author: COBBS, Justice. SMITH, Justice.

text:
    MARTIN v. BELL-WOODS CO., Inc., et al.
    No. 8940.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 14, 1932.
    Rehearing Denied Feb. 1, 1933.

      J. Cullen Looney, of Edinburg, for appellant.
    E. A. McDaniel,, of McAllen, and J. C. Ep-person and Carl & Leslie, all of Edinburg, .for appellees.
   COBBS, Justice.

Appellant filed this suit against appellees for the rescission of a contract for the sale of land and the recovery of money paid on the contract, with interest. This is a fraud case.

Plaintiff alleged: “That defendants induced him to come to Hidalgo county, Texas, for the purpose of inspecting citrus lands and that said plaintiff, upon the inducement of said defendants, did come to Hidalgo county, Texas, and became interested in the purchase of a certain tract of land known as lots nine (9) and ten (10) in the southeast quarter of sectiqn nine (9) of the Hidalgo County Canal Company’s Subdivision in Hi-dalgo county, Texas. That the defendants represented to him that said land was of a value of $2,500.00 per acre with young citrus trees set on the same; that he was unfamiliar with the value of Hidalgo county land but relied upon said defendants and believed said representations and was thus induced to purchase said tract of land and that he paid to said defendants the sum of $3,289.00 in cash and further agreed to pay the total consideration of $38,815.00,- said consideration 'being based upon 22.13 acres of land at the price of $1,750.00 per acre. The plaintiff further alleged that the defendants could not give clear title to more than eighteen acres of said land although they had fraudulently misrepresented that they could give a clear title to the entire acreage above stated, that is, 22.13 acres of land. -That at the time the plaintiff was induced to enter into said- contract there was situated upon said tract of land -buildings of the value of approximately $2,000.00, and that defendants had wrongfully and without his consent, removed said buildings from said tract of land prior to the date set for the closing of the deal for the purchase of the same. Plaintiff further -alleged that the defendants had agreed to set out a total of one thousand two hundred fifty citrus trees on said tract of land being sixty trees per acre, but had failed to do so but on the contrary had set out only one thousand forty-five trees, and that defendants had agreed to set out date palms around the boiv der of said tract of land! but this also the defendants failed to do. The plaintiff prayed that the contract be rescinded and all notes given by him in pursuance of said contract also be cancelled; that he have his damages and that an equitable vendee’s lien on said tract of land be foreclosed as against all defendants having an interest therein in order to secure him in the payment of the judgment.”

Default judgment was entered against M. L. Woods and Bell-Woods Company because of the failure of said defendants to appear and answer.

The plaintiff filed his first amended original petition in the cause, to which defendant George Earnhardt demurred, and it was sustained by the court; the court holding that the cause of action set forth in the first amended original petition was -based partly upon contract and partly upon tort, and would therefore have to be plead in two- separate counts, to, which action of the court the plaintiff excepted, but, in obedience to the ruling of the court, amended and filed his second amended original petition, setting out his cause of action in two separate counts. The pleading is too lengthy to copy.

At the conclusion of the trial, the court gave its peremptory instruction in favor of plaintiff, Joseph Martin, against the defendant, Boll-Woods Company, for the sum of $3,289, together with interest on $250 from April 17, 1929, and on $750 from May 23, 1929, and interest on $2.2S9 from June 27, 1929, at the rate of G per cent, per annum, and also instructed the jury to return a verdict in favor of the defendants George Earnhardt, L. R. Bell, and M. L. Woods, and against the plaintiff, Joseph Martin; and the jury returned a verdict in accordance with the peremptory instruction given to them by the court.

The court entered judgment upon said verdict of the jury on the 10th day of February, A. D. 1932, that the plaintiff, Joseph Martin, have and recover of and from the defendant, Bell-Woods Company, Inc., the sum of $3,824.17, together with interest thereon from February 10, 1932, at the rate of 6 per cent, per annum, and further decreed that the plaintiff, Joseph Martin, take nothing as against the defendants, George Earnhardt, L. R. Bell, and M. L. Woods.

We think the court erred in sustaining an exception to the pleading and requiring the appellant to file an amendment, because under the practice in Texas a pleading of tort and for damages may be properly joined in the same suit, when they grow out of the same transaction and 1'elate to each other. ■

We think the court erred in excluding from the evidence the photographs marked for identification, 9 GEB, 10 GEB, 11 GEB, ■ and 12 GEB, -because they were material upon the issue of the suitability of the land in question for citrus culture.

Joseph Martin was entitled to a judgment against M. L. Woods for the amount determined. Said original petition stated a cause of action for damages sustained. Appellant had been induced to part with his money, because of false representations made to him by defendants in regard to the suitability of the land for citrus culture, but before he discovered that such representations' were false, the defendants breached the contract which had been induced by their fraud, and, because of such breach, the plaintiff refused to go ahead with the contract.

The plaintiff, having testified that the defendants, M. L. Woods, L. R. Bell, and especially George Earnhardt, made representations to him in regard to quality, acreage, value, and title of a tract of land, and induced him to part with money, relying upon such representations, and then introduced testimony tending to show that such representations were false, he raised a question of fact for a jury, as the law holds all persons accountable in damages who make fraudulent representations as to the subject-matter of a sale, regardless of any contractual or legal relationship among the defendants, or between the plaintiff and the defendants.

As to the land, it was represented that this particular land was as good as any in the valley for citrus growing and better than any in Florida, and “that you could dig fifteen feet down and the land was just as good fifteen feet down as it was on top.”

As said in Hawthorne v. Walton (Tex. Civ. App.) 30 S.W.(2d) 397, 399: “Conspiracies are conceived and concluded in secret.” The unlawful acts committed taken together may be looked to as showing a common intent. 12 R. C. E: 400.

While a default judgment does not admit that the petition is good, yet, nevertheless, in this ease under the authority pf Stewart v. McAllister (Tex. Civ. App.) 209 S. W. 704, the original petition filed herein did state a cause of action, and was good against a general demurrer. The amount of damages was clearly shown by uncontradicted evidence to be the sum of $3,289, with interest thereon as allowed by law, and the court erred in giving its peremptory instruction to the jury to find in favor of defendant M. E. Woods, in spite of his default. The default judgment was entered upon the original petition, and such interlocutory judgment became final upon proof of the amount of the damages sustained by the appellant. He was entitled to judgment against defaulting defendants after he established the amount paid out by him by evidence.

It is stated in 39 Cyc. 2031, that: “The rule which has obtained for many years in this county and in England is that the purchaser of land by an executory contract, where the contract fails by reason of the vendor’s default and without any fault of the purchaser, is entitled to a lien upon the land for the repayment of what he has paid under the contract.”

It was shown that citrus trees would not grow on water-logged or seeped land.

A careful review of the. testimony in this case makes it very apparent that it is a fact case, one entirely for a jury, and the court erred in directing an instructed verdict.

The plaintiff’s cause of action is based upon fraud and misrepresentation, for the defendants obtained his money by such means. The judgment against Bell-Woods Company should be reformed so as to allow him the foreclosure of his vendee’s lien. asserted against the property in controversy; and the judgment denying appellant any relief, in so far as the defendant M. L. Woods is concerned, should be reversed and judgment rendered in favor of appellant for the sum of $3,824.17, together with interest thereon from February 19, 1932, at the rate of 6 per cent, per annum until paid, and a vendee’s lien established and foreclosed against the property in controversy, in favor of appellant and against appellee M. E. Woods. The judgment rendered in this cause against appellant, and in favor of defendants George Earnhardt and L. R. Bell, is reversed, and the cause remanded.

On Motion for Rehearing.

SMITH, Justice.

In the judgment appealed from, Joseph Martin recovered against Bell-Woods Company, but was denied recovery, following a directed verdict, against the other defendants, M. L. Woods, L. R. Bell, and George Earnhardt. In the original disposition in this court, the judgment in favor of Martin was enlarged to embrace Woods, and the establishment and foreclosure of a lien against all the parties, upon the land in controversy, while the judgment in favor of Earnhardt and Bell was reversed and remanded. Earnhardt and Woods have filed motions for rehearing. We conclude that our judgment must be revised.

The record shows conclusively that Martin and the Bell-Woods Company entered into at least an option contract by which the former was to purchase from the latter the tract of land involved. In pursuance of the contract Martin paid $3,239 of the agreed purchase price for the land, after which all parties in effect agreed to set aside and abandon the contract. In such case Martin was entitled as a matter of course to the return of his money.

It was alleged, and proof was offered to show, that Martin was induced to enter into the contract and pay over the money through false and fraudulent representations of the individual defendants, and one Mickleberry, who was not impleaded, although the chief offender in the alleged conspiracy. Bell-Woods Company and its president, M. D. Woods, failed to answer the suit, and in due course judgment by default was rendered against both of them, and the cause continued for the term against the other defendants. Subsequently, after a trial on the mer- • its, the jury were directed, and judgment was rendered, as shown above.

The judgment by default was rendered against Bell-Woods Company and Woods on Martin’s original petition, whereas the cause was tried on its merits upon his second amended original petition, which was apparently but an elaboration of the original. The allegations in the latter were quite general, but in the absence of exceptions they appear to be sufficient to warrant the judgment prayed for, and therefore that judgment as against the Bell-Woods corporation, which has not appealed, should be affirmed.

But the judgment concerning Woods is in quite a different situation. Woods never appeared in the suit. He filed no pleading, no motion to set aside the judgment rendered by default against him, took no cognizance of the suit. But at the conclusion of the trial the court upon its own motion in effect set aside that judgment, and proceeded to direct a verdict and render judgment in favor of Woods. There is no affirmative explanation of this ruling of the trial judge, but we assume it was made upon the conclusion of the judge that the evidence, or the change in the pleadings and the substitution of the second amended original petition for the original, freed Woods from liability. In any event, we have concluded that this court is not warranted in rendering judgment against Woods in the face of the record and of the trial court’s action.

So do we conclude that the question of the liability of the other individual appellees rests upon the facts, which should be resolved by the trial judge, or by the jury, if the evidence conflicts.

It is clear, too, as held in the original disposition, that appellant was entitled to a decree establishing and foreclosing his equitable lien upon the real estate in controversy ■ against Bell-Woods Company to secure payment of his judgment against that corporation, which judgment is affirmed.

We think it proper to withdraw the holding, expressed in the original opinion, that a plaintiff may combine in one count an action to rescind a contract for the sale of real estate and one for damages for fraud in procuring such contract. The two actions may be joined in one suit, but they should be in separate counts, and therefore the trial court did not err in requiring appellant to amend and segregate the two actions.

The former judgment of this court will be set aside, and it is now ordered that the judgment of the trial court in favor of the individual defendants be set aside and the cause remanded for further proceedings between appellant and said parties; that the judgment in favor of appellant against Bell-Woods Company be affirmed; and that judgment be here rendered establishing and foreclosing the lien asserted by appellant upon the land in controversy in satisfaction of said judgment against Bell-Woods Company. The costs of appeal will be taxed against appel-lees. All motions for rehearing will be overruled.

Affirmed in part, reversed and remanded in part, and reversed and rendered in part.


source: Caselaw Access Project

author: HICKMAN, Chief Justice.

license: Public Domain

text:
    RECLAMATION CO. v. WESTERN BROKERAGE & SUPPLY CO., et al.
    No. 1002.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 23, 1932.
    Rehearing Denied Feb. 24, 1933.

      Turner, Seaberry & Springer, of Eastland, for appellant.
    Scott W. Key, of Eastland, and L. E. Richardson, of Lon’gview, for appellee.
   HICKMAN, Chief Justice.

This is the second appeal of this case; the former being reported in 293 S. W. 194. Appellant originally brought suit against A. C. Simmons, C. W. Hoffman, and K. F. Page; as partners doing business under the trade-, name of Western Brokerage & Supply Company, upon a series of notes signed “Western Brokerage & Supply Company, by A. O. Simmons.” These notes were excuted after Hoffman and Page had withdrawn from the partnership, and in their answer they alleged the fact of their withdrawal from the firm prior to the execution of the notes, and pleaded non est factum as to the notes. Appellant, by supplemental pleading, alleged that the indebtedness represented by the notes was incurred prior to their withdrawal, and that, if they were not liable on the notes, they were liable, jointly and severally, with Simmons on the account. To this pleading of appellant the appellees, Hoffman and Page, by supplemental answer, pleaded, among other defenses, the payment or novation of the account by the acceptance of the notes. They further pleaded an estoppel, the nature of which will be more fully stated hereinafter.

On the first trial appellants took nothing as against Hoffman and .Page, from which judgment an appeal was prosecuted to this court. On that appeal this court held, as reflected by its opinion, that the evidence did not support the defense of novation. The ca se was remanded upon a cross-assignment of ap-pellees complaining of the ruling of the trial court in sustaining a special exception to their plea of estoppel.

After the case was remanded, appellant recast its pleadings, alleging its final judgment against Simmons and the company and its inability to collect same, and again declared on the open account against Hoffman and Page. Said defendants filed an amended answer, again pleading, among other defenses, novation and estoppel. Many special issues were submitted to the jury, and upon the answers to these various issues judgment was rendered, as upon the first trial, that appellant take nothing, from which judgment this appeal is duly prosecuted. It is the position of appellees that the evidence and the verdict of the jury support both their plea of novation and their plea of estoppel, and that the judgment should be sustained on one or both of these grounds.

The first question presented complains of the action of the trial court in submitting any defense except that raised by the plea of estoppel. The claim is that, by our original opinion and the mandate from this court to the lower court, the cause was remanded with instructions limiting the authority of the district court upon retrial to the issue of estoppel, as pleaded by appellees, and the further issue pleaded by appellant of an estoppel against appellees to plead estoppel. This assignment is overruled. The judgment entered by this court upon the former appeal was one reversing the judgment of the trial court generally, and neither by that judgment nor by our opinion did we limit the trial court to the submission of any particular issues upon retrial. This question, and the kindred question raised by the second assignment of error, that our holding on the former appeal became the law of the ease on the question of novation, are rendered of no importance by the views adopted upon this appeal, as reflected hereinafter, wherein we hold that the p-resent record does not support the defense of novation.

On the defense of novation there is but slight difference between the evidence as presented in this record and that before us on the former appeal, as reflected by our former opinion. Hoffman and Page withdrew from the partnership under an agreement with Simmons that they would turn over to Shim all of the assets of the firm in consideration that he pay off all of the firm’s indebtedness, including that owing to the partners as accrued profits and otherwise. After this withdrawal they informed one Ross, a representative of appellant, of their agreement with Simmons, and later were informed by Ross that one Marshall, appellant’s general manager, had stated that appellant was not looking to them for the payment of said account, but was looking alone to Simmons for the payment thereof. Still later appellant placed the account in the hands of its attorney, George Thompson, Jr., of Port Worth, for collection. As a result of his negotiations with an attorney representing the Western Brokerage & Supply Company, the notes above mentioned were executed by “Western Brokerage & Supply Company, by A. C. Simmons.” The record contains copies of letters and telegrams from Thompson to appellees, and also to appellant, which correspondence, appellees claim, discloses that it was the intention of appellant on the acceptance of said notes to substitute the obligation thereof for the obligation of the account, and thereby release Hoffman and Page from any liability. The strongest evidence supporting this contention which we have discovered from the correspondence consists of the fact that S per cent, interest on the account was added to the face thereof, and notes executed for the amount of the account, plus 8 per cent. There is also to be found this statement in a letter written by Mr. Thompson to the Western Brokerage & Supply Company after one of the notes had become past due and unpaid: “You will recall that your attorney made a proposition to us that if we would permit the account to be paid, part in cash and part by these notes, the notes, when due, would promptly be taken care of.”

In considering the question of whether or not Hoffman and Page have been released from their obligation to pay the account in suit, it is well to keep in mind that they and Simmons wefg jointly and severally liable for the entire amount of the account at the time same was incurred, and appellant, by promising to look alone to Simmons for the payment thereof, did not increase Simmons’ liability, or procure any additional security for the indebtedness. Its promise amounted to no more than a voluntary relinquishment of the liability of two of its debtors. It is the settled law of this state that an agreement between the retiring and remaining members of a partnership, that the latter will pay the debts owing by the partnership, is not binding upon the creditors of the partnership, unless such creditors are parties to the agreement for a consideration. In the case of White v. Boone, 71 Tex. 712, 12 S. W. 51, 52, it is stated: “Such an agreement would be binding between the parties themselves only, unless creditors became parties to the agreement for a consideration.”

This language was quoted with approval and reaffirmed in an opinion by Justice Brown in the case of Shapleigh Hardware Company v. Wells, 90 Tex. 110, 37 S. W. 411, 59 Am. St. Rep. 783. The statement made to appel-lees by Ross to the effect that Marshall, the general manager, had stated to him (Ross) that he was not looking to appellees for the payment of the account, but to Simmons alone, if construed • as an agreement to release Hoffman and Page from liability, is clearly lacking in consideration; an essential element of all valid contracts. A release of appellees cannot be predicated upon that agreement.

But it is contended that the acceptance of the notes under the circumstances evidenced an intention on the part of appellant to substitute the obligation of the notes for the obligation of the account so that suit could no longer be maintained upon the account, and that the surrender or payment of the account constituted the consideration for the notes. A novation by this means is never presumed, but must be established either by an express agreement or by acts which clearly establish an intention to discharge the obligation of the original debt. There is no contention that there was any such express agreement either between appellant and Simmons, or between appellant and appellees. On the contrary, the evidence discloses that ap-pellees were not aware of the ■ existence of the notes until some months after their execution. Do the acts of the parties clearly evidence'an intention on the part of appellant to voluntarily release appellees from their obligation and substituid therefor only the unsecured obligation of Simmons, who was already bound for the full amount of the debt? Our conclusion from this record is the same as on the former appeal; they do not. We are confirmed in our opinion as expressed on the former appeal, not alone by the fact that appellees’ application for a writ of error was refused in that case by the Supreme Court, but also by a decision rendered by that court since that time in the case of Cooper Gro. Co. v. Strange, 18 S.W.(2d) 609. The facts in that case, as detailed in the opinion by the Court of Civil Appeals at Waco, reported in 4 S.W.(2d) 232, more strongly- evidence that intention than do the facts of the instant case. The Waco court, speaking through Chief Justice Gallagher, groups tlieSe facts and arrives at the conclusion that they were sufficient to raise the issue of novation. The trial court had refused to submit the issue, and a reversal of its judgment was ordered. A writ of error was granted, and the Supreme Court held that the facts were not sufficient, as a matter of law, to raise the issue of novation. For equal, if not greater, reason we hold that the facts in the instant case presented no issue of novation for the jury’s determination.

There is a more impelling reason than the above why the defense of novation is not available to appellees; but, as it is based upon facts discussed later in the opinion in connection with other defenses, it can be better understood following that discussion. We shall therefore again refer to the question of novation at the end of this opinion.

This brings us to the defense of estoppel pleaded by appellees. This plea was based, in brief, upon the following allegations: (1) Knowledge on the part of appellant that ap-’ pellees had withdrawn from the firm under , agreement with Simmons, whereby they surrendered to him all of the firm assets in consideration that he pay all of the firm debts; (2) the request that appellant take immediate steps to make collection from Simmons; (3) agreement by appellant to look only to Simmons for the payment of the account, thereby lulling appellees into a sense of security and preventing them from instituting receivership proceedings for their protection ; (4) an agreement by appellant with Simmons that the latter should execute notes in lieu of the account, which agreement was consummated; and (5) appellant’s delay in bringing suit until Simmons had dissipated the firm assets.

On the former appeal we reversed the judgment of the trial court on a cross-assignment complaining of its action in sustaining a special exception to this pleading, thereby holding that an estoppel in pais was pleaded. A reconsideration of the question has convinced up that we were correct in that holding. The promise to look only to Simmons was without consideration to support it, and could not therefore be enforced as a contract of release or novation. The general rule is that estoppel cannot be based upon promises concerning the future, but that such promises, if binding at all, must be binding as contracts. 21 C. J., p. 1142, § 144.

“However, a well recognized exception to the rule is presented where the statement relates to an intended abandonment of an existing right, and is made to influence others who have, in fact, been influenced by it. * * * ” Id., § 145.

This exception is recognized by our Supreme Court in Edwards v. Dickson, 66 Tex. 614, 2 S. W. 718. We have not access to all the cases cited in support of the text above quoted, but the available ones clearly support it. The record, as it comes to us on this appeal, contains evidence which would support this plea as a defense to appellant’s cause of action but for the existence of other facts pleaded and established by appellant, next below discussed.

On August 1, 1922, about the time ap-pellees were withdrawing from the partnership, a financial statement showing the assets and liabilities of the partnership was prepared. This statement showed an indebtedness owing by the partnership to appellee Hoffman of approximately $3,000. The statement further showed that Simmons was credited with profits of $5,698.65, Hoffman with $4,383.60, and Page with $876.71. These items were carried in the list of liabilities. The jury found upon sufficient evidence that the agreement between the partnership upon dissolution, of which agreement appellant had knowledge at the time it agreed to look only to Simmons, was that Simmons would pay all of the indebtedness of the firm, including that owing to Hoffman and Page. Pursuant to that agreement, Hoffman and Page, after the dissolution, collected from the partnership, by accepting easing and other materials, the full amount to which they were entitled under this statement, including their accrued profits. Had this been the extent of the assets which were withdrawn from the firm and delivered to Hoffman and Page, the evidence and findings would support the conclusion that appellant agreed to this arrangement, and could not therefore be heard to complain thereof. But the evidence discloses that ap-pellees withdrew from the assets of the firm property in value greatly exceeding the amount owing to them, including their accrued profits. The partnership, in conducting its affairs, would, from time to time, loan casing to oil operators under contracts whereby the value of the use of the casing was paid by assignments of interests in the wells in which the casing was used. In one instance the partnership purchased a royalty interest in a well. These interests in wells were as much a part of the assets of the partnership as were the materials in the yard. Assignments of these interests were usually taken in the name of Simmons, but each member of the partnership owned an interest therein in proportion to his interest in the partnership. After the dissolution Simmons assigned to Hoffman and Page their interests in these various wells. It is not contended, nor would the evidence support the contention, that appellant had any knowledge that these interests were to be withdrawn from the firm assets at the time it promised to look only to Simmons. The value of these interests so transferred to Hoffman and Page exceeded the amount of appellant’s claim. This state of facts - renders appellees’ plea of es-toppel unavailing. In justification of appel-lees’ action, it is proper to state that the record does not warrant the conclusion that they intentionally misled appellant. They seemed not to have regarded these interests in- wells as a part of the partnership assets. They were, in fact, a part thereof, and however innocently appellees may have made the statement to appellant that Simmons was to take over all of the assets and pay all the firm debts, the fact remains that a substantial portion of the assets represented by these interests in wells were, under the agreement with Simmons, not to be taken over by him, and pursuant to that agreement were actually withdrawn. In’ this situation the doctrine of estoppel against estoppel applies. One who has been misled by the party pleading estop-pel, and who thereby acts in ignorance of the facts, is not estopped. A terse statement of the rule is, “An estoppel against an estoppel sets the matter at large.” Turner v. Ferguson, 58 Tex. 6; Knox v. Brown (Tex. Com. App.) 277 S. W. 91; Lasater v. Premont (Tex. Civ. App.) 209 S. W. 753; Fitch v. Lomax (Tex. Com. App.) 16 S.W.(2d) 530, 66 A. L. R. 758; Wright v. Bonta, 19 Tex. 385; 17 Tex. Jur., 138; 21 C. J., p. 1110, § 109; 10 R. C. L., p. 841, § 146.

There is another established rule of law pleaded and relied on by appellant which would operate to render appellees personally liable for the account sued on. The effect of the contract of dissolution between appelleeá and Simmons was that the debts owing by the partnership should be satisfied out of particular property, the assets of the partnership. This contract inured to appellant’s benefit, and it is entitled to enforce same. As above noted, the value of these interests in wells exceeded the amount of appellant’s claim. Appellees, having agreed that appellant’s debt should be satisfied out of property left in the possession of Simmons, and having thereafter appropriated a portion of that property of greater value than appellafit’s claim to their own use, should be held personally liable for the payment of appellant’s claim. Johnson v. Patterson (Tex. Civ. App.) 33 S. W. 1038; Acme Brick Co. v. West (Tex Civ. App.) 215 S. W. 476.

We stated above that we would return to the question of novation at the end of our opinion. We shall now consider the effect of the facts abovfe detailed upon that question. The evidence shows that appellant would not have accepted the notes had it not relied upon the representations of appellees that they had turned over all the firm assets to Simmons. Appellees cannot rely upon the contract of novation when their own misstatements, however innocently; made, .-induced the contract. The jury -findings .that appellant would have accepted the notes had it known that appellees had received these interests from Simmons must be disregarded for two reasons: First, they rest upon conjecture without support in the record; and, second, they are immaterial. The rights of the parties must rest, not upon the contract appellant might have made if it had known the facts, but upon the contract it did make; not upon what appellant might have done, but upon what it did. It acted in ignorance of the facts, and this consideration forbids the conclusion that the minds of the parties met on a contract of novation.

There is no reason to remand this case for another trial. It appears to have been fully developed, and should be terminated. It is therefore our order that the judgment of the trial court be reversed, and judgment here rendered for appellant in accordance with its petition.

FUNDERBURK, J., disqualified, and not sitting.


author: SMITH, Justice.

text:
    BELSER v. ACHLEY et al.
    No. 8997.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1933.
    Sidney P. Chandler and J. Marvin Erickson, both of Corpus Christi, for appellant.
    H. Alston Terry, of Corpus Christi, for ap-pellees.
   SMITH, Justice.

This appeal is predicated upon the contention that the trial judge, opposing eoun-sel, and one of the jurors were guilty of misconduct upon the trial. The transactions complained of are presented in part hy a bystanders’ bill of exceptions, but there seems to be no material differences between the several versions of those transactions. Appellees have filed no brief in the case.

In his fourth proposition appellant complains of certain statements made by counsel for appellees in his argument to the jury. The record shows, however, that appellant withdrew his objections to that argument when the trial judge offered to direct the jury- to disregard the same. The proposition is overruled.

The remaining propositions relate to the following transaction: An apparently officious juror, one Pratt, left his fellows in the jury room adjoining the courtroom and, approaching the trial judge on the bench, told him, in the presence of counsel for both parties, that the jury were unable to agree, and asked him “if they could throw it (this case) out,” to which the court orally replied that “they would have to find for plaintiff or for the defendants.” The juror then repeated the statement that the jury were unable to agree, and said “they want to know if they can throw it out.” At this juncture counsel for appellee, then and there present, requested the judge to “tell him (meaning the- juror) what the result of throwing the case out would be”; but the judge declined, and again informed the importunate juror that the jury would “have to find for the plaintiff or for the defendants.” The juror then retreated, rejoining his fellows in the jury room. The record does not satisfactorily disclose whether the remaining jurors saw or heard the colloquy between Juror Pratt and the trial judge, or what was said by Pratt upon his return to the jury room. Appellant complains of this transaction as being in violation of the provisions of article 2198, It. S. 1925, as follows: “After having retired, the jury may ask further instructions of the court touching any matter of law. Por this purpose they shall appear before the judge in open court in a body and through their foreman state to the court, either verbally or in writing, the particular question of law upon which they desire further instruction; and the court shall give such instruction in writing, but no instruction shall be given except in conformity with the preceding rules and only upon the particular question on which it is asked.”

We are of the opinion that the incident in question requires a reversal of the judgment. It is obvious that the learned trial judge, conscious of the dignity and sanctity of his position, rightly sought to free the incident of all possibility of injury and prejudice, with-, out harshly rebuffing the offending, juror, who, nevertheless, should have been instantly reprimanded, ordered to rejoin his fellows, and admonished -to better observe the proprieties of his position. But, under the authorities, and in deference to the requirement of the statutes and the demands of a sound public policy, we are obliged to hold that the incident in question came clearly under the condemnation of the law, and any verdict bearing the taint of that proceeding should be set aside. Texas Midland Ry. Co. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137; Parker v. Bailey (Tex. Com. App.) 15 S.W.(2d) 1033; Smith v. Harris (Tex. Civ. App.) 252 S. W. 836; Holman v. Cusenbary (Tex. Civ. App.) 225 S. W. 65; Lorenzen v. Keenan (Tex. Civ. App.) 266 S. W. 839; Humble Pipe Line Co. v. Kincaid (Tex. Civ. App.) 19 S.W.(2d) 144; Texas Employers’ Ins. Ass’n v. Adcock (Tex. Civ. App.) 27 S.W. (2d) 363.

Reversed and remanded.


author: ALEXANDER, Justice.

text:
    BEAVER v. BEAVER.
    No. 1439.
    Court of Civil Appeals of Texas. Waco.
    Feb. 9, 1933.
    H. E. Chesley, of Hamilton, for appellant.
    Robert W. Brown, of Gatesville, for appel-lee.
   ALEXANDER, Justice.

This case is before the court on motion of appellee to affirm on certificate because of the failure .of appellant to file the transcript within the time provided by law. The record discloses that the trial court rendered final judgment on August 1, 1932. Appellant’s motion for a new trial was overruled on the 24th day of August, 1932, at which time notice of appeal was given. On the 15th day of September, 1932, appellant perfected her appeal by filing the statutory affidavit in lieu of an appeal bond. The time within which the transcript should have been filed in the Court of Civil Appeals expired October 23, 1932. Revised Statutes, article 1839, as amended in 1931 (Vernon’s Ann. Civ. St. art. 1839). Appellee filed his' motion to affirm on certificate January 17, 1933, during the term to which appellant’s appeal was returnable.

Under the provisions of Revised Statutes, article 1841, thei appellee is entitled to have the judgment of the trial court affirmed. Article 1841, Revised Statutes; 3 Tex. Jur. 737; Scottish Union & Nat. Ins. Co. v. Clancey, 91 Tex. 467, 44 S. W. 482; Snelling v. Security Trust Co. (Tex. Civ. App.) 288 S. W. 241; Burton v. Sells (Tex. Civ. App.) 202 S. W. 357; Wagley v. Wagley (Tex. Civ. App.) 1 S.W.(2d) 917; Dandridge v. Masterson, 105 Tex. 511, 152 S. W. 166; Woodfin v. Hulen (Tex. Civ. App.) 13 S.W.(2d) 390.

The motion to affirm on certificate is granted, and the judgment of the trial court affirmed.


author: MURRAY, Justice.

text:
    McDANIEL v. COUCH, County Judge, et al.
    No. 9148.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 8, 1933.
    Cecil R. Fulton, I). E. Thrasher, and R. M. Bounds, all of McAllen, for appellant.
    F. G. Clay, of McAllen, for appellees.
   MURRAY, Justice.

This ease was instituted in the Ninety-Third district court of Hidalgo county, Tex., by E. A. McDaniel, plaintiff below, appellant here, against E. C. Couch, county judge, B. F. Byers, E. L. Calhoun, Willard Ferguson, and W. H. Atwood, as county commissioners, F. W. Lemburg, county clerk, C. H. Pease, county treasurer, and Chas. D. Turner, county auditor, all of Hidalgo county, Tex., defendants below, appellees here, suing each of said defendants below in their respective official capacities, and also suing their successors in office as such; the suit being filed on the 29th day of December, A. D. 1932.

The suit was for a mandamus to compel the county auditor, "the county clerk, and the county treasurer to issue proper scrip and pay the claim out of the general fund of Hidalgo county, Tex.

Upon presentation of the plaintiff’s-'petition to the court, the Honorable Chas. E. Thompson, the then judge of said Ninety-Third district court of Hidalgo county, Tex., issued a temporary restraining order on the 29th day of December, A. D. 1932, restraining the county commissioners, the county auditor, the county clerk, and the county treasurer from paying moneys out of the general fund of Hidalgo county, Tex., or diverting the moneys in said general fund to an extent that it would reduce said fund below an amount sufficient to pay the claim of appellant,' plaintiff below.

A temporary injunction was requested to restrain the county officials, as aforesaid, from paying moneys out, or in any manner depleting the general fund of Hidalgo county, Tex., to an amount that would deplete the fund below an amount sufficient to pay appellant’s claim.

A hearing was had on a temporary injunction on the 6th.day of January, A. D. 1933, all parties being present, and at the conclusion of the hearing the Honorable Fred E. Bennett, present judge of said Ninety-Third district court, dissolved the temporary restraining order theretofore issued and refused the temporary writ of injunction prayed for. From the order thus entered, refusing the temporary writ of injunction, the appellant, plaintiff below, has prosecuted this appeal, and, by a separate application filed in this court on, to wit, the 18th day of January, A. D. 1933, appellant has asked this court to grant a temporary restraining order, requiring the appellees herein to hold the funds in statu quo, pending this appeal. ■

The pertinent facts necessary to a determination of this appeal are as follows:

On the 31st day of December, A. D. 1930, the commissioners’ court of Hidalgo county, Tex., audited the claim of E. A. McDaniel, appellant here, against said county and approved tlie same and ordered it paid out of the general fund of Hidalgo county, Tex., said claim being in the sum of $10,500 for legal services rendered, and instructed the county clerk and the county auditor to issue scrip in said amount drawn on the general fund of said county.

It further appeared that E. A. McDaniel, the appellant here, is still the owner and holder of said judgment and claim, and that the same has never been paid and no scrip or warrant has ever been issued on the same and no moneys have ever been received by the said E. A. McDaniel in payment of said claim, and that the county clerk and the county auditor have consistently refused tp issue said scrip. It also appeared on a hearing that the general fund of Hidalgo county, Tex., had in it at the time of the hearing on the temporary injunction herein sought sufficient .moneys to pay the claim of this appellant.

There was no evidence offered by appellant as to whether the amount then on hand in the general fund was collected for the payment of current expenses or for claims prior or subsequent to appellants, or as to how many prior claims against the general fund were prior to appellees; merely the fact, that there was over $10,500 in the general fund.

It was shown by appellees that any balance on' hand in the general fund was taken into account in estimating the general fund budget. It was further shown by appellees that the current or running expenses of the county could not be paid if the claim of appellant was placed as a prior item against the fund; that the effect would be to put the county on its credit, if it had any, or stop the running of the county government.

This ease presents the question: Did the trial judge abuse his discretion in refusing to grant a temporary injunction under the facts as above set out?

Appellant only alleges that he has a final, subsisting, and unsatisfied judgment against Hidalgo county. His application further shows that the county clerk has never issued him a warrant to cover said judgment, and of course same has not been counter signed by the auditor' nor classified and registered by the county treasurer.

Under article 1625, R. S. 1925, the treasurer, by whom all payments are made, is, in expressed terms, forbidden to pay any claim against a county until it has been duly registered. White v. Calaway (Tex. Civ. App.) 282 S. W. 642; Nolan County v. Simpson, 74 Tex. 218, 11 S. W. 1098; San Patricio County v. McClane, 44 Tex. 392; Colorado County v. Beethe, 44 Tex. 447. It is therefore clear that appellant, under his own contentions, is not now in a position to demand immediate payment of his claim, but is only entitled to a warrant for same and to have the warrant classified and registered, and when so registered it would become payable in the order in which it was registered, as provided by article 1625, above. Clarke & Courts v. San Jacinto County, 18 Tex. Civ. App. 204, 45 S. W. 315.

It is not necessary to discuss this case further to come to the conclusion that the judge below did not abuse his discretion in the case.

It is therefore our opinion that the order of the judge below refusing to grant a temporary injunction should be in all things affirmed, and it is so ordered.


text:
    TREVINO v. SOUTHLAND GREYHOUND LINES, Inc.
    No. 9004.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 8, 1933.
    Rehearing Denied March 1, 1933.

      Charles J. Lieck and Wm. E. Calvert, all of San Antonio, for appellant.
    Templeton, Brooks, Napier & Brown, of San Antonio, John H. Awtry, of Dallas, C. R. ICennon and Harper Macfarlane, both of San Antonio, for appellee.
   SMITH, Justice.

This action was brought by Tomas S. Trevino against Southland Greyhound Lines, Inc., to recover damages for personal injuries alleged to have been sustained by Trevino when thrown from his seat while a passenger upon one of the defendant’s busses. A jury trial resulted in a verdict and judgment denying any recovery to Trevino, who has appealed.

In his original petition appellant alleged the negligence of appellee in general terms, relying upon the doctrine of res ipsa loquitur to fix liability upon appellee. To these allegations appellee excepted upon the ground that specific acts of negligence should be expressly alleged in order to require appellee to answer. ' The court sustained this exception, whereupon appellant amended and expressly pleaded specific acts of negligence as a basis for appellee’s alleged liability, and tried the case on these allegations. By this procedure appellant waived his right to complain in this court of the ruling of the trial court upon said exceptions. Cornish v. Houston Terminal Land Co. (Tex. Civ. App.) 257 S. W. 575.

The trial court submitted the ease to the jury upon a number of special issues, but after much deliberation the jury was able to answer .only the first two of those issues, upon which they found, only, that appellant was an occupant of appellee’s bus at the time of the accident, but that appellee was not on that occasion operating said bus at a negligent rate of speed. In the unanswered questions the jury were asked to find: (1) If appellant was thrown from his seat in the bus; (2) if the bus was being operated in a manner calculated to throw appellant from his seat; (3) if'such operation was negligence;- (4) if such negligence was the proximate cause of appellant’s injuries; (5) the amount of damages. Upon the answers returned, the court rendered judgment against - appellant.

. [2] Appellant complains of the action of the court in rendering judgment upon the jury findings, and in overruling appellant’s motion for a mistrial. This complaint must be tested by the force of appellant’s contention that the unanswered issues were material, that they were well pleaded, and that there was sufficient evidence in the record to take them to the jury. But appellant does not fortify this contention by bringing up a statement of facts from which this court may determine for itself if the evidence was such as to require a jury to pass upon its weight. It must be presumed in favor of the right action of the trial court that the issues embraced in the unanswered questions were properly withdrawn from the consideration of the jury, unless it affirmatively appears to this court that the evidence upon those issues was material and in conflict, and this court can properly determine that question only from a statement of facts. Atchison, T. & S. F. Ry. Co. v. Lochlin, 87 Tex. 467, 29 S. W. 469, 479; Robinson v. Lynch Davidson & Co. (Tex. Civ. App.) 1 S.W.(2d) 677, and authorities there cited; Parrish v. Parrish (Tex. Civ. App.) 280 S. W. 901.

It is well settled, and wisely so, that findings of fact by a trial judge in a jury ease cannot be considered as statement of material facts, or bind appellate courts. Robinson v. Davidson, supra.

Nor can bills of exceptions supply statements of facts, however full their recital of facts may be. Parrish v. Parrish, supra.

In the bill of exceptions in which this transaction is presented here, the trial court certifies that the cause “was submitted to the jury upon the court’s main charge, consisting of eight special issues, which were raised by the pleadings and upon which there was sufficient preponderance of evidence to support a negative or an affirmative finding, depending upon the weight given to the evidence of, the witnesses for the respective parties, which was conflicting and which required submission to the jury of such issue. * * * ” Appellant insists that the recital in the bill of exceptions, to the effect that the evidence upon the eight issues was conflicting and “required submission to the jury,” is conclusive and binding upon tbis court. But tbis court cannot be so bound. This court must determine for itself .the question of whether the ruling of the trial court wrought wrongful injury to appellant, and that- can be properly determined only from the evidence actually adduced below, which may be shown only by a statement of facts. Atchison, T. & S. F. Ry. Oo. v. Lochlin, supra. The burden of such showing rested upon appellant, who, having failed to bring up a statement of facts, cannot assert that the evidence entitled him to a finding upon the issues withdrawn from the jury. Nor may the trial judge impeach his own ruling upon that question by recitals in the bill of exceptions that the evidence raised the issues afterwards discarded. That is an ultimate question of law to be determined by this court, not through a conclusion thereon by the trial court, but from the statement of facts provided by law for that very purpose.

In his remaining propositions appellant complains of the argumente of appellee’s counsel to the jury. The arguments here objected to cannot be adjudged harmful or erroneous, in the absence of a statement of facts. 3 Tex. Jur. §§ 344, 386. The bills of exceptions showing these transactions contain recitals that in each instance there “was no testimony to sustain” the argument objected to, “nor was the same provoked by argument of counsel for plaintiff.” It is djfficult to believe that the trial judge intended by these recitals to stultify himself and impeach his own rulings, although they have such effect, if taken at their face value. The bills of exceptions are signed by the trial judge, and by counsel for appellee, but this court will not, even in the face of such full authenticity, yield to trial judge and counsel the right to determine for itself, from a full record, the questions of law presented in the appeal. Or, as stated by Chief Justice Brown in Atchison, T. & S. F. Ry. Co. v. Lochlin, supra, “this court will not decide a question of this character to the detriment of the party recovering except upon' a' full view of the facts.”'

The judgment is affirmed.


author: McCLENDON, Chief Justice.

text:
    HOELSCHER et ux. v. EHLINGER.
    No. 7818.
    Court of Civil Appeals of Texas. Austin.
    Feb. 10, 1933.
    Theo W. Lueders, of La Grange, and Joseph Y. Frnka, of Columbus, for appellants.
    John P. Ehlinger, of La Grange, for appel-lee.
   McCLENDON, Chief Justice.

In this suit Hoelscher and wife sought in a. direct proceeding to set aside a judgment in favor of Ehlinger, which foreclosed a vendor’s lien upon 50 acres of land, the homestead of appellants; and to cancel a sheriff’s deed in favor of Ehlinger, executed under an order of sale under said judgment. The trial was to the court without a jury, and the judgment was in favor of Ehlinger.. Hoel-scher and wife have appealed.

The ground upon which the judgment was sought to be set aside was fraud on the part of Ehlinger in violating an agreement which prevented appellants from answering in the case, or bidding at the foreclosure sale. The asserted meritorious defense to the foreclosure suit was predicated upon allegations that the alleged vendor’s lien was void.

No findings of fact or conclusions of law were requested or filed. If, therefore, the evidence was sufficient tq support a finding either that there was no fraud or that the vendor’s lien was valid, the trial court’s judgment must be sustained. See Barton v. Montex Corporation (Tex. Civ. App.) 295 S. W. 950, and authorities there cited.

The foreclosure suit was filed September 10, 1928, and Hoelscher and wife were served with citation September 12, 1928, for the term of court beginning November 19, 1928. Judgment was rendered December 17, 1928, and the sheriff’s sale was made on February 6, 1929. All of the proceedings are regular on their face, and no attack is made upon them in that regard. Hoelscher and wife testified that after they were served with citation, they went to see Ehlinger, who told them that it would not be necessary for them to appear in the case, that nothing would be done; and, relying upon this assurance, they did not employ attorneys or take other action in the case. They also testified that when they received the notice of the sheriff’s sale, they had a similar conversation with Ehlinger and similar assurance. Ehlinger denied any such agreement or statement on his part with reference either to the court proceedings or to the sale. The evidence presents a clear conflict in testimony between appellants on the one hand and appellee on the other. There were circumstances strongly corroborating Ehlinger’s testimony, but it is not necessary to set them out here. The evidence was manifestly sufficient to support a finding that there was no representation or statement made by Ehlinger which would warrant assumption on appellants’ part that no judgment would be taken, or that the sale would not be made. The evidence is therefore abundantly sufficient to support the trial court’s judgment on this issue.

The evidence is also sufficient to support the trial court’s judgment on the issue of the validity of the vendor’s lien. The controlling facts in that regard, briefly stated, follow: Hoelscher (then a single man—he married in 1914) purchased the land from his mother in 1910, giving in part payment a vendor’s lien note for $875, dated November 7, 1910, and due one year after date. This note was later transferred to Ehlinger who held it until October, 1916, at which time the principal and interest due thereon was approximately $1,-291. The note bore 8 per cent, interest. Mrs. Hoelscher had an uncle, Kulhanek, who agreed to carry the indebtedness at 7 per cent. He did not want to acquire the old note, but wanted a new note. Therefore, tlie transaction was arranged as follows: Hoelscher and wife conveyed the land to Kulhanek, who in turn reconveyed it to Hoelscher, reserving a vendor’s lien to secure a note signed by Hoelscher and wife for $1,300. Kulhanek gave Ehlinger his check for this amount, and Ehlinger paid the difference (about $9), in cash, to Hoelscher, and executed a release of the original vendor’s lien note. Later Kul-hanek sold and transferred the $1,300 note to Ehlinger, who held it until the foreclosure suit was brought. In the meantime there had been one or more extensions of the note by Hoelscher and wife.

Appellants make two contentions in support of their claim that the asserted vendor’s lien was void:

1. It is urged that at the time of the transaction with Kulhanek the original vendor’s lien note was barred, and the lien could not be revived because the property was homestead. This question was foreclosed by the decision in Hall v. Hix (Tex. Civ. App.) 297 S. W. 491 (error refused), wherein it was held that the husband has the power to extend a note secured by a vendor’s lien upon the homestead as against the homestead rights of the wife. ⅛ the instant case the homestead was the separate property of the husband, and he and his wife joined in the deed to Kulhanek which was executed for the purpose of novating and extending the original vendor’s lien note.

2. That the effect of the transaction with Kulhanek was to satisfy and discharge the original vendor’s lien note and to attempt to create a mortgage upon the homestead to secure a debt for borrowed money. Whetier the evidence was sufficient to support a finding to this effect, it is unnecessary to consider. The testimony of Hoelscher and wife and of Kulhanek clearly shows that the purpose of the entire transaction was to obtain from Kulhanek the money to carry the loan at a lower rate of interest than that being paid to Ehlinger, and the transaction took the form it did because Kulhanek thought that the method employed was the proper legal one. .The clear intention of the.parties was to secure Kulhanek in like manner as Ehlinger was secured, and to transfer the obligation represented by the original note from Ehl-inger’s to Kulhanek’s ownership. The consideration represented by the $1,300 vendor’s lien note was paid direct by Kulhanek to Ehlinger. The transaction was no different in substance or in legal effect than if Ehlinger had transferred the note to Kulhanek, and a new note had been given in renewal and extension thereof.

The trial court’s judgment is affirmed.

Affirmed.


author: BLAIR, Justice.

text:
    RAILROAD COMMISSION OF TEXAS v. WINKLE.
    No. 7865.
    Court of Civil Appeals of Texas. Austin.
    Jan. 11, 1933.
    Jas. V.'Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., and Chas. M. Spence, of Dallas, and Claude Pollard, of Austin, for appellant.
    Geo. O. Wilson, of Dallas, and J. .C. Duvall, of Port Worth, for appellee.
   BLAIR, Justice.

The questions in this appeal relate to the sufficiency of the pleadings and proof of ap-pellee to establish that the particular order of the Railroad Commission complained of was unreasonable and unjust as to him, and as pointed out in the preliminary statement of the Shupee Case (Tex. Civ. App.) 57 S.W. (2d) 295, these questions are determinable by the same general principles of law therein announced.

This suit arose as an appeal by appellee under section 20 of the Motor Truck or Carrier Law (Vernon's Ann. Civ. St. art. 911b, § 20) from an order of the Railroad Commission denying the application of appellee to increase his schedule of motor truck operations as a common carrier for hire under his certificate of convenience and necessity No. 2335, from three (“one schedule from Henderson each Monday, Wednesday, and Friday, returning each Tuesday, Thursday, and Saturday”) to six round-trip schedules per week (one each day except Sunday), between the cities of Dallas and Henderson. The commission denied the increase schedules because “the facts presented at the hearing by applicant failed to establish the public convenience and necessity” for the increase schedules, and because “the common carriers now authorized to operate over the proposed route are rendering all the service that the public convenience and necessity require, and are capable of rendering any increase service that can reasonably be expected to arise within the near future.” On his appeal to the district court, appellee alleged that this order was unreasonable and unjust as to him, and as particq-lar facts showing the alleged existence of ’a public convenience and necessity for the increase schedules, he pleaded the nature and character of his equipment, the nature and extent of his present service, and the condition of the highways and the territory being served; the fact that an oil field had been discovered as the result of which both the population and freight business in the territory were doubled; that he was being tendered more freight than he could handle on the three schedules; that there was a public necessity for daily overnight service from Dallas to Henderson and intermediate points with early morning delivery as appellee proposed to make; that other transportation facilities were not adequate to properly care for the public interest; and that such proposed increase schedules would not impair the service of other transportation facilities serving the same territory.

The commission filed a general demurrer and several .special exceptions enlarging the general demurrer, which were overruled, and a general denial.

A trial to a jury on special issues resulted in a judgment setting aside the order of the commission denying the increase schedules as being unreasonable and unjust; and an order enjoining the commission from interfering with appellee in the operation of the increase schedules, subject, however, to its regulatory supervision required by the statutes ; hence this appeal.

The commission contends that since the Motor Carrier Statutes conferred upon it the exclusive power and authority to grant a 'certificate of convenience and necessity to ■operate motor trucks as common carriers for hire over the highways of this state only when and if a public convenience and necessity existed for such services; and since the appeal section of the Motor Carrier Act (Section 20) only conferred jurisdiction on the court on appeal to determine whether the order denying the increase schedules for additional truck operations was unreasonable ■as to appellee, that before he might vacate such order as being unreasonable and unjust, he was required to both allege and prove specific facts showing that in denying the increase schedules the commission either exceeded its constitutional or statutory authority, or made the order without any substantial evidence to support it; or that, having regard to the interests of both the public and appellee as the proposed common carrier for hire, its order denying the increase schedules was so arbitrary as to be beyond the exercise of the reasonable discretion and judgment vested in it; and that the judgment of the trial court vacating the order should be reversed because neither the pleadings nor proof adduced on the appeal and trial da novo showed the existence Of any such state of facts.

Appellee contends, however, that the appeal section of the act conferred general power and jurisdiction on the court to review all acts of the commission in its administration of the Motor Carrier Laws, to try anew or de novo any appealable matter, and to substitute its own finding based upon a preponderance of evidence for that of the commission. Ot to be more specific, appellee contends by his one counterproposition, as follows:

“In an appeal from an order of the Rail-, road Commission whereby it denied an application for an increase in schedules of a common carrier operating motor vehicles over the highways of the state, the district court has power and jurisdiction to try the issues as in other civil causes, and, where in such trial, the jury finds (1) that the order is unjust and unreasonable, (2) that, taking into consideration existing transportation facilities public necessity and convenience requires the operation of a schedule of one round trip per day, except Sunday, (3) that-the granting of the schedule of one round trip per day, except Sunday, will not unreasonably interfere with the use of the highways by the general public, and (4) that the transportation service rendered by existing common carriers operating into and out of Henderson and intermediate territory, between Henderson and Dallas and other cities and towns located upon the route, is not reasonably adequate to meet the transportation needs of such cities and towns and intermediate territory, the court was authorized and justified in entering judgment setting aside and holding for-naught the order denying the increase of schedules for three round trips per week to one daily trip, and in adjudging that the public necessity and convenience required the operation of such daily schedule.”'

These same contentions were made in the Shupee Case and were there decided adversely to these contentions of appellee. It is true the Shupee Case involved the Motor Bus Laws while this case involves the Motor Truck or Carrier Laws, but they are similar in every respect as to purpose and intent. That is, each act is a part of the Motor Transportation Laws (see Vernon’s Ann. Civ. St. ¿rts. 911a, 911b; Vernon’s Ann. P. C. art. 1690b) which vest in the Railroad Commission the broad discretionary power and authority to grant or refuse a certificate of convenience and necessity to operate a .bus or truck line over the public highways of this state as common carriers of persons or freight for hire, dependent upon the determination by the commission of the existence or nonexistence of a public convenience and necessity for such services. In determining whether the public necessity demands, or the public convenience will be promoted by a proposed bus or truck service, the commission exercises its power and authority merely as an arm of the Legislature and as an administrative body, the commission being enjoined by the statutes to act primarily in the interest of the safety, convenience, and necessity of the public, to protect the highways for public use, and to maintain safe and' dependable motor bus or motor truck transportation over the public highways, where public convenience and necessity demand. And as held in the Shupee Case the appeal sections of the act are similar and are interpreted to mean that the court on appeal shall not interfere with the Railroad Commission or review its acts or orders administering the Motor Transportation Acts further than is necessary to keep it within the law, and to require that its orders shall be based upon substantial evidence, and not upon an arbitrary exercise of its discretionary power and authority. Appellee’s petition failed to allege any such matters or facts as would bring his case within these rules, and the general demurrer thereto should have been sustained under the rules announced in the Shupee Case.

We pretermit a lengthy analysis of the pleadings in this ease. Suffice it to say that the petition on appeal alleged no specific facts upon which to base the general conclusions of the pleader that a public necessity existed for the increase schedules, and par- ■ tieularly for an early morning delivery; and ■ that existing transportation facilities were inadequate to serve the territory. There were no facts alleged showing that the commission had exceeded its statutory authority, or that the order complained of was not based upon substantial evidence adduced on the hearing of application for the increase schedules; nor were there any allegations of specific facts which, if true, would show as á matter of law that the commission acted arbitrarily or abused the discretionary power vested in it to deny the increase schedules applied-for. Such allegations of specific facts were necessary under the rule announced in the Shupee Case and the cases there cited.

Passing to a consideration of the sufficiency of the evidence, we find that it furnished a substantial basis for the order refusing the increase schedules. In short, it showed that the early morning deliveries proposed would be convenient for certain customers of appellee, but that no real public .necessity for such service existed. The evidence also showed that daily truck service by other motor truck common carriers and by railroads were reasonably adequate to serve the public need in the territory in question. And as pointed out in the Shupee Case, public convenience alone does not authorize the issuance of a certificate, but there must also be a public necessity.

Briefly stated, both the pleadings and proof of appellee were insufficient, because the specific allegations of the petition, viewed in their entirety, and the proof offered on the appeal and trial de novo, merely alleged and proved facts upon which the application for the increase schedules might have been granted ; or question the soundness of the discretion and judgment of the commission in denying them; but the pleadings do not allege, nor does the proof establish any facts showing an abuse of its discretionary power and authority to deny the increase schedules proposed by appellee. It is also manifest that appellee’s counterproposition is erroneous wherein it stated that the appeal statute authorized the court to put itself in the place of the commission to try the administrative matter of granting the increase schedules anew as an administrative body, substituting its findings with regard to a public convenience and necessity for the service, based upon a preponderance of evidence adduced on the appeal and trial de novo, for those of the commission. Such is not the principle on which the court acts on the statutory appeals, as was fully discussed and pointed out in the Shupee Case.

We reverse the judgment of the trial court setting aside the order of the commission complained of, and dissolve the injunction granted herein against the commission.

Reversed and injunction dissolved.


text:
    RAILROAD COMMISSION OF TEXAS et al. v. WINKLE.
    No. 7858.
    Court of Civil Appeals of Texas. Austin.
    Jan. 11, 1933.
    Rehearing Denied Feb. 1, 1933.

      See, also, 57 S.W.(2d) 285.
    James V. Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., for appellant Railroad Commission.
    Andrews, Streetman, Logue & Mobley, of Houston, and T. D. Gresham, M. E. Clinton, and Chas. M. Spence, all of Dallas, for appellants Texas & Pac. Motor Transport Co. and Missouri-Pac. Transp. Co.
    J. O. Duvall, of Port Worth, and Wm. A. Wade and Carl L. Phinney, both of Dallas, for appellee.
   BLAIR, Justice.

This appeal involves the same certificate) of convenience and necessity, No. 2335, as was involved in the case of Railroad Commission of Texas v. T. M. Winkle (No. 7865) 57 S.W.(2d) 285, this day decided by this court.

This suit arose in the court below as a consolidated cause comprising two actions, one by the appellants Texas Pacific Motor Transportation Company and the Missouri, Pacific Transportation Company, and the other by appellee, T. M. Winkle, each of which sought to set aside and enjoin in certain respects an order of the Railroad Commission of Texas, it being the defendant in each suit.

The pertinent facts involved are that Winkle became the owner of certificate of convenience and necessity No. 2335, which was issued by the Railroad Commission under chapter 314 of the-Acts of the 41st Legislature, and which authorized three round trips per week between Dallas and Henderson, specifying “one schedule from Henderson each Monday, Wednesday and Friday, returning each Tuesday, Thursday and Saturday.” After Winkle became the owner of this certificate in April, 1931, he began to operate daily, or six round trip schedules between these points, and continued to so operate until some time in February, 1932. In the interim he had filed with the Railroad Commission, under the provisions of chapter 277, Acts of the 42nd Legislature (Vernon’s Ann. Civ. St. art. 911b; Vernon’s Ann. P. O. art. 1699b) an application for authority tol increase the number of schedules from three to six per week. This application was denied and that order is involved in the case of Railroad Commission v. Winkle (No. 7865) 57 S.W.(2d) 285, this day decided by this court, and is only material here as an overlapping factual question or situation. On June 6, 1931, chapter 277, Acts of the 42nd Legislature, p. 480, became effective, which superseded or amended the former chapter 314 of the 41st Legislature, and which prohibited, like the former act, operations of motor vehicles as common carriers for hire over the highways of this state without first obtaining certificate of convenience and necessity to do so; but section 5 of the act (Vernon’s Ann. Civ. St. art. 911b, § 5) reads as follows: “No motor carrier shall hereafter operate as a common carrier for the transportation of property for compensation or hire over the public highways of this State without first having obtained from the Commission under the provisions of this Act a certificate declaring that the public convenience and necessity requires such operation; provided, however, the Commission shall,, without application or hearing when this Act goes into effect, issue all motor carriers then operating lawfully under permanent certificates of public convenience and necessity heretofore issued to them, certificates in lieu of the certificates issued under the terms of the former law covering the same routes that said common carrier shall have been operating over, and no more.”

' In March, 1932, certain common carriers, competitors of Winkle, filed with the Railroad Commission a motion or application to revoke and cancel his certificate of convenience and necessity No. 2335, upon the ground that for months prior and subsequent to the effective date of chapter 277, Acts of the 42nd Legislature, he had been and on that date was operating six schedules per week instead of three schedules per week, in violation of the terms of his certificate, and was therefore not operating “lawfully” within the meaning of section 5 above quoted; and that therefore his certificate issued pursuant to that section was erroneously and invalidly issued in violation of tlie statute. The commission heard the application and held that Winkle was operating more schedules than his permit authorized, and as a penalty suspended all operations for ninety days. The commission, however, did not revoke or cancel the certificate as prayed for by the applicants. Appellee appealed from the ninety-day suspension order, but the competitive common carriers who filed the motion did not appeal from) the order refusing to revoke or cancel the permit. Appellants, who are competitive common carriers with Winkle in the same territory, filed in the district court of Travis county an injunction to restrain ap-pellee from operating any schedules, and the commission from permitting any operation under the certificate, alleging that because Winkle was operating more than three schedules per week at the time the commission issued his permit under chapter 277, the act of the commission was void in view of section 5 above quoted.

Although numerous questions are presented in the appeal by both parties, we have concluded that appellant carriers’ propositions 1 and 2 present the controlling question on appeal. They read, as follows:

.“1. Inasmuch as the appellee on, prior and subsequent to the effective date of chapter 277 of the General Laws of the 42nd Legislature, Regular Session, was operating contrary to the terms of, and in excess of the authority granted by, his certificate of public convenience and necessity, he was not operating ‘lawfully’ within the meaning of section 5 of the aforesaid act.”

“2. Inasmuch as the appellee was not, on the effective date of chapter 277 of the General Laws of the 42nd Legislature, Regular Session, operating lawfully under his certificate of public convenience and necessity, the new certificate issued to him under section 5 thereof was erroneously and unlawfully issued and constitutes no valid authority for appellee’s operations. It should be cancelled and operation thereunder perpetually enjoined.”

We do not construe section 5. as contended for by appellants. We think that since the act provided that no hearing was to be had, that “operating lawfully” meant that one who was operating under a certificate duly issued by the commission was a lawful operator so as to entitle him to the issuance of the new certificate as provided by the act. The section provides that the commission may summarily without hearing issue such permit; and, of course, under that circumstance it could not ascertain whether an operator was violating any of the terms of his permit, and shows that the Legislature intended to grant all who had outstanding certificates the right to continue operations.

We think this construction is clear in view of subdivision (b) of section 12 of the Act (Vernon’s Ann. Civ. St. art. 911b, § 12(b), which reads, as follows: “(b) The Commission at any time after hearing had, upon notice to the holder of any certificate or permit and after opportunity given such holder! to be heard, may by its order revoke, suspend or amend any certificate or permit issued under the provisions of this Act, where in such hearing the Commission shall find that such certificate or permit holder has discontinued operation or has violated, refused or neglected to observe the Commission’s lawful orders, rules, rates or regulations or has violated the terms of said certificate or permit; provided that the holder of such certificate or permit shall have the right of appeal as provided in this Act.”

This section contemplated regulation by the commission of operators of motor vehicles as common carriers for hire after the matter of issuing certificates oí convenience and necessity under the act had been complied with; one of the main provisions being that the commission, after it was called to its attention that a certificate holder was violating the terms of his certificate or permit, could suspend or cancel the shme as in its judgment and discretion the facts would warrant. There is nothing in the act to indicate that the Legislature intended to impose upon the commission the duty of ascertaining before it issued fhe second certificate un- ' der section 5 of the act whether or not one operating under a common carrier certificate was violating the terms of his certificate. It provided that the commission shall issue the new certificate without application or hearing when the act goes into effect, to all motor carriers then operating lawfully under certificates issued under the terms of the former law, covering the same routes, that said common carriers have been operating, and no more. It is, therefore, manifest that the Legislature did not intend to impose upon the commission any inquiry into the question of whether a certificate holder was violating his certificate by operating more schedules than it provided for as a prerequisite to issuance of the new certificate. That was a matter which the act left to the commission under its regulatory supervision, as provided in subdivision (b) of section 12, supra.

Since the order of the commission refusing, to cancel the permit is not attacked upon any ground except that it is unauthorized by the statute, there is no further necessity to review the order, and the judgment of the trial court refusing to cancel the permit will be affirmed.

The Attorney General for the Railroad Commission stated in oral argument that he did not care to further prosecute the ninety-day suspension order, and the judgment of the trial court enjoining the commission from enforcing said suspension order will also be¡ affirmed.

On Motion for Rehearing.

The appellant carriers insist on rehearing that this court erred in holding that the order of the commission refusing to cancel the permit was not attacked upon any ground except that it was unauthorized by the statute; and further insist that the appellants did attack the order upon the ground that it was unreasonable and unjust as to them, because the evidence before the Railroad Commission on the hearing to cancel said permit showed that appellee, Winkle, was operating more schedules on that date than his certificate called for.

We disposed of this contention in our original opinion by holding that subdivision b of section 12 of the Act (Vernon’s Ann. Civ. St. art. 811b, § 12(b) authorized the commission in its discretion to revoke, modify, or suspend a certificate upon a hearing and proof that the holder had violated some of its terms. The record discloses that the commission held a hearing upon the application to cancel appellee’s (Winkle’s) permit, because he had or was operating more schedules than his certificate called for, but refused to do so, and merely suspended all operations for ninety days as punishment for the violation. The section of the act referred to authorized the commission to so dispose of such matters, and we find no fact or facts alleged or proved in this case which would show that the commission had abused its discretionary power in this regard.

We overrule the motion for rehearing.

Overruled.


text:
    RAILROAD COMMISSION OF TEXAS et al. v. INTER-CITY FORWARDING CO.
    No. 7907.
    Court of Civil Appeals of Texas. Austin.
    Jan. 11, 1933.

      See, also, 57 S.W.(2d) 2S5.
    James V. Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., for appellants.
    Duvall & Dawson, of Fort Worth, and Carl L. Phinney, of Dallas, for appellee.
   BLAIR, Justice.

This appeal and the appeals in the cases of Railroad Commission et al. v. Jacob T. Bradberry, 57 S.W.(2d) 294; Railroad Commission et al. v. R. M. Rodgers, 57 S.W.(2d) 294, and Railroad Commission et al. v. George A. Scott Truck Line, 57 S.W.(2d) 293, involve identical questions, and the appellant commission presents them in one brief. That is, in each case the appellee was operating prior and subsequent to the enactment of chapter. 277 Acts 42nd Legislature (Vernon’s Ann. Civ. St. art. 911b; Vernon’s Ann. P. C. art. 1699b), motor trucks carrying freight over the public highways of this state under a Class B or contract carrier permit, issued by the Railroad Commission in virtue of paragraph B of section 1, e. 314, Acts of 41st Legislature. After the passage of chapter 277, and in accordance with its provision (section 6 (c), Vernon’s Ann. Civ. St. art. 911b, § 6 (c), each appellee filed within the 39-day period allowed an application with the commission for a permit to continue contract carrier operations, which application after a hearing in each instance was denied, and the existing Class B permit of each appellee canceled. In each case the applicant appealed under section 20 of the Motor Carrier Law (Vernon’s Ann. Civ. St. art. 911b, § 20), from the order denying the continuation of the existing Class B permit, and the cancellation of same by the commission, alleging that the statutes were unconstitutional under the facts alleged; and that by reason of the facts alleged the order of the commission was unreasonable and unjust as to complainant. In each case the trial court issued a temporary injunction restraining the commission from enforcing its order. The appellants filed a motion, which in effect was a general demurrer, to dissolve the temporary injunction, and which in each in!stance was overruled; hence this appeal. And the question presented in each appeal is whether the petition of appellee alleged “sufficient facts to give authority or jurisdiction to the court to issue the temporary injunction.”

The Attorney General correctly contends for the Railroad Commission that in each appeal the petition for the temporary injunction failed to allege sufficient facts to authorize the court to grant the writ when interpreted in the light of the rule or principle upon which the court acts in reviewing any order of the Railroad Commission. Tire specific contention is that since each appeal is a statutory appeal under section 20 of the Motor Carrier Act (Vernon’s Ann. Civ. St. art. 911b, § 20), which provides that on such appeal the court may review the order complained of only for the purpose of determining whether it is unreasonable and unjust as to complainant, it was necessary for the petition on appeal and for injunction to contain allegations of such specific facts and circumstances as would, if true, authorize the court to adjudge as a matter of law the following: (a) That the statutes under which the commission acted were unconstitutional; or (b) that the commission exceeded its statutory authority or power in making the order complained of; and (c) that there was no substantial evidence adduced on the hearing of the applicátion for the permit before the commission to support its order denying the permit; or (d) that the order was so arbitrary under the specific facts alleged as to be beyond the exercise of reasonable judgment and discretion vested by the Motor Carrier Act in the commission to deny the permit after a hearing, thereby rendering the order of the commission “unreasonable and unjust” within the meaning of that term as used in the appeal statute.

It is further contended in this connection that the petition in each case is specifically deficient when viewed in the light of the well-settled rule applicable to petitions for injunctions, to the effect that the “averment of material and essential elements must be sufficiently certain to negative every inference of the existence of facts under which plaintiff would not be entitled to the relief.” Gillis v. Rosenheimer, 64 Tex. 246; Birchfield v. Bourland (Tex. Civ. App.) 187 S. W. 422; Grayson County v. Harrell (Tex. Civ. App.) 202 S. W. 160; Miller v. Ballinger (Tex. Civ. App.) 204 S. W. 1173; Emde v. Johnson (Tex. Civ. App.) 214 S. W. 575; Wilkening v. Wolff (Tex. Civ. App.) 220 S. W. 598; Johnson v. Ferguson, 55 S.W.(2d) 153, by this court.

The general rule that as against a general demurrer every reasonable intendment is indulged in favor of the sufficiency of the pleading is not applicable to petitions for injunction as held by the above authorities.

We have chosen this ease in which to write the initial opinion, and the principles of law announced will be applied to the facts stated in the other cases by reference to this case as the Forwarding Company Case.

The appellee Forwarding Company alleged that for many years prior and subsequent to the passage of chapter 277, Acts of the 42nd Legislature, it had been operating for hire over the highways of this state motor trucks carrying freight under a Class B or contract carrier permit, issued by the Railroad Commission under the provisions of chapter 314, Acts of the 41st Legislature. That it had invested considerable sums of motley in trucks ■ and equipment; that it had at the time of the passage of chapter 277 outstanding contracts with several customers to transport freight for them between the cities of Dallas and Houston and Dallas and San Antonio over certain highways; that after the passage of chapter 277 and in accordance with its provisions, appellee filed its application for a continuance of its permit; but that the commission after a hearing denied the application and refused the permit, and canceled appellee’s authority to operate as a Class B or contract carrier. Based upon these allegations of fact, appellee concludes in its petition that the order was unreasonable and unjust as to it, for the following reasons:

1. That the order was unreasonable and unjust (a) because it deprived appellee of engaging in a lawful business which it had engaged in for many years prior to the cancellation of the permit; (b) there was no evidence to support the drastic order of the Railroad Commission; and (c) because the commission acted without lawful authority in canceling said permit and in refusing to issue appellee a contract carrier permit, in that there was no testimony offered that would indicate that the granting of such permit would impair the efficiency of public service of any common carrier then serving the same territory. As held in the Shupee Case, 57 S.W.(2d) 295, and in the case of Railroad Commission v. Winkle, 57 S.W.(2d) 287, these allegations are mere conclusions of the pleader not based upon any specific allegation of fact from which the court might conclude, if true and as a matter of law, that the order was unreasonable and unjust to appellee.

2. That the order of the commission was unjust and unreasonable and unconstitutional in that it contravenes section 1 of the 14th amendment to the Constitution of the United States, in that the denial of said permit constituted the taking of appellee’s property without due process of law, and that the same impaired the obligations of appellee’s outstanding contracts. This contention has been decided adversely to appellee by the Supreme Court of the United States in the recent case of Stephenson v. Binford, 53 S. Ct. 181, 184, 77 L. Ed. -, where-it is held that the Texas statutes under consideration declare the public policy of this state in denying permits to contract carriers to transport freight for hire, to be the conservation of the highways and the protection of the traveling public in their use; and where it is further held as follows: “It is well established law that the highways of the state are public property; that their primary and preferred use is for private purposes ; and that their use for purposes of gain is special and extraordinary, which, generally at least, the legislature may prohibit or condition as it sees fit.”

Ex parte Sterling (Tex. Sup.) 53 S.W.(2d) 294; Ex parte Phares (Tex. Sup.) 53 S.W.(2d) 297; Box v. Newsome (Tex. Civ. App.) 43 S. W.(2d) 980, 981; Stephenson v. Binford (D. C.) 53 F.(2d) 509.

The Stephenson v. Binford Case, supra, further holds that the matter of denying the use of the highways to private persons or corporations for the operation of motor vehicles for private gain was a subject wholly within the purview of the Legislature, and that no court had authority to review its action in that respect, because such regulations of its highways merely involved a consideration of the public policy of this state, and with which consideration the courts have no concern. That the aet was not unconstitutional because it authorized the" Railroad Commission to deny the permit of any contract carrier who had theretofore operated under a' Class B permit, and who might have outstanding contracts, even though it did result in modifying or abrogating the contracts already in existence. The court based its decision upon the well-recognized principle that the public highways belonged to the state and were public property ; and that any contract with reference to their future use by any individual is to be regarded as having been made subject to the future exercise of the constitutional power of the state through its Legislature to impose such conditions and regulations as public convenience, safety, and necessity might demand. The-court further held that in so protecting the state highways for their primary use for the public, the Legislature had the right to impose upon contract carriers for hire the condition that the permit should be refused in the event that common carriers serving the same territory were reasonably adequate to care for all transportation of freight. It is held that the state provides for its highways and pays for their upkeep; that the state is not powerless to protect its highways from being subject to heavy burdens of motor vehicle transportation when other means of transportation are available. The court further held that since common carrier transportation is conceived to be a great public necessity, and one in which all the public is interested, and since the act was a means of both protecting its highways and the maintenance of a reliable and convenient common carrier transportation system, that the Legislature had the right to require that any contract carrier whose operation might interfere with the maintenance of such common carrier service might, in the discretion of the Railroad Commission, be prohibited from operation. Like rulings on principle were made by the Commission of Appeals in Ex parte Sterling, 53 S.W.(2d) 204, 297, and Ex parte Phares, 53 S.W.(2d) 297, where the statutes in question are held to be constitutional against the attack made; and where it is further held that the “use of public highways by common carriers of property for hire is an extraordinary use enjoyed as a mere privilege * * * revocable at the will of the Legislature.” And since the matters presented in this appeal involve matters which the Legislature may reasonably and. lawfully regulate, the fact that appellee purchased his trucks and equipment prior to the enactment of such statute, or that the contracts were made prior to the enactment of the statutes, does not render them unconstitutional, because they must be regarded as having been made subject to the future exercise of the power of the Legislature to protect the state’s highways, which by this act it has done by requiring existing common carriers to transport freight where they are reasonably adequate to do so, thereby alleviating the ¡highways of the burden placed upon them by the transportation of freight by private motor vehicle contract carriers.

With the exception of these constitutional questions, all other matters relating to the sufficiency of the petition in each of these appeals have been dealt with by this court in the Shupee and Winkle Oases above referred to. We, therefore, do not see that it is necessary to further discuss the questions raised in this specific case.

The temporary injunction granted by the trial court will be dissolved.

Injunction dissolved.


text:
    RAILROAD COMMISSION OF TEXAS et al. v. GEORGE A. SCOTT TRUCK LINE.
    No. 7904.
    Court of Civil Appeals of Texas. Austin.
    Jan. 11, 1933.
    See, also, 57 S.W.(2d) 285.
    James V. Allred, Atty. Gen., and T. S. Christopher-, Asst. Atty. Gen., for appellants.
    Alton E. Stewart, of Dallas, for appellee.
   BLAIR, Justice.

This case is one of the companion cases. The appellee has filed no brief in this case, but presented oral argument and relied on the same contentions made by the appellee in the Forwarding Company Case, 57 S.W.(2d) 290.

There was the additional allegation that this particular carrier served a territory some points in which there were no common carriers, and that other points may be reached by other common carriers only after having been transferred several times. These are matters which address themselves to the discretion of the commission in the administration of the Motor Transportation Act (see Vernon’s Ann. Civ. St. art. 911b), and since there are no specific facts alleged showing any unreasonable or unjust denial of transportation to any portion of the territory, the courts cannot interfere with the order of the Railroad Commission.

The temporary injunction granted by the trial court will be dissolved.

Injunction dissolved.


text:
    RAILROAD COMMISSION OF TEXAS et al., Appellants, v. Jacob T. BRADBERRY, Appellee.
    No. 7905.
    Court of Civil Appeals of Texas. Austin.
    Jan. 11, 1933.
    See, also, 57 S.W.(2d) 285.
    James Y. Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., for appellants.
    J. C. Duvall and A. W. Dawson, both of Fort Worth, and Carl L. Phinney, of Dallas, for appellee.
   BLAIR, Justice.

This case is a companion case with the Forwarding Company Case, 57 S.W.(2d) 290, counsel for appellee having briefed them as one case. There are no distinctions to be drawn between the facts alleged in each case, and the rule announced in the Forwarding Company Case controls this case in every particular. .We, therefore, dissolve the temporary injunction granted by the trial court.

Injunction dissolved'.


text:
    RAILROAD COMMISSION OF TEXAS et al. v. RODGERS.
    No. 7906.
    Court of Civil Appeals of Texas. Austin.
    Jan. 11, 1933.
    See, also, 57 S.W.(2d) 285.
    James V. Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., for appellants.
    A. M. Felts and G. P. Morgan, both of- Austin, for appellee.
   BLAIR, Justice.

This case is a companion case to the Forwarding Company Case, 57 S.W.(2d) 290, as referred to therein. The petition makes the same allegations with reference to appellee having operated as a carrier of freight over the highways of this state under a Class B permit issued by the Railroad Commission under the then existing law (Acts 1929, c. 314), and after the passage of chapter 277 (Vernon’s Ann. Civ. St. art. 911b; Vernon’s Ann. P. O. art. 1690b), the appellee filed its application for a permit to continue as a contract carrier, which was denied after a hearing.

The same constitutional questions are raised as were raised in the Forwarding Company Case, and without reiterating those we overrule them upon authority of that case.

In addition, however, in this case the appellee attacked the order of the Railroad Commission because the commission did not sit in a body on the hearing of his application, but the hearing was had before a duly appointed agent of the commission. The statute specifically authorizes the hearing to be had before the duly appointed agent of the commission, and it was not alleged that the commission was not informed as to the facts adduced on that hearing when it made its order.

There is also the additional contention made in this case that since appellee only operates two trucks distributing merchandise for the Lawrence Grocery Company, located at Bryan, Tex., to its customers in southeast Texas, that the amount of tonnage he would haul would be insignificant as compared with the bulk of tonnage available for other carriers, and would constitute only a small percentage of the total business available for sucli carriers in that portion of the state. This contention cannot be sustained, because the act does not deal with the individual contract carrier, but deals with them as a class throughout the entire state. Or, as was said by the Supreme Court of the United States in Stephenson v. Binford, 53 S. Ct. 1S1,186, 77 U. Ed. —: “ ‘The number of contract carriers on the highways of Texas having rapidly grown, as elsewhere found, the business they conduct now exists as a very large factor in commercial transportation. The court finds that it is not the effect of one such carrier or a limited number thereof which produced the serious problem with which the Legislature of Texas purported to deal and has dealt, but it is the effect, in the aggregate, of such contract carriers that is important.’ ”

If the matter of the insignificance of the amount of freight hauled by appellee is material at all, it was a matter which addressed itself to the sound discretion of the Railroad Commission in refusing the permit, and no facts are alleged which show an abuse of that discretion.

Since appellee’s petition for the injunction did not contain allegations of such facts and circumstances as would, if true, authorize the court to adjudge the order appealed from to be unconstitutional or to be unjust and unreasonable as a matter of law, we dissolve the temporary injunction appealed from.

Injunction dissolved.