author: JAMES, Justice.

text:
    C. N. WILLIFORD et ux., Appellants, v. Harvey R. SPIES et ux., Appellees.
    No. 5468.
    Court of Civil Appeals of Texas, Waco.
    Oct. 23, 1975.

      John B. Kyle, Dallas, Roy W. Hill, Fair-field, Morris W. Hassell, Rusk, for appellants.
    W. A. Keils, Jr., Teague, for appellees.
   OPINION

JAMES, Justice.

This is an appeal by Defendant-Appellants the Willifords from summary judgment that Plaintiff-Appellees Spies and wife are owners of “all coal and lignite royalties due and payable under all coal and lignite leases” covering 193.99 acres of land in the W. B. Reed Survey, Freestone County, Texas.

Plaintiffs Spies and wife sued Defendants Williford and wife alleging Defendants sold the 193.99 acres in November 1950, to Ray Minchew by warranty deed; that such conveyance reserved to Defendants:

“One half (½) of all minerals, oil, gas and other minerals in and to and under the above described property herein conveyed”;

that said mineral reservation by its own terms did not include coal and lignite under the surface that would be mined and recovered by open pit or strip mining methods; that the Supreme Court case of Acker v. Guinn, (Tex.1971) 464 S.W.2d 348 so holds; that Plaintiffs have acquired the rights of Minchew by mesne conveyances; and Plaintiffs prayed judgment that Defendants have no interest in the coal and lignite by virtue of the reservation.

Defendants answered that in November 1949, and prior to the conveyance to Min-chew they had entered a mineral lease with Roger Steward which severed the mineral estate specifically including the coal and lignite from the surface; that such mineral lease was recorded in the Deed Records of Freestone County in March 1950, and placed Minchew and all his successors in title on notice thereof; and further that the surface estate has not been rendered useless by the strip mining of the coal and lignite, but has been restored and improved; and prayed Defendants have judgment for ½ of the royalties from the coal and lignite leases. A copy of the mineral lease is attached to Defendants’ answer.

Plaintiffs moved for summary judgment asserting there were no questions of material fact, that they were owners of all the royalties of coal and lignite mined by the open pit or strip mining methods, that the Supreme Court in Acker v. Guinn, (Tex.1971) 464 S.W.2d 348, held that a mineral reservation as Defendant reserved was not effective to reserve minerals that would be mined by open pit or strip mining methods; that the coal and lignite was removed by strip mining methods; that the surface was destroyed or substantially impaired by such strip mining methods; and that it was not contemplated that the mineral reservation of Defendants to “all the oil, gas and other minerals,” when mined would result in destruction of the surface estate.

Plaintiffs attached: 1) the deed from Defendants to Minchew, and the mesne conveyances (all referring to the reservation in the Williford-Minchew deed into themselves) 2) the affidavit of Spies that the coal and lignite has been mined by strip mining methods; that said lands were destroyed for agricultural and grazing purposes; that the surface of the lands were consumed or depleted by such strip mining; 3) the affidavit of J. A. Hill, land man for the mining company, which states he personally informed Plaintiffs their land would be strip mined for the production of lignite, and the surface would be destroyed for any use by them for agricultural purposes; and that the tract has been strip mined and the lignite removed. Hill further stated that on the land in question, the lignite was 40 to 50 feet below the surface, and was recoverable only by the method of open pit or strip mining, “where the 40 to 50 feet of overburden is stripped off, which in effect, removes the surface down to the lignite.”

Defendants replied to Plaintiffs’ motion for summary judgment asserting fact issues were raised as to: whether the reservation of “oil, gas and other minerals” included the coal and lignite because they had previously severed the mineral estate including the coal and lignite by lease; whether the surface estate has actually been consumed or the utility destroyed for agricultural or grazing purposes, and other asserted fact issues hereinafter discussed.

Defendants attached the affidavit of C. N. Williford that Defendants prior to the conveyance with reservation to Minchew, had severed the coal and lignite by lease to Steward; that such lease states the parties contemplated the use of strip mining to recover the coal and lignite; and further that the surface of the land has not been destroyed or substantially impaired for agricultural or grazing purposes by the strip mining, in that the top soil was replaced after the mining and that trees and coastal bermuda have been planted, and the surface estate has probably been improved.

The trial court rendered summary judgment that Plaintiffs are owners of all the coal and lignite royalties, and that Defendants do not own any interest in the royalties.

Defendants appeal on one point: “The trial court erred in granting the Motion for Summary Judgment”.

