Civ.Stat.Ann. art. 6701d, § 10(e) (Vernon Supp.1972) as: “A wound or injury to any part of the human body which necessitates treatment.” The Workmen’s Compensation Act, Tex.Rev.Civ.Stat. Ann. art. 8306, § 20 (Vernon Supp.1974) defines the term “injury” or “personal injury” as “damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.”

In Bailey v. American General Insurance Co., 154 Tex. 430, 279 S.W.2d 315 (1955), the Supreme Court held that an employee could recover workmen’s compensation insurance for a disabling neurosis, described as an “anxiety reaction” or “anxiety state.” There an employee alleged that he suffered from that condition as a result of observing a fellow employee fall from a scaffold to his death. The Supreme Court, in an exhaustive opinion dealing with physical injury caused by an emotional trauma, pointed out that “physical structure of the body” refers to the entire body, not simply to the skeletal structure or to the circulatory or digestive systems. “It refers to the whole, to the complex of perfectly integrated and interdependent bones, tissues and organs which function together by means of electrical, chemical and mechanical processes in a living, breathing, functioning individual. To determine what is meant by ‘physical structure of the body,’ the structure should be considered that of a living person — not as a static, inanimate thing.” Id. at 318. Stating that since there was an actual physical injury, though the cause was an emotional trauma, the court allowed recovery.

The terms “bodily injury” and “personal injury” are both used in the statute. We regard them as equivalent. American Fidelity and Casualty Co. v. Mahon, 170 Md. 573, 185 A. 330, 332, 105 A.L.R. 1200 (1936) and Cormier v. Hudson, 284 Mass. 231, 187 N.E. 625, 626 (1933). In Bailey v. Whaples, 435 S.W.2d 626 (Tex.Civ.App. — Waco 1968, writ ref’d n.r.e.) the court said that “personal injury” has no distinctive legal meaning other than the meaning generally attributed to the term. It is a broad and inclusive term relating to all types of injury a person might receive. In Dave Snelling Lincoln-Mercury v. Simon, 508 S.W.2d 923 (Tex.Civ.App. — Houston [1st Dist.] 1974, no writ) recovery was allowed for the mental injury of traumatic depressive reaction, suffered by a mother after witnessing the death of her child. There was no physical contact with the body, but the court, following the Supreme Court in Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890), held that the foreseeable physical injury sustained as a result of the severe emotional impact, was grounds for recovery.

Mokry’s allegations that he suffered personal injuries in the form of headaches and nervousness as a result of the negligence of employees of the state in the use of tangible property owned by the state recite a valid cause of action within the Texas Tort Claims Act. Accordingly, we sustain appellant’s points of error and hold that the trial court erred in dismissing the cause of action.

Since the case must be reversed and remanded for further proceedings in the trial court, it is appropriate that we also pass upon appellant’s complaint that the trial court erred in ruling that the State of Texas was not required to answer Mokry’s written interrogatories propounded to the state pursuant to Tex.R.Civ.P. 168. The record reveals that Mokry submitted interrogatories to defendants which requested information which would reveal facts concerning the circumstances of the loss of the eyeball. The state refused to answer, and the trial court ruled that the state need not respond to those interrogatories. Our Supreme Court in Texas Department of Corrections v. Herring, 513 S.W.2d 6, 7 (Tex.1974) required the state, as a party defendant in a personal injury action, to comply with the rule relating to answering written interrogatories. The court said:

As a general rule, the State litigates as any other party in Texas courts. ‘When the state becomes a litigant in the courts it must observe and is bound by the same rules of procedure that bind all other litigants, except where special provision is made to the contrary.’ Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, 90 (1955). . . . Laws and rules governing evidence, burden of proof, cross complaints, pleadings, instructed verdicts and summary judgments bind the State and other litigants uniformly.

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


source: Caselaw Access Project

author: COLEMAN, Chief Justice.

license: Public Domain

text:
    ENTERPRISES AND CONTRACTING COMPANY, Appellant, v. PLICOFLEX, INC., Appellee.
    No. 16547.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 23, 1975.

      Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellant.
    Robert W. Simmer, Houston, for appellee.
   COLEMAN, Chief Justice.

This is a suit by plaintiff-appellant, Enterprises and Contracting Company, to collect a judgment rendered in its favor and against defendant-appellee, Plicoflex, Inc., by the Beirut Commercial Court of the First Instance in the State of Lebanon. Plicoflex answered that the Beirut Court did not have personal jurisdiction over it and that it had a valid defense to the claims of plaintiff. Plicoflex made a motion for summary judgment and plaintiff filed a motion for continuance. Plaintiff’s motion was denied, the summary judgment hearing was held and motion granted on March 3, 1975 and the summary judgment was signed and entered in behalf of Plicoflex on March 20, 1975.

Appellant’s first point of error asserts that the trial court abused its discretion by not granting appellant’s motion for continuance. The motion for continuance was filed pursuant to Rule 166-A(f) which provides as follows:

“Should it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

In the motion for continuance, counsel for appellant stated that: he was served with a copy of Plicoflex’s motion for summary judgment on February 19, 1975, and was furnished with a copy of the answer some time after that; it was not until the aforementioned times when he was apprised of Plicoflex’s allegations and motion for summary judgment that he could prepare his summary judgment proof; upon receipt of the answer, inquiries were made to appellant in Beirut, Lebanon; communication between counsel and appellant is extremely difficult; and there was no person within the United States from whom counsel could have obtained the necessary information and summary judgment proof. He further stated that the motion for continuance was not a dilatory tactic exercised for the purpose of delay, and requested that the motion be continued on the docket for a period of at least ninety days, to provide him with an opportunity to present affidavits in opposition to Plicoflex’s summary judgment proof. Only twelve days after the motion for summary judgment was filed, the motion for continuance was denied and summary judgment was entered. It is appellant’s contention on this appeal that “. it has not had a proper opportunity to fairly present its case in this matter . . .”

Plicoflex counters that appellant’s motion for continuance did not fully comply with the requirements of Rule 252, T.R.C.P., and therefore was properly denied by the trial court. Rule 252 requires inter alia, that the movant for continuance for want of testimony shall show that the testimony is material. Plicoflex asserts that appellant’s motion was deficient in this regard. The motion for continuance stated the following:

“As soon as Plaintiff’s Counsel secured the answer of Defendant, inquiries were made of the Plaintiff of the facts necessary to be presented in order to refute the Motion for Summary Judgment filed by the Defendant.”

The basis for Plicoflex’s motion for summary judgment and the sole import of his summary judgment proof was that none of the officers of Plicoflex and neither of the registered agents in Texas or Delaware had been served with process in the Beirut case. Yet it appears on the face of the motion for continuance that appellant’s summary judgment proof or the testimony to be obtained would assert that there had been service of process on Plicoflex which proof was, of course, material to the disposition of the case.

Both the Courts of Civil Appeals in Dallas and Amarillo have held applications for additional time under the summary judgment provision of Rule 166-A do not necessitate a strict compliance with all the requirements of Rule 252. Green v. Smart, 333 S.W.2d 880, 885 (Tex.Civ.App. — Dallas, 1960, no writ history); Wilkerson v. Moore, 465 S.W.2d 382, 384 (Tex.Civ.App. — Amarillo, 1971, no writ history). A case closely in point with the instant case is Watson v. Godwin, 425 S.W.2d 424 (Tex.Civ.App.— Amarillo, 1968, writ ref’d n. r. e.). Watson is a summary judgment case in which the motion for continuance was neither verified nor supported by affidavit and in which the record failed to show that the testimony sought was material. The court held that the failure to show materiality was “also” fatal to the point of error. Such holding was preceded by the following statement of the law in Texas:

“Rules relating to continuance merely prescribe certain requisites of the application. Accordingly, if an application for continuance does not conform to the provisions of a statute or rule regulating same the granting of relief is within the sound discretion of the court .
If it is demonstrated that the rule has not been complied with it will be presumed, in the absence of a showing to the contrary, that the court has not abused its discretion.” Id. at pg. 430.

In Traweek v. Radio Brady, Inc., 441 S.W.2d 240 (Tex.Civ.App. — Austin, 1969, writ ref’d n. r. e.), the court found no abuse of discretion when the trial court overruled a motion for leave to file supplemental pleadings at the summary judgment hearing. The following observation was, however, made in Traweek at page 243:

“Rule 166 A, Texas Rules of Civil Procedure, provides that opposing affidavits be filed prior to the date of hearing. The rule contains ample provisions for the protection of the litigants where it appears to the trial court that some modification of the literal requirements of the rule is required in the interest of justice. The rule contemplates that the trial court will- have broad discretion in setting reasonable deadlines in summary judgment proceedings.”

We are of the opinion that the trial court abused its discretion in overruling appellant’s motion for continuance. However such error was not properly preserved. The ruling of a court with regard to a motion for continuance shall be considered to have been acquiesced in unless complained of in the motion for new trial. Rule 325, T.R.C.P. That rule applies where summary judgment has been granted. Watson v. Godsin, 425 S.W.2d 424, 430 (Tex. Civ.App. — Amarillo, 1968, writ ref’d n. r. e.); Shaw v. Transport Life Ins. Co., 498 S.W.2d 495, 499 (Tex.Civ.App. — Texarkana, 1973, no writ hist.). It is further necessary that a motion for new trial be filed within ten days after the judgment is rendered. Rule 329b, T.R.C.P.

In the instant case, appellant filed “Plaintiffs Motion for Reconsideration” which might be considered a motion for new trial. The transcript indicates that the motion was filed on April 3, 1975. The summary judgment was signed on March 20, 1975. Since fourteen days had elapsed between the entry of judgment and the motion for “new trial,” the motion was not timely filed.

The court’s overruling of the motion for continuance must, therefore, be considered to have been acquiesced in notwithstanding appellant’s position to the contrary on this appeal. Rule 374, T.R.C.P.

The second and final point of error states that the trial court erred in granting summary judgment for Plicoflex. In its motion for summary judgment, Plicoflex asserted that none of its officers or registered agents were served with process in Cause No. 402 of the Beirut Commercial Court of the First Instance. Said court entered the judgment which is the subject of the instant litigation. As proof of its contention, Plicoflex submitted the affidavit of each officer of the corporation stating the following:

“Within my own knowledge, no service of citation or summons was had upon me, nor am I aware of service on any other officer of Plicoflex, Inc., in Lebanon, or any territory or possession of the United States or any citation or summons related to such suit which is the basis of the purported judgment.”

Mr. Carl H. Schulse, secretary-treasurer of Plicoflex, further stated in his affidavit that the Corporation Trust Company of Wilmington, Delaware, was Plicoflex’s registered agent for service of process in the State of Delaware and C T Corporation System was its registered agent “in all other places where Plicoflex, Inc., transacts business under the jurisdiction of the United States Government.” The affidavits of the registered agents stated that no service was had upon them either in Delaware or at the Houston office of C T.

The applicable laws of Lebanon were neither plead nor proved by either party. In absence of pleading and proof, the law of a foreign country is presumed to be the same as the law of Texas. Tortuguero Logging Operation, Ltd. v. Houston, 349 S.W.2d 315, 318 (Tex.Civ.App.— San Antonio, 1961, writ ref’d n. r. e.); Casey v. Sanborn’s, Inc. of Texas, 478 S.W.2d 234, 239 (Tex.Civ.App. — Houston [1st], 1972, no writ hist.); Ochoa v. Evans, 498 S.W.2d 380, 387 (Tex.Civ.App. — El Paso, 1973, no writ hist.). The adequacy of service of process, if any, on Plicoflex in the instant cause must therefore be measured against the requirements of Texas law. Vernon’s Ann.Civ.Stat. art. 2031a requires a foreign corporation doing business in Texas to designate a resident of Texas to be its registered agent upon whom process may be served in all suits in which the foreign corporation is to be made a party. Service upon such agent “shall be taken and held as due service on said corporation.”

It was the burden of Plicoflex to prove, as a matter of law, that it had not been served with process in the Lebanese cause. In Pattison v. Highway Insurance Underwriters, 292 S.W.2d 694, 699 (Tex.Civ.App. — Galveston, 1956, writ ref’d n. r. e.), this court (Gannon, J.) held that:

“. . . [I]n summary proceedings the burden rests heavily upon the moving party to negative conclusively the existence of a genuine issue in regard to some controlling fact entitling the movant to judgment. And that where it appears that such an issue ‘may exist,’ summary relief is to be denied without regard to informalities or defects in the resisting party’s showing.”

Thus, in the instant case, while the burden of proving that Plicoflex had properly been served with process will be on Enterprises and Contracting Company at the regular trial, Plicoflex, as movant, had the burden of proving at the summary judgment hearing that it had NOT been properly served. Cheatwood v. Jackson, 442 S.W.2d 789, 793 (Tex.Civ.App. — Houston [14th] 1969, writ ref’d n. r. e. at 445 S.W.2d 513). If Plico-flex failed to satisfy its burden, it is of no moment that appellant offered no summary judgment proof. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

Applying Texas law to the instant case, Plicoflex failed to establish that there was no issue of material fact and that it was entitled to judgment, as a matter of law, pursuant to Rule 166 A. Plicoflex did not deny that it did business in Lebanon, and it did not establish that it had no registered agent for the purpose of service of process in Lebanon. Plicoflex further did not clearly establish that such an agent was not served with process consistent with a Lebanese long-arm statute, which is presumed to be the same as that of the State of Texas. Thus, there exists a fact issue as to whether or not there was such an agent and whether or not such agent was served. The court erred in rendering a summary judgment in favor of Plicoflex.

Appellee cites Sidran v. Tanenbaum, 391 S.W.2d 93 (Tex.Civ.App. — Dallas, 1965, no writ hist.), for the proposition that in suit to enforce a foreign judgment, the plaintiff cannot succeed in a summary judgment proceeding without showing that defendant had been properly served. Sidran is distinguishable from the instant case, however, because in Sidran it was the plaintiff who moved for summary judgment and who had the burden of proving his right to recover, as a matter of law.

There is discussion in both briefs concerning the judgment attached to plaintiff’s original petition with regard to its authenticity and admissibility. While the copy may not be admissible into evidence, a question we need not determine, it was neither offered nor received into evidence at the summary judgment hearing. We note that attached to plaintiff’s motion for reconsideration were numerous affidavits and documents obtained from people in Lebanon regarding Lebanese law, proof of service of citation on Plicoflex and other data in both Arabic and English. This material was not before the trial court when it considered the motion for summary judgment. None of these evidentiary matters have been considered by the court.

Reversed and remanded.


author: CORNELIUS, Justice.

text:
    Hugh A. ENGLISH, Sr., Appellant, v. AMERICAN & FOREIGN INSURANCE COMPANY, Appellee.
    No. 8319.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 28, 1975.
    Rehearing Denied Dec. 2, 1975.

      R. L. Middleton, Jr., Dallas, for appellant.
    John H. Martin, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   CORNELIUS, Justice.

In this workmen’s compensation case the jury found that plaintiff Hugh A. English was disabled by osteo-arthritis incurred as a result of his employment. The jury also found such disability had its beginning on May 23, 1971. Since it was undisputed that plaintiff did not give his employer notice of his condition until May of 1972 or file his claim for compensation until November of 1972, the trial court denied recovery. There was no claim of good cause for failure to timely give notice or file the claim for compensation. Instead, plaintiff contended that the first distinct manifestation of his condition was not until May of 1973, when he underwent surgery for the condition, and that consequently his notice and claim were timely. The appeal contends that (1) the trial court erred in refusing to allow plaintiff to testify to the time when he first believed his condition “to be serious”, (2) the jury was guilty of misconduct in taking notes of the testimony and using them in its deliberations, and (3) the jury’s finding that the condition began on May 23, 1971, was against the great weight and preponderance of the evidence.

Plaintiff worked for Dallas Federal Savings and Loan Association as a painter and paper hanger from April of 1965 until May of 1972. He began to have trouble with his neck as early as April of 1971 and was hospitalized for the condition on May 23, 1971 when he was treated by Dr. Kirksey. After four days hospitalization, plaintiff went back to work but was again hospitalized in December of 1971. He again returned to work but continued to have trouble with his neck until May of 1972 when he was hospitalized again and surgery was performed. Although plaintiff admitted that Dr. Kirksey told him he had osteo-arthritis in May of 1971 when he was first hospitalized, and that by October or November of 1971 his neck was almost completely immobile, and that he then knew he had osteo-ar-thritis due to the nature of his work over the years, he testified he never felt anything was wrong with his neck, other than usual soreness which was to be expected in his type of work, until May of 1972 when a myelogram revealed the condition. Plaintiff’s doctor testified that the nerve root irritation which necessitated surgery did not manifest itself until May of 1972, and could well have been triggered by trauma occurring between plaintiff’s examination in January of 1972 and May of that year.

The first point of error, which complains of the trial court’s refusal to allow plaintiff at one point in the trial to testify to the time when he first believed his condition was serious, is overruled. Plaintiff was not harmed by that action because he later was allowed to testify that it was not until the myelogram was taken in May of 1972 that he felt there was anything wrong with his neck other than the usual soreness which was to be expected in his kind of work.

The second point of error asserts that a new trial should have been granted because of the misconduct of the jury in using notes during their deliberations. A new trial on grounds of jury misconduct will be granted only when (1) the misconduct is proved, (2) the misconduct is material, and (3) the misconduct probably resulted in injury to the complaining party. Rule 327, Tex.R.Civ.P.; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943). Whether the acts alleged to be misconduct actually occurred is a question of fact, and if the evidence is conflicting, the express or implied finding of the trial court on that question is ordinarily taken as final. Bar- rington v. Duncan, supra; Willrodt v. Union City Transfer, 258 S.W.2d 443 (Tex.Civ.App. Fort Worth 1953, writ ref’d, n. r. e.). But when the occurrence of the conduct is undisputed, the questions of whether it constituted misconduct and if so, whether such misconduct was material and probably resulted in injury to the complaining party are questions of law to be determined from the record as a whole. Texas Employers’ Insurance Association v. Waldon, 392 S.W.2d 509 (Tex.Civ.App. Tyler 1965, writ ref’d, n. r. e.); Amerine v. Hunter, 335 S.W.2d 643 (Tex.Civ.App. Austin 1960, writ ref’d, n. r. e.); Barrington v. Duncan, supra; Tex.R.Civ.P. 327. The party moving for a new trial has the burden to prove not only that the misconduct occurred, but that it was material and probably resulted in injury. St. Louis Southwestern Railway Company v. Gregory, 387 S.W.2d 27 (Tex.1965); City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944); Barrington v. Duncan, supra.

Affidavits attached to the motion for new trial and evidence produced at the hearing of the motion showed that two jurors took notes during the trial. The notes contained various dates referred to in the testimony, and were read to the other jurors or referred to during the deliberations on the issue of the beginning date of plaintiff’s condition.

Tex.R.Civ.P. 281 prescribes the material which may be taken into the jury room during deliberations. The rule does not mention notes made by the jurors but it does prohibit the use of depositions during the deliberations, and Rule 287 provides an exclusive method of making a witness’s testimony available to the jurors in case they disagree in their recollection of such testimony. Since there is no danger that either depositions received in evidence or reporter’s transcripts of portions of the testimony would be inaccurate or would inject new and unsworn testimony into the case, it appears that the purpose of the prohibitions against the jury’s use of such material is to avoid undue emphasis of isolated portions of the testimony. If that be the purpose, the reasons underlying it would apply with even greater force to the jury’s use of a memorandum made by one of its members, for such a memorandum would not only serve to emphasize selected portions of the testimony but would also be subject to possible inaccuracies resulting either from honest mistake or corrupt purpose. There is a wide difference of opinion among the authorities as to the propriety of the use of a juror’s notes. See 14 A.L.R.3d 831. The few Texas cases which have considered the problem have not definitely answered the question, but have found the practice harmless when the notes pertained to undisputed issues or where the notes were not held out to the other jurors as evidence. See Manges v. Willoughby, 505 S.W.2d 379 (Tex.Civ.App. San Antonio 1974, writ ref’d, n. r. e.); Guest v. American Petrofina Company of Texas, 485 S.W.2d 926 (Tex.Civ.App. Texarkana 1972, no writ); Brooks v. Temple Lumber Company, 105 S.W.2d 386 (Tex.Civ.App. Beaumont 1937, no writ). But the use of a juror’s written notes as evidence or as authority on their face as being a true representation of a portion of the testimony in order to persuade the other jurors as to a disputed issue would seem to violate the spirit, if not the letter, of Rules 281 and 287. Nevertheless, the record fails to show that the use of the notes in this case resulted in probable injury. The testimony at the hearing of the motion for new trial revealed that the notes were read or referred to only to determine the exact date of plaintiff’s hospitalizations. Those dates were undisputed. It was stipulated that plaintiff was first hospitalized on May 23, 1971. Apparently, the jury felt that the time of plaintiff’s first hospitalization was the beginning or first manifestation of his condition, and they merely used the notes to determine the specific date of such hospitalization. As that date was undisputed, the use of the notes for that purpose could not have harmed the plaintiff.

A careful review of the testimony, some of which is summarized earlier, reveals ample evidence from which the jury could have concluded that plaintiff’s condition had its first distinct manifestation on May 23, 1971 when he was first hospitalized. Point of error No. 3 complaining that such finding is against the great weight and preponderance of the evidence is therefore overruled.

The judgment of the trial court is affirmed.

      . Defendant also asserts that osteo-arthritis was not compensable as an occupational disease until the amendment of Art. 8306, Sec. 20, Tex.Rev.Civ.Stat.Ann. effective August 30, 1971, which was subsequent to the beginning of plaintiff's condition.


author: DUNAGAN, Chief Justice.

text:
    Clyde L. CHARVIS, Appellant, v. Earnestine W. CHARVIS, Appellee.
    No. 830.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 30, 1975.
    Charles T. Cole, Phenix & Freeman, Henderson, for appellant.
    David P. Brown, Asst. Dist. Atty., Henderson, for appellee.
   DUNAGAN, Chief Justice.

This is a child support case brought by appellee, Earnestine Charvis, in the Juvenile Court of Richland Parish, Louisiana. It was transmitted to the District Court of Rusk County, Texas, on November 1, 1974, under the Uniform Reciprocal Enforcement of Support Act.

Appellee sought support for a child, Jon Christopher Charvis, born on June 14, 1973, to the marriage of appellant and appellee. Appellant, Clyde Charvis, had obtained a divorce from Earnestine on July 13, 1973, in the District Court of Rusk County. The divorce decree recited that Earnestine had been duly served with citation but wholly made default and that “ * * ⅜ the Court finds that no child or children have been born to or adopted by said parties during their marriage relation.”

Appellant moved for dismissal of this suit on the ground that the recitation of the non-existence of any children was res judi-cata and that the child support suit was a collateral attack upon that recitation. The Court overruled that motion and, after a non-jury trial, ordered appellant to pay support. The sole point on appeal from that order is the contention regarding collateral attack. We affirm the judgment of the court below.

A collateral attack can be successful only if the judgment attacked was void as opposed to merely voidable. Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833, 834 (1953). However, a valid judgment which is immune to collateral attacks by parties and their privies is not binding upon strangers. Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 388, 389 (1946). The prior judgment is inapplicable and irrelevant to the rights of strangers. Hodges, Collateral Attacks on Judgments, 41 Tex.L.Rev. 163, 196 (1962). This action for child support was instituted on behalf of the minor obligee, Jon, who was the actual party in interest. See Tex. Family Code Ann. Sections 14.07 and 21.27 (1974). Earnestine, as a named party to the divorce action, may well be estopped from attacking that judgment. The relevant inquiry, however, is whether Jon was bound by the recitation in that decree. Although Jon was clearly not a party to the divorce action, neither was he a stranger if he was in privity with a party to that action. Kirby Lumber Corp. v. Southern Lumber Go., supra.

Persons are privy to a judgment if, subsequent to the commencement of that action, they shared in or succeeded to the same property rights adjudicated therein. Kirby Lumber Corp. v. Southern Lumber Co., supra. Privity is not established by the mere common interest of persons in the same question. Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex.1971). Jon’s right of support from his parents is statutory and independent of the divorce action. Tex.Family Code Ann. Section 14.-05; Townsend v. Townsend, 115 S.W.2d 769, 772 (Tex.Civ.App. — Dallas 1938, no writ). This right existed prior to the commencement of the divorce action but was not adjudicated in that action. Jon was not privy to that action. Townsend v. Townsend, supra. This conclusion conforms with the strong public policy which presumes the legitimacy of children. See Caddel v. Caddel, 486 S.W.2d 141, 146 (Tex.Civ.App.— Amarillo 1972, no writ).

Child support has been recovered in several similar situations. A divorce decree which was silent as to support for a minor child was not res judicata of the right to obtain support for said child in a subsequent action. Slattery v. Hatmaker, 255 S.W.2d 334, 335 (Tex.Civ.App. — San Antonio 1953, no writ); Townsend v. Townsend, supra. Although the divorce decree recited that “. . .no child or children have been born to or adopted by said parties .”, the right of a child of the marriage to support from its father could not be affected by any kind of estoppel against its mother. Hartman v. Chumley, 266 S.W. 444, 446 (Tex.Civ.App. — Waco 1924, no writ). While Zimmerman v. Zimmerman, 488 S.W.2d 184 (Tex.Civ.App. — Houston 14th Dist. 1972, no writ) is not directly in point here, we think a reading thereof will shed some light on the question before us.

Appellee’s motion to strike a portion of the transcript alleged that the divorce decree should not have been included since it was not attached to the pleadings or filed as an exhibit. This objection related to informalities in the manner of bringing this case into court. It was waived when appel-lee failed to file the motion within thirty days after the filing of the transcript. Tex. R.Civ.P. 404; See Englander Co. v. Kennedy, 424 S.W.2d 305, 307 (Tex.Civ.App. — Dallas 1968, writ ref’d n. r. e. at 428 S.W.2d 806). Appellee’s motion to strike a portion of the transcript is overruled.

The court below properly overruled the Motion to Dismiss. Therefore, the judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    Oscar MURPHY et al., Appellants, v. LOWER NECHES VALLEY AUTHORITY et al., Appellees.
    No. 7741.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 30, 1975.
    Rehearing Denied Nov. 21, 1975.

      Provost, Umphrey, Doyle & Mehaffy, Port Arthur, for appellants.
    0. J. Weber, Jr., Beaumont, for appellees.
   STEPHENSON, Justice.

This is an action for damages for personal injuries to Wendell Keith Murphy, a minor. Suit was brought under the Texas Tort Claims Act against the Lower Neches Valley Authority (LNVA). This appeal is from a summary judgment granted LNVA.

The pleadings and summary judgment proof show Wendell was fourteen years old at the time he dove into an LNVA canal and struck his head on a hump or lump of clay protruding from the bottom of the canal. The waters of the canal were so muddy no one could see the humps by looking into the canal.

The recent Supreme Court case, State v. Tennison, 509 S.W.2d 560 (Tex.1974), construing the Texas Tort Claims Act, settled most of the questions presented in this case. That suit was one for damages when plaintiff slipped on a slick floor in a State Building in Austin. That Court made this statement in part:

“It is well settled in this State that if the person injured was on the premises as a licensee, the duty that the proprietor or licensor owed him was not to injure him by willful, wanton or gross negligence [citing cases]. An exception to the general rule is that when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe [citing cases] .... Texas has conformed to the generally recognized rule that the duty to warn licensees of dangerous conditions arises only in those instances where the licensor knows of the condition likely to cause injury. Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App.[ — San Antonio] 1954, writ ref’d n. r. e.) . . . . Actual knowledge, rather than constructive knowledge of the dangerous condition is required.” (509 S.W.2d 562)

The dangerous condition in this case was the presence of humps or lumps on the bottom of the canal. We proceed to examine the summary judgment proof to see if LNVA discharged its burden in accordance with the rules set forth in Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). On a trial of the merits, plaintiffs would have the burden of proving that LNVA had knowledge of the dangerous condition and that Wendell did not. Therefore, on this motion for summary judgment LNVA had to prove as a matter of law that it had no knowledge of the dangerous condition or that Wendell did. See Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970).

First as to the lack of knowledge by LNVA, how can a movant in a summary judgment case establish a negative factual situation (lack of knowledge) as a matter of law? Apparently this is a question about which little has been written. The summary judgment proof in the case before us shows the following: Thomas R. Galloway is the general manager. There are three superintendents — T. G. Morgan, outside; Earl Fackler, pumping plant; and R. B. Rodgers, engineering. There are between fifty and sixty employees, including thirty in maintenance and ten or eleven canal or levee riders. In view of the settled law that knowledge by an agent or employee is knowledge by the employer, did LNVA have to furnish affidavits by every one of its agents and employees that each did not know of the dangerous condition? We think not.

The summary judgment proof shows that — Thomas R. Galloway, the general manager; Thomas Glenn Morgan, the outside superintendent; and Walter Edward Pope the canal rider generally assigned to this area — they did not know of the dangerous condition which resulted in this injury. However, the summary judgment proof also shows that John Yancy, another LNVA canal rider, also checks the canal in question. There is no summary judgment proof that John Yancy did not know about the dangerous condition. Under this state of the record, has LNVA established lack of knowledge, as a matter of law? We conclude that it has not.

We have not been cited, nor have we found, a case in Texas or elsewhere passing directly upon this question. We proceed to establish a rule based upon common sense and general principles of law. Since the moving party is a legal entity having many employees and agents, it can discharge such burden only by establishing, as a part of its summary judgment proof, lack of knowledge on the part of each of the agents and employees having some duty pertaining to the alleged dangerous condition. Under our view of the law, a requirement that every employee and agent of the legal entity, regardless of his duties, swear to a lack of knowledge would defeat the purpose of the rule. On the other hand, when we require that everyone charged with any duty regarding the transaction in question to come forward in the summary judgment record, we have achieved the practical solution to the problem of establishing a negative fact as a matter of law.

As stated above, the trial court should have granted the motion for summary judgment if LNVA proved as a matter of law that Wendell knew about the dangerous condition. Wendell’s deposition was considered as a part of the summary judgment proof. The deposition showed that Wendell had been swimming in the canal on many occasions before this incident occurred. He knew' how deep the water was and knew there were humps and lumps on the bottom of the canal between a foot and a foot and a half high. However, the deposition also shows that he did not know the humps or lumps were at the exact spot where he dived in. He had dived from that exact spot before and had not hit anything. A question of fact was raised by this evidence, and LNVA did not prove as a matter of law that Wendell knew about the dangerous condition which resulted in his injury.

Sec. 16 of the Texas Tort Claims Act, Tex.Rev.Civ.Stat. art. 6252-19 (Supp. 1974-1975) contains the following provisions, in part:

“Except where there is actual notice on the part of the governmental unit that death has occurred or that the claimant has received some injury or that property of the claimant has been damaged, any person making a claim hereunder shall give notice of the same to the governmental unit against which such claim is made, reasonably describing the damage or injury claimed and the time, manner and place of the incident from which it arose, within six months-from the date of the incident.”

The uncontroverted summary judgment proof shows that more than a year elapsed before either Wendell’s mother or father gave LNVA notice of this injury. Therefore, if LNVA proved as a matter of law that it did not have actual knowledge of this injury within six months from the date of its occurrence, then the trial court’s action in granting the motion must be affirmed.

It is apparent that the same problems arise in connection with this question as discussed above concerning the lack of knowledge by LNVA as to the dangerous condition. How could LNVA prove this negative factual situation as a matter of law? We apply the same rule as set forth above in our disposition of the dangerous condition question. LNVA could discharge its burden by establishing lack of actual knowledge about Wendell’s injury on the part of each of its agents and employees having some duty pertaining to the maintenance and upkeep of this particular canal as well as those having some duty to take care of claims for injuries.

The summary judgment proof shows that T. G. Morgan, a superintendent, had what he called “hearsay” knowledge about this occurrence. His job was to take care of all maintenance, new construction, and operation of the canal system. Walter Pope, the canal rider, testified by deposition that he heard about the boy getting hurt when he jumped in the canal. He heard about it two or three days after it happened when he was told by “some of the other boys down there.” He knew the boy got hurt, but not how bad, and he didn’t know the boy’s name. He reported to his superior, Mr. Galloway, that the boy had been hurt, about two or three days after the incident. He told Mr. Galloway where the boy jumped in when he got hurt. Pope then talked with the Port Neches Chief of Police, and the Chief confirmed that he had heard about the boy getting hurt. He thought he told Mr. Galloway about his talk with the Chief of Police. The deposition of Oliver Olson showed that he was the LNVA auditor and was in the office when Mrs. Murphy came in to report this claim more than a year after the accident. This was the first he had heard about it. The depositions of Michael Stampley, an LNVA employee; John Yancy, a levee rider; and R. B. Rodgers, an LNVA engineer; were all silent as to any knowledge of an injury. Affidavits by Tom Galloway and T. G. Morgan state they first heard about this accident more than a year after it occurred. The deposition of Wendell’s father shows an account of this accident appeared in the Mid-County Chronicle in the next issue after the accident.

LNVA failed to establish as a matter of law that it did not have actual knowledge of this injury within six months from the date of its occurrence by failing to show that all of its agents and employees having some duty to the maintenance and upkeep of this canal had no actual knowledge. See City of Fort Worth v. Davidson, 117 Tex. 89, 296 S.W. 288 (1927). See also E. McQuillin, Municipal Corporation § 54.106 at 295 (3rd Ed.39 Tex.Jur.2d § 208 Municipal Corporation 548 (1962).

LNVA argues that Wendell was a trespasser and the only duty owed to him was not to injure him willfully. On the other hand, plaintiffs contend Wendell was a gratuitous licensee. While the term of “gratuitous licensee” is not in common usage in Texas in cases of this nature, it has been defined as “one whose presence upon the premises is solely for the visitor’s own purpose in which the possessor of the property has no interest, either business or social, and to whom the privilege of entering is extended as a mere favor by express consent or by general custom.” Gonzalez v. Broussard, 274 S.W.2d 737, 738 (Tex.Civ.App. — San Antonio 1954, writ ref’d n. r. e.) [citing § 331 of the Restatement of Torts]. That particular section of the Restatement was omitted in the second edition but was carried over in substantially the same terms into § 330 [comment h(l)]. In Gonzalez, the suit was brought on behalf of a minor who had tripped over some rocks which had been placed on the playground of a drive-in theater by others. The owner had allowed other children to play on the premises; he knew of the presence of the rocks which the children brought, and such practice had continued for a long period of time. The child was held to be a “gratuitous licensee.”

Other examples of “gratuitous licensees” include situations where a trespass has been tolerated for such a sufficient period of time that the public believes it has the “permission” of the possessor to use the property, e. g., such as the use of a pathway through a coal company’s property [Markovich v. Jefferson Coal & Coke Corporation, 146 Pa.Super. 108, 22 A.2d 65 (1941)]; where people have used a railroad’s right-of-way for a period of time without manifested objection from the company, those people have been classified as gratuitous licensees rather than trespassers [Louisville & Nashville Ry. v. Blevins, 293 S.W.2d 246 (Ky.App.1956; accord: Gulf, C. & S. F. Ry. Co. v. Matthews, 99 Tex. 160, 88 S.W. 192 (1905); Jara v, Thompson, 223 S.W.2d 941 (Tex.Civ.App. — San Antonio 1949, writ ref’d)]. A gratuitous licensee has also been succinctly defined as a licensee who is “not a business visitor.” Laube v. Stevenson, 137 Conn. 469, 78 A.2d 693, 695, 25 A.L.R.2d 592 (1951).

The summary judgment proof is conflicting as to the amount of use permitted by LNVA as to swimming. Even though several LNVA witnesses testified that the policy was to refuse to allow swimming in the canal, there is much evidence that boys swam in the canal every day during the summer. The depositions of Wendell and his young friend, Brett Anderson, show that they had never been asked not to swim in the canal and saw no “no trespassing” or “no swimming” signs. LNVA did not prove as a matter of law that Wendell was a trespasser.

Reversed and remanded.


author: HALL, Justice.

text:
    TEXAS PET FOODS, INC., Appellant, v. The STATE of Texas, Appellee.
    No. 5490.
    Court of Civil Appeals of Texas, Waco.
    Oct. 31, 1975.
    Judgment of Contempt Nov. 3, 1975.
    Rehearing Denied Nov. 20, 1975.

      Dunnam, Dunnam & Dunnam, Vance Dunnam, Waco, for appellant.
    Bernard D. Newsom, Jr., Austin, for ap-pellee.
   HALL, Justice.

The problems posed on this appeal are the validity of a temporary writ of injunction, and the disposition of a contempt action filed originally in this court based upon asserted violations of the temporary injunction committed during the pendency of the appeal.

Texas Pet Foods, Inc., operates a poultry rendering plant which by a process of cooking converts chicken and turkey offal, including feathers, into a protein supplement for animal feeds. The plant is located in McLennan County near the City of Waco.

The State of Texas brought this suit for temporary and permanent injunctive relief to prevent alleged violations by Texas Pet Foods of Section 4.01 of Article 4477-5, Vernon’s Tex.Civ.St. (Texas Clean Air Act), and of Section 4 of Article 4477-6 (Texas Renderers’ Licensing Act), and for the assessment of monetary penalties.

The offal is transported daily by the defendant in unrefrigerated trucks to its plant from several poultry processing plants in the vicinity of Waco. There are no refrigeration facilities at the defendant’s plant.

Under ideal conditions, the defendant processes around the clock, alternately cooking ten hours, then cleaning up four hours, 5½ days per week; and there is little delay between delivery of the material into the plant and its processing. There are six cookers, each holding up to three tons of raw material. Feathers are rendered separately from the balance of the offal. The feathers cook in one hour; the other cooks in three hours. After cooking, the feathers are mechanically conveyed through a dryer, then a grinder, then in the form of meal into a storage bin. The other material follows the same route after leaving the cookers, except that its first stop is an expeller where oil is pressed from it and run into a tank. Again, under ideal plant conditions, odors emanating from the raw materials, the cookers, the expeller, the dryer, the finished meal, and the water used in the processing, are controlled and eliminated through a “scrubber system” in the plant and a “ridge-and-furrow system” in fields outside the plant. Interworking with these systems, and necessary to their proper function, are fans, steam condensers, water-chlorination equipment for oxidizing particulate, filters, grease traps, recycle pumps, and a “hot well” aeration tank. Maintained and operated at optimum efficiency, the auxiliary equipment prepares vapors and the air in the plant for odor elimination in the scrubber system, and creates a negative air pressure in the plant thereby pulling the air and vapors through the scrubber system for elimination of odors, and also cleanses the water of all particulate and heavy odors before it is released to the ridge-and-furrow system for disposal. If any auxiliary equipment fails to work, or is permitted to operate inefficiently, the scrubber system and the ridge-and-furrow system cannot perform their functions, and offensive odors result.

The ridge-and-furrow system is a “no-discharge system” consisting of several five-acre tracts upon which the water is released in two-day rotations. A reed grass is cultivated on the ridges for evaporative disposal of the water and aerobic elimination of any odors remaining in it. The system was not designed to handle organic material, and any such material reaching the furrows will putrefy, cause offensive odors, and breed flies.

The scrubber system consists of two parts. There is a venturi-type scrubber which is designed to remove heavy odors, oil droplets, fine meal droplets, and other particulate from the air inside the plant. The second scrubber, the primary one, is a pack scrubber with packing material which can be contaminated with particulate matter. It is designed to handle only plant air from a low-odor source. It cannot handle the high-intensity odors coming from the cookers, expellers, dryers, and other plant areas; but an efficient venturi scrubber will precondition these odors for elimination by the pack scrubber. The scrubber system is an “intricate piece of equipment,” according to the defendant’s president. It was designed and installed by Environmental Research Corporation, and their instructions for its operation, including control of the water flow rate, the air flow rate, chemical injections, and regular removal of particulate, must be closely followed, else the system will fail and odors will be emitted from the plant.

The trucks delivering offal enter the plant through an “air curtain” which is a series of fans designed to help maintain the negative pressure in the plant and also “keep odors in and flies out” at the truck entrance. If this air curtain does not function properly, then an outside wind velocity as light as 1.5 miles per hour will generate enough wind to defeat the negative air pressure system, render the scrubber system ineffective, and permit the venting of heavy odors through the door, small holes, or any opening.

The Temporary Injunction

This suit was filed on July 18, 1975. Upon its filing, a temporary restraining order was issued against the defendant without notice. The State’s application for a temporary injunction was heard on July 24th, and resulted in the following order:

ORDER OP TEMPORARY INJUNCTION
BE IT REMEMBERED that on the 24th day of July, 1975, came on to be heard Plaintiff’s application for temporary injunction in the above numbered and entitled cause and all parties through their respective attorneys of record having announced ready and having considered the contents of Plaintiff’s verified Original Petition, and having heard and considered the evidence presented in this cause on the 24th and 25th day of July, 1975, this Court is of the opinion that the Defendant, Texas Pet Poods, Inc., has operated its poultry by-product rendering establishment on Old Marlin Road in McLennan County in a manner violative of the terms and conditions of the Texas Clean Air Act, Article 4477-5, V.A.C.S., and the Texas Renderer’s Licensing Act, Article 4477-6, V.A.C.S., and that unless restrained and enjoined therefrom will continue to violate the Texas Clean Air Act, Article 4477-5, V.A.C.S., and the Texas Renderer’s Licensing Act, Article 4477-6 V.A.C.S.
IT IS THEREFORE ORDERED, ADJUDGED & DECREED that the Defendant, Texas Pet Foods, Inc., its officers, agents, representatives and employees is enjoined and prohibited pending final trial on the merits from causing or contributing to the presence in the atmosphere, in and around Defendant’s Old Marlin Road poultry rendering facility, odors or particulate matter in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation or property or as to interfere with the normal use and enjoyment of animal life, vegetation or property.
IT IS FURTHER ORDERED, ADJUDGED & DECREED that the Defendant Texas Pet Foods, Inc., its officers, agents, representatives and employees is enjoined and prohibited, pending final trial on the merits, from violating the provisions of Section 4.01(a) and (b) of Article 4477-5, V.A.C.S., and Section 4(b) of Article 4477-6 V.A.C.S., both of which are attached hereto and incorporated herein for all purposes as if fully set forth in this Order.
IT IS FURTHER ORDERED, ADJUDGED & DECREED that Defendant, Texas Pet Foods, Inc., is enjoined and prohibited, pending final trial on the merits, from causing, suffering, allowing or permitting the collection, storage, handling, cooking or processing of poultry products and by-product materials at its Old Marlin Road, Waco, McLennan County, facility until such time as Defendant completes the following requirements:
1) Defendant shall repair all holes in the rendering plant structure and completely seal the entire building to prevent the emission of fugitive odors; 2) Defendant shall install a weighted tarp over the entire raw materials’ room unloading area to prevent the emission of odors and the introduction of flies;
3) Defendant shall inspect and seal all product handling systems used in the transfer and processing of by-product materials to assure same are leak and spill-proof;
4) Defendant shall vent condensor and hot well exhaust gases, vapors and odors directly to Defendant’s Venturri Scrubber;
5) Defendant shall repair or replace the chemical injection pump on the pack tower scrubbing system;
6) Defendant shall repair and seal all trailers and vehicles used in the transporting of raw materials and keep same from leaking;
7) Defendant shall remove all raw and processed poultry materials from rendering plant floors, walls, and equipment and shall thoroughly steam clean same prior to start-up operations and, after start-up, on a daily basis steam clean all in-plant floors;
8) Defendant shall install a recycling pump on the grease trap baffle system and remove all accumulated sludge from its baffle, filtration and chlorination units;
9) Defendant shall level the ridge and furrow waste-water distribution ditches so as to prevent standing water and assure adequate irrigation of ridge and furrow vegetation;
10) Defendant shall develope, reduce to writing, post in a noticeable plant location and insist upon employees following a regular daily cleaning procedure;
11) Defendant shall daily monitor and record the operation of all equipment within the rendering plant; said records are to be kept at the plant site for inspection by authorized regulatory officials; and 12)Defendant shall operate all odor abatement and waste-water treatment equipment according to the manufacturer’s specifications.
The Clerk of this Court shall immediately cause Writ of this temporary injunction to issue.
SIGNED AND ENTERED THIS 28 DAY OF JULY, 1975.

Among other attacks mounted against the order, the defendant contends that it is not supported by evidence, that it alters the status quo and effectively determines the merits of the case, that it is unpermissibly vague in its terms, and that the trial court reversibly erred in refusing to hear evidence relating to a balancing of the equities. We overrule these contentions.

a. sufficiency of the evidence

The rendering facility in question has been in use since 1961. The defendant has been operating it for five years. During these five years, and especially during the two years immediately preceding the hearing on the injunction in question, there has been a continued deterioration of the ridge and furrow system and of the plant building and equipment, aggravated by damage to the roof by a strong wind in April, 1975. During the past two years, enforcement officials of the Texas Air Control Board have sought voluntary compliance by the defendant with the Texas Clean Air Act and the Texas Renderers’ Licensing Act with threats of “Board action,” but with little concrete success. Meanwhile, residents in the area have called upon the officials asking, “Why, why, why can’t something be done?” about the odors emanating from the plant.

Maurice Werblud, the defendant’s president, testified that lately, because of equipment breakdowns, raw materials have had to wait in the trucks in the hot sun; that this causes putrefaction; that when breakdowns occur, including breakdowns in the scrubber system, the defendant continues processing; that when water gets on the meal it creates a “horrible situation” making it “gluey and odorous” and causing the development of maggots in it in “a very short time.” He said that there is “no excuse for a dirty, unsanitary operation in the plant” and no excuse for “bloody, stagnant ponds” in the ridge-and-furrow fields.

Investigations by supervisors of the Texas Air Control Board from May 1, 1975 to within two days of the hearing revealed the following circumstances, among others, reported by them:

1. The building was not well sealed and had numerous holes and cracks through which odors could and did escape.
2. The air curtain was not functioning properly, and outside doors were often left open by the defendant’s employees.
3. Processing and conveyor equipment were subject to constant and substantial spillage of poultry materials; raw and processed materials generally covered the plant floors; raw materials were “hanging everywhere”; feathers, blood, oil, and partially cooked material were spilled and piled under the cookers; and there were piles of meal wet with water.
4. There were no established cleaning, maintenance, and sanitation practices posted for or followed by the employees.
5. The condenser and hot well ducts were disconnected; the gases, vapors and odors from this equipment were by-passing the venturi scrubber; and the pack scrubber was thereby clogged with meal powder substantially reducing its efficiency.
6. The chemical injection pump on the pack scrubber was inoperable.
7. The recycling pump, required by the defendant’s license from the Texas Air Control Board, had not been installed; and an inefficient filtration system improvised and installed by the defendant in lieu of the recycle pump was clogged with grease and sludge.
8. The ridge and furrow system was receiving organic solids; it was not maintained sufficiently level to permit water to properly flow throughout the system; and stagnant, odorous water was standing in the fields.
9. No bona fide attempt was being made to operate and maintain plant equipment in accordance with the manufacturers’ instructions.
10. The trucks transporting raw material often leaked and spilled poultry solids and blood on the plant grounds.
11. The overall condition of the plant and its operation showed an established lack of concern on the part of the defendant’s personnel for the general state of repair of the building and equipment, for cleanliness and sanitation, and for the prevention and elimination of odors.
12. “Obnoxious odors, very strong odors, objectionable odors”’ were emanating from the plant and carrying across neighboring lands.

For several years, plant odors have disturbed the rest and comfort of the residents of the area and the enjoyment by them of their properties; have injuriously affected the health of the residents; and have appreciably depreciated the value of neighboring properties. The area residents testified that the odors are “very unpleasant and nauseating . . . extremely strong . like a dead, decayed animal that you’re burning ... a potent cooked, dead animal odor ... a nasty odor like a dead body . . . obnoxious . . . awful . . . sickening, dead odor . . . very bad, offensive odor . . . foul, stinking odor . like rotten flesh . . . make my wife and little girl sick caused my wife to vomit . . . you cannot stay outside when they hit . it will drive you in the house can’t entertain outside ... no barbecues, no watermelon cuts . . . it’s embarrassing if company is present . you never know when it will hit . . people come out [about buying my house] and this odor appears and they say, ‘well, just forget it’ . gradually built up to worse and worse . . . gradually built up worse since Texas Pet Foods Company is running it.”

This recitation is only a summary of the proof. A complete review of the record shows an abundance of evidence supporting the trial court’s order.

The defendant argues that the State’s proof was limited to past acts without any proof of probable recurrence, and that for this reason the evidence is insufficient to support the temporary injunction. We disagree.

It is true that past and discontinued acts will not support injunctive relief if there is nothing to indicate a probability that they will recur. 31 Tex.Jur.2d 69, Injunctions, § 22. However, where, as here, the proof shows that the activity complained against would support relief and has been a settled course of conduct by the defendant continuing to or near the time of trial, the courts may assume that it will continue absent clear proof to the contrary and issue the injunction. This rule was recognized in the case of Alamo Title Company v. San Antonio Bar Association, 360 S.W.2d 814 (Tex.Civ.App. — Waco, 1962, writ ref., n. r. e.), an unauthorized practice of law case, wherein this court said [at p. 817], “In view of appellant’s course of operation as shown by the evidence, notwithstanding appellees’ efforts to terminate it amicably, injunction was not precluded by the fact that Brown [appellant’s lawyer-agent] had become incapacitated and had retired from law practice; that under prospect of impending litigation there was a declared resolve to abandon former practices; or that during trial there was announced renunciation of conduct, assurance of non-resumption, intention to refrain, or alteration of plans.”

Our record supports the trial court’s determination that without the injunction, the defendant’s violations of the statutes in question will continue.

b. vagueness

The decretal portion of the order is broken into three paragraphs. The first enjoins the emission into the atmosphere of odors or matter “in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation or property or as to interfere with the normal use and enjoyment of animal life, vegetation or property.” The second enjoins violations of the provisions of pars, (a) and (b), sec. 4.01, of article 4477-5, and par. (b), sec. 4, of article 4477-6. The third enjoins operation of the defendant’s plant until the defendant complies with twelve enumerated requirements.

Rule 683, Vernon’s Tex.Rules Civ.Proc., requires every order granting an injunction to “be specific in terms” and “describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained.” The defendant challenges each injunctive paragraph of the order, contending that none satisfy the specificity required by Rule 683. It says that a determination of what is an offending odor within the first paragraph will vary from person to person, depending upon the degree of hypersensitivity or callousness of the individual, and that the requirement is therefore nebulous and uncertain. It asserts that the reference to statutes upon which the second decretal paragraph is based is patently void for lack of preciseness. And it argues that “many of the twelve requirements [in the third paragraph] are likewise void for lack of definiteness such as ordering the defendant to level a field without stating what degree of slope or what is denoted by the term ‘level’, ordering him to repair the injection pump, and ordering him to repair all trailers and vehicles without specifying what repairs, and ordering the defendant to operate all odor abatement and waste water treatment equipment according to the manufacturer’s specifications without stating what the specifications are or whether they are written or oral.” We overrule these contentions.

In San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 702 (1956), our Supreme Court said, “ ‘An injunction decree must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing’ . . . But obviously the injunction must be in broad enough terms to prevent repetition of the evil sought to be stopped, whether the repetition be in form identical to that employed prior to the injunction or (what is far more likely) in somewhat different form calculated to circumvent the injunction as written. And obviously, too, the decree cannot prejudge new situations, which were not before the court in the first instance, whether prejudging them as nonviolations or violations of its general terms. Nor should it be greatly concerned with rights of the defendants that are asserted largely in the abstract. Otherwise it would probably take longer to write the decree than it would to try the case, and the injunction might well become unintelligible and self-destructive.”

The identical attack of vagueness made by the defendant against the definition of “air pollution,” upon which the first two injunctive paragraphs are based, was made and rejected in the case of Houston Compressed Steel Corp. v. State (Tex.Civ.App.— Hou. 1st, 1970, no writ hist.), 456 S.W.2d 768, 774. The Court said:

“Until 1967 the basis of our laws regarding pollution was the nuisance doctrine, but the emphasis of our newer statutes is on regulatory standards. The science of air pollution control is new and inexact, and these standards are difficult to devise, but if they are to be effective they must be broad. If they are too precise they will provide easy escape for those who wish to circumvent the law. Air pollution is defined in Sec. 1.03(3) of the Act: ‘ “Air pollution” means the presence in the atmosphere of one or more air contaminants or combinations thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation or property, as to interfere with the normal use and enjoyment of animal life, vegetation or property.’ This definition is clear and is easily capable of understanding.”

The definition of “air pollution” in the Texas Clean Air Act upon which the first two paragraphs of the injunction are based is not unlike the terms of the ordinance challenged as vague in Ex parte Hunter (1945), 148 Tex.Cr.R. 462, 188 S.W.2d 162, which prohibited the keeping of “any animal, fowl or bird which by causing frequent or long continued noise shall disturb the comfort and repose of any person in the neighborhood thereof.” The court said, “We are unable to sustain the relator’s contention that the ordinance is indefinite in that it does not define what is meant by ‘frequent or long continued noise,’ ‘comfort and repose,’ and ‘neighborhood.’ Such terms are of general use and may be understood.” The court went on to say that citizens are entitled to protection from discomforting noises “to such extent that normal, reasonable persons may enjoy rest and the comforts of home.”

The first paragraph of the injunctive order and the statutes upon which it is based are not impermissibly vague. By force of their terms, contamination of the air is prohibited that adversely affects and is injurious to human health and property and that interferes with the normal use and enjoyment of property. In view of the broad range of the subject matter, the standard prescribed and the activity proscribed can hardly be stated more precisely.

The defendant’s challenge to the second paragraph is based upon the assumption that a reference is made therein to guidelines outside the injunction. This is not so. The order incorporates the statutes which are attached to it and are a part of it. The attachments are part of the order. The order is complete within itself. Rule 683 is not violated. Cases cited by the appellant in which the injunctions do refer the defendant to instruments and statutes dehors the order for standards of conduct are simply not in point.

The third paragraph of the temporary injunction mandates the accomplishment of twelve conditions precedent to the continued operation of the defendant’s plant. The record supports the implied finding that these undertakings are minimum requirements for the prevention of further air pollution by the defendant and resulting injury to neighboring residents. They are set forth in plain, intelligible terms, and, again are as precise as the subject matter permits or requires.

e. status quo and the merits

The defendant argues that the third paragraph enjoining the operation of the plant until the twelve requirements set forth are met destroys the status quo and effectively determines the merits of the dispute. This argument is based upon the erroneous premise that the status quo was “the operation of the plant over a long term [of at least ten years] with the then existing physical equipment, facilities, and conditions.” The status quo to be preserved by temporary injunction is “the last, actual, peaceable, noncontested status which preceded the pending controversy.” Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 553, 261 S.W.2d 549, 553 (1953). This suit was brought to enjoin the asserted emission of unnatural, air polluting odors by the defendant’s plant in violation of state statutes. The status quo, therefore, would be the last operation of the plant which was not violative of the statutes.

Mandatory temporary injunctions have long been considered proper when warranted by the facts of the case. In McMurrey Refining Co. v. State (Tex.Civ.App. — Austin, 1941, writ ref.), 149 S.W.2d 276, 279, the court said that the status quo in actions to enforce a mandatory statutory duty like the one before us “ ‘is a condition of action and not of rest,’ the disturbance of which lies, not in enjoining mandatorily compliance with it, but in failing or refusing to comply”; that this class of cases “has been repeatedly held to constitute an exception to the general rule that temporary injunction may not be resorted to to obtain all relief sought in the main action”; and that “such temporary injunction may be mandatory in character.” Cf. 31 Tex.Jur.2d 85, Injunctions, § 33; and 6 Texas Practice 185, 191, Injunctions and Other Extraordinary Proceedings, §§ 153, 155; and the many cases cited in those references.

The mandatory features of the injunction in question were not improper under the record. They do not amount to a final determination of the case on its merits. No evidence was presented by the defendant to contradict the State’s proof of the cause, nature, and extent of the air pollution and the serious injuries inflicted upon the neighboring residents. Nor is there any proof of another better solution for the temporary abatement or lessening of the pollution than the undertakings required by the court. The record supports the implied findings that these requirements are the minimum necessary to prevent further air pollution by the defendant with more resulting injury to the physical health of the residents, pending the hearing on the merits. All of the requirements fall within the provisions of the statutes and the terms of the defendant’s rendering plant license from the State.

Finally, there can be no doubt that the issuance of a mandatory injunction is permissible by statute in cases of this nature if warranted by the facts. Section 4.04 of Article 4477-5 provides that in any suit brought to enjoin a violation or threat of violation of the Texas Clean Air Act the court may grant “any prohibitory or mandatory injunction the facts may warrant including temporary restraining orders after notice and hearing, temporary injunctions, and permanent injunctions”; and in any injunction suit brought to compel compliance with the Texas Renderers’ Licensing Act, or to restrain any actual or threatened violation of it, provision is made in section 19 of Article 4477-6 for the court to order “such preliminary or final injunction as may be deemed proper.”

d. balancing the equities

On the hearing of the temporary injunction, the defendant tendered proof for the court to consider in “balancing the equities.” This consisted of proof of the cost of the defendant’s plant, the number of its employees, and testimony that several Central Texas poultry processing companies employing collectively over 1,000 persons will cease operating if the defendant is closed. The trial court refused to consider balancing the equities, and error is assigned to this ruling.

The defendant stands charged with violations of state statutes. The same statutes which condemn the activity charged against the defendant also provide for its prohibition by injunction. Under these circumstances, if a continuing violation of the statute is established the rule for the balancing of equities has no application. Red Lake Fishing & Hunting Club v. Burleson (Tex.Civ.App. — Waco, 1949, writ ref.), 219 S.W.2d 115, 118; Gulf Holding Corporation v. Brazoria County (Tex.Civ.App. — Hou. 14th, 1973, writ ref., n. r. e.), 497 S.W.2d 614, 619; Langford v. Kraft (Tex.Civ.App. —Beaumont, 1973, writ ref., n. r. e.), 498 S.W.2d 42, 48; City of Corpus Christi v. Lone Star Fish & Oyster Co. (Tex.Civ.App. —San Antonio, 1960, no writ hist.), 335 S.W.2d 621, 623. As we have shown, the record before us supports the implied findings that the defendant’s operation is a continuing violation of the statutes. The court did not err in refusing to consider the balancing of equities.

The defendant brings forward other points and contentions of error. We have given careful study to every complaint, every argument, every case cited. Under the record as a whole, the order granting the injunction does not constitute an abuse of discretion. It is affirmed.

The Contempt Action

On August 13, 1975, the State filed a motion for leave to file an affidavit with this court to have the defendant and its president, Maurice Werblud, held in contempt for specified violations of the temporary injunction allegedly occurring on and between August 11th and the time of the filing of the motion. Following the granting of the motion the affidavit was filed. A hearing held thereon by this court without a jury on August 21st and 22nd, resulted in factual and legal conclusions (fully set forth in the judgment of contempt separately filed in this case) finding and holding the defendant and Werblud in contempt.

Prior to the hearing, the contemners answered the affidavit, asserting that (1) the injunction was void and would not support a contempt decree; (2) this court did not have jurisdiction to entertain the contempt action; and (3) they were entitled to a jury on the hearing of the question.

Most of the reasons assigned in the con-temners’ answer for holding the injunction void were restatements of the attacks made against the injunction on the appeal, and we shall not further deal with them in this opinion.

The record, including stipulations of the parties, shows that the trial court initially permitted the superseding of the temporary injunction decree. Supersedeas bond was posted by the defendant on July 25, 1975. The injunction order was rendered, reduced to writing, and signed by the trial judge on July 28th. On August 5th, on the State’s motion, the court set aside its order allowing supersedeas. Later, on the same day, the transcript on appeal of the injunction was filed with this court.

Upon the filing of the transcript with this court within twenty days after the rendition of the order granting the temporary injunction the jurisdiction of this Court attached as to that feature of the case. Rule 385, Vernon’s Tex.Rules Civ.Proc.; Crow v. Batchelor (Tex.Sup., 1970), 453 S.W.2d 297. Our Supreme Court held, in Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487, 489 (1934), that under these circumstances, once the appeal is perfected, only the appellate court has the authority to enforce compliance with the injunction. The court said:

“After the jurisdiction of the Appellate Court attached, it alone was clothed with the power to adjudicate the validity or invalidity of the temporary injunction and to exercise the discretion involved in compelling obedience to the injunction pending the appeal, as well as to enforce its own final judgment, unless or until such judgment was subjected to review by a higher court. The district court could exercise no such authority while power to consider and determine these very matters lay exclusively in a higher court.”

This rule was expressly restated and reaffirmed by the Supreme Court in the recent case of Ex parte Conway (Tex.Sup., 1967), 419 S.W.2d 827, 829. Accordingly, we overruled the contemners’ plea to the jurisdiction.

Contempt is of two classes, civil and criminal. Civil contempt is the failure to do what is ordered to be done; criminal contempt is the doing of what has been prohibited. The fine or imprisonment assessed for the former is coercive and remedial; for the latter, the fine or imprisonment assessed is punitive. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966).

From the cases of Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); Dyke v. Taylor Imple ment Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); and Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), we learn:

1. Insofar as an alleged contemner’s right of trial by jury is concerned, criminal contempt is treated like other criminal offenses.
2. Federal constitutional due process (Fourteenth and Sixth Amendments) does not require a jury trial for “petty” criminal offenses.
3. A petty offense is one for which the penalty prescribed does not permit a term of imprisonment of more than six months.
4. In prosecutions for criminal contempt, where no maximum penalty is authorized by the legislature the severity of the penalty actually imposed is the best indication of the seriousness or pettiness of the particular offense.
5. If a maximum penalty is provided by statute for criminal contempt, then that penalty is the’ relevant criterion of the seriousness of the offense.
6. Sentences of up to six months imprisonment for criminal contempt classed as petty offenses may constitutionally be imposed without a jury trial.
7. Where several acts of criminal contempt classed as petty offenses are tried together, the contemner is not entitled to trial by jury if the aggregated punishment imposed does not require imprisonment in jail for a term of more than six months.

In Texas, by legislative fiat, one guilty of contempt in any court other than a justice or municipal court is subject to a fine of not more than $500, or to confinement in jail for any term of not more than six months, or to both the fine and the imprisonment. Article 1911a, Vernon’s Tex.Civ.St. This statute classifies the criminal contempt charges in question as petty offenses. They were triable without a jury, unless the aggregated punishment assessed for all required imprisonment in jail for a term of more than six months. It did not, as is shown by the appended copy of the judgment of contempt rendered by this court.

APPENDIX

JUDGMENT OF CONTEMPT

NOVEMBER 3, 1975

On this 21st day of August, 1975, in the above entitled and numbered cause on the docket of this Court, came on to be heard and considered the affidavit of the State of Texas to have Texas Pet Foods, Inc., and its president, Maurice Werblud, found and held to be in contempt for asserted violations of an order of temporary injunction heretofore rendered by the 54th Judicial District Court of Texas, the validity of which is presently on appeal in this Court; and also came on to be heard and considered the answer to said affidavit; and came Texas Pet Foods, Inc., by and through its president, Maurice Werblud, and by its attorneys of record; and came Maurice Werblud, individually, in person and by and through his attorneys of record; and came the State of Texas, by and through the Attorney General of Texas;

And the Court having considered the pleadings of the parties, the evidence adduced, and the arguments of counsel, and having found and determined that heretofore, on the 28th day of July, 1975, in cause number 75-1571-2 on the docket of the 54th Judicial District Court of Texas, styled The State of Texas vs. Texas Pet Foods, Inc., the following order of temporary injunction was duly rendered in said Court, to wit:

[Editor’s Note: the judgment here sets out the full text of the temporary injunction order. The text appears supra, p. 824, and is not repeated here.]

And the Court having further found and determined that on the 5th day of August, 1975, the appeal of said order of temporary injunction was duly perfected to this Court by Texas Pet Foods, Inc.;

And the Court having further found and determined that on the consecutive days of August 11, 1975, and August 12, 1975, Texas Pet Foods, Inc., and Maurice Werblud, individually and in his capacity as president of Texas Pet Foods, Inc., did knowingly and willfully violate said order of temporary injunction on each of said days (1) by causing the presence of odors in the atmosphere in and around the poultry rendering facility of Texas Pet Foods, Inc., of such concentration and of such duration that they were injurious to and adversely affected human health and welfare and property and interfered with the normal use and enjoyment of property; (2) by failing to repair all holes in the rendering plant structure and completely seal the entire building to prevent the emission of fugitive odors; (3) by failing to seal all product handling systems used in the transfer and processing of by-product materials to assure same are leak and spill-proof; (4) by failing to vent condensor and hot well exhaust gases, vapors and odors directly to the defendant’s venturi scrubber; (5) by failing to remove all raw and processed poultry materials from rendering plant floors, walls, and equipment and thoroughly steam same pri- or to start-up operations and on a daily basis thereafter; (6) by failing to level to the ridge-and-furrow system ditches so as to prevent standing water and assure adequate irrigation of ridge-and-furrow vegetation; (7) by failing to develop, reduce to writing, post in a noticeable plant location, and insist upon employees following, a regular daily cleaning procedure; and (8) by failing to operate all odor abatement and waste-water treatment equipment according to the manufacturer’s specifications;

And the Court having further found and concluded that Texas Pet Foods, Inc., Maurice Werblud are in contempt for said acts of violation of the order of temporary injunction, and that said contemners should be separately punished by a fine of $500.00 for each day of said acts of contempt;

Now, therefore, it is ordered, adjudged and decreed that Texas Pet Foods, Inc., and Maurice Werblud are in contempt of this Court for said separate violations by each of them on said two consecutive days;

It is further ordered, adjudged and decreed that Texas Pet Foods shall be, and it is hereby, punished by a fine of $500.00 for each of said two days of contemptuous acts (totaling $1,000.00); and that Maurice Wer-blud shall be, and he is hereby, punished by a fine of $500.00 for each of said two days of contemptuous acts (totaling $1,000.00); and that the costs of this proceeding shall be, and they are hereby, assessed against said contemners; for which execution may issue;

It is further ordered that a capias shall forthwith issue to any Sheriff within the State of Texas commanding him to arrest the said Maurice Werblud and place him in jail and there safely keep him imprisoned until said fines and said costs are paid; and it is ordered that said capias shall recite generally the proceedings had in this case, and that it shall be accompanied by a certified copy of this judgment to be served upon the said Maurice Werblud as further evidence of the Sheriff’s authority;

And it is further ordered that if said fines shall be satisfied by confinement in jail at the rate provided therefor by law, then they shall run and be satisfied concurrently.

      . These provisions of the Texas Clean Air Act prohibit the emission of any air contaminant or any activity which causes or contributes to air pollution. “Air contaminant” is defined in the Act to mean “particulate matter, dust, fumes, gas, mist, smoke, vapor or odor, or any combination thereof produced by processes other than natural”; and “air pollution” is defined as “presence in the atmosphere of one or more air contaminants or combinations thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation or property, or as to interfere with the normal use and enjoyment of animal life, vegetation or property.”

      . These provisions of the Texas Renderers’ Licensing Act set forth specific requirements which must be followed by renderers, designed to make their operations and processes “sanitary,” to “prevent the spread of infectious and noxious materials,” and to “assure finished products which are free from disease-producing organisms.” Particularly relevant to our case are these requirements: all vehicles used in transporting raw materials shall be leakproof; all raw materials received on the rendering plant premises shall be placed in the rendering process immediately or shall be stored for a period of not more than 48 hours in a manner that will prevent malodorous condition; adequate and suitable means for treatment of cooking vapors shall be provided and operated in such a manner as to control odors; during operations the floors in processing areas shall be kept reasonably free from processing wastes, including blood, manure, scraps, grease, water, dirt, and litter, and the floors shall be thoroughly cleaned at the end of each day’s operation; such equipment and utensils shall be provided as are necessary for the rendering establishment to conduct its operations in a sanitary manner; the immediate premises shall be kept in a clean, neat condition and shall be reasonably free from undue collection of refuse, waste materials, rodent infestation, insect-breeding places, standing pools of water, and other objectionable conditions; and the rendering establishment shall be kept in good repair.

      . It is of interest that in Cheff the contem-ners were tried before a panel of three judges of an intermediate appellate court without a jury.