The question for determination is whether Plaintiffs established as a matter of law that Defendants’ mineral reservation did not reserve a one-half interest in the coal and lignite.

Our Supreme Court in Acker v. Guinn, (Tex.1971) 464 S.W.2d 348, held that a mineral deed conveying “an undivided ½ interest in and to all of the oil, gas and other minerals" under a certain tract of land, conveyed no interest in the iron ore. The court held that while the iron ore is a mineral, since it had to be mined by open pit or strip mining methods which would destroy or substantially impair the surface, it was not in the contemplation of the parties to be conveyed. The court further held:

“A grant or reservation of minerals by the fee owner effects a horizontal severance and the creation of two separate and distinct estates: an estate in the surface and an estate in the minerals. * * * The parties to a mineral lease or deed usually think of the mineral estate as including valuable substances that are removed from the ground by means of wells or mine shafts. This estate is dominant, of course, and its owner is entitled to make reasonable use of the surface for the production of his minerals. It is not ordinarily contemplated, however, that the utility of the surface for agricultural or grazing purposes will be destroyed or substantially impaired. Unless the con trary intention is affirmatively and fairly expressed, therefore, a grant or reservation of ‘minerals’ or ‘mineral rights’ should not be construed to include a substance that must be removed by methods that will, in effect, consume or deplete the surface estate.” (emphasis supplied.)

The problem before us is one of interpretation of the rule announced in Acker v. Guinn and applying the rule to the case at bar. When our Supreme Court said, as quoted in the preceding paragraph, “Unless the contrary intention is affirmatively and fairly expressed, therefore, a grant or reservation of ‘minerals’ or ‘mineral rights’ should not be construed to include a substance that must be removed by methods that will, in effect, consume or deplete the surface estate,” did the court mean that “the contrary intention” must be expressed in the instrument itself containing the grant or reservation, or may such “contrary intention” be shown by proof of attending circumstances?

If the “contrary intention” must be expressed in the instrument containing the grant or reservation, then it becomes a matter of construction of the language used in the grant or reservation and thereby becomes a question of law, as contended by Plaintiff-Appellee, Spies. On the other hand, if the “contrary intention” may be shown by proof of the attending circumstances, then such “contrary intention” becomes a fact question and thereby raises a material fact issue as contended by Defendant-Appellant, Williford. Defendant-Appellants argue that because of the existence of the 1949 recorded lease from the Willi-fords to Roger Steward, hereinabove referred to, (which specifically contemplated that the coal and lignite would be mined by open pit or strip mining methods), that Plaintiff-Appellee Spies was put on at least constructive notice that the surface would be destroyed or impaired for agricultural or grazing purposes by such mining; and that this raised a fact issue regarding the intention of the parties to “destroy or substantially impair” the surface by mining the coal and lignite. We do not agree with this argument.

The 1949 lease from Willifords to Steward served only as notice to Plaintiff-Appel-lees that the property was under a coal and lignite lease. There is nothing in this instrument to place Plaintiff-Appellees on notice that the Willifords are entitled to one-half of the royalties from the coal and lignite where the same were removed by open pit or strip mining methods. The only instrument that places Plaintiff-Appellees on notice of Defendant-Appellants’ claim to the coal and lignite royalties in question is that containing the mineral reservation in the original deed from Williford to Min-chew, based upon the term “other minerals.” The deed from the Willifords to Min-chew does not in any way directly or indirectly make reference to the 1949 lease from the Willifords to Steward, herein-above mentioned.

The deed (from Willifords to Minchew) in the case at bar is like the deed in Acker in that, “Aside from the general reference to ‘other minerals’, there is nothing in the deed even remotely suggesting an intention to vest in the (grantor) the right to destroy the surface.” Under the rule in Acker, therefore, the reservation in our deed of “other minerals” does not reserve minerals such as lignite which must be mined by open pit or strip mining methods.

The deed in question (from Williford to Minchew) is not ambiguous. It therefore follows that it became the duty of the trial court to give the deed the above construction as a matter of law, without looking to the attending or surrounding circumstances for explanation. Our Supreme Court in Anderson & Kerr Drilling Co. v. Bruhlmeyer, (1940) 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217, enunciated this rule applicable to the case at bar: —“When the instrument by its terms plainly and clearly discloses the intention of the parties, or is phrased in language not fairly susceptible of more than one interpretation, the intention of the parties is to be ascertained by the court as a matter of law from the language used in the writing and without aid from evidence as to the attending circumstances.” Also see Heinatz v. Allen, (1949) 147 Tex. 512, 217 S.W.2d 994.

We therefore hold that as a matter of law the Willifords’ reservation of “other minerals” did not include coal and lignite that must be removed by the open pit or strip mining methods, and it necessarily follows that Defendant-Appellants the Willi-fords are not entitled to any of the royalties from the mining of such coal and lignite.

Defendant-Appellants contend that the summary judgment proof raised material fact issues that necessitate a reversal of the trial court’s judgment. We do not agree that any material fact issues are raised by this record.

First, Defendant-Appellants urge that a fact issue is raised regarding whether the strip mining methods would destroy or substantially impair the surface for agricultural or grazing purposes. We do not agree. The affidavit of J. A. Hill, senior land man for Texas Utilities Services, Inc., stated that the top soil or overburden was removed and stripped off to a depth of 40 to 50 feet down to the lignite deposits, that the lignite was removed by the open pit or strip mining method, and that he personally informed Plaintiff-Appellees that the surface of their land would be destroyed for any agricultural or grazing purposes.

This summary judgment evidence was corroborated by the affidavit of Plaintiff-Appellant Harvey R. Spies. Defendant-Appellants rely upon the affidavit of Defendant-Appellant C. N. Williford, which states that after removal of the coal and lignite, the mining company “replaced the topsoil, planted trees and coastal bermuda which, in fact, has probably improved the surface estate.” Defendant-Appellants contend that even though they destroyed the surface for agricultural and grazing purposes in mining the lignite, that since they replaced the topsoil and planted trees and grass thereafter that a fact issue is raised concerning destruction of the surface. We overrule this contention, because it is undisputed that the strip mining destroyed the surface for agricultural or grazing purposes. The fact that the mining company may have taken steps after completion of the mining operations to replace the soil and replant trees and grass is, in our opinion, immaterial.

Defendant-Appellants next argue that a fact issue was raised regarding whether the parties “contemplated any impairment of the surface estate by mining operations other than tunnelling or shafting.” We overrule this contention, because in our opinion the “contemplation” of the parties must be ascertained from the wording used in the original mineral reservation in the 1950 deed from Willifords to Minchew. Acker v. Guinn, supra, has held that the term “other minerals” is not ambiguous, and without an expression in the deed of reservation that the surface will be destroyed or impaired, that minerals that must be strip mined belong to the surface estate.

Defendant-Appellants further contend that a fact issue is raised by the record concerning whether the Plaintiff-Appellees are estopped to assert that Defendant-Appellants’ mineral reservation does not include coal and lignite. This fact issue, they say, is raised because on April 3, 1970, Plaintiff-Appellees Spies and wife executed a deed to L. D. Cross, Trustee, conveying the land in question wherein Spies and wife retained a mineral reservation of “all of the oil, gas and other minerals.” Defendant-Appellants say that because this mineral reservation is similar and in substantially the same wording as in the deed from Willi-fords to Minchew, that Plaintiff-Appellees are estopped to assert that such reservation does not include coal and lignite. We do not agree. This activity by the Plaintiffs has not caused any detriment to the Defendants and will not, therefore, support the plea of estoppel. Moreover, the summary judgment proof also shows a quitclaim deed from L. D. Cross, Trustee, to Harvey R. Spies and wife, dated February 21, 1975, wherein L. D. Cross, Trustee, quitclaimed “all my right, title and interest in and to all royalties payable on production of coal and lignite” on the land in question. Obviously, Plaintiff-Appellee Spies and wife base their claim to the lignite royalties on this deed, and not upon the mineral reservation in their 1970 deed to L. D. Cross, Trustee. For this reason, there could not possibly be any fact issue of estoppel against Plaintiff-Appellees.

Finally, Defendant-Appellant complains of the failure of the trial court to join as Cross-Defendants, Texas Utilities Services, Inc., and Texas Utilities Services, Inc., d/b/a Industrial Generating Company, the alleged holders of the lignite royalty funds in controversy. Defendant-Appellants filed a motion for leave to join said parties as cross-defendants, attached to which was a Third-Party Cross-Action. However, the record does not contain any order by the trial court granting leave to join such Third-Party Defendants, nor does it show any request for a setting of such motion for hearing, nor does it show any service of citation pursuant to such Third Party Cross-Action. In this state of the record, Defendant-Appellants have waived their rights to implead said Cross-Defendants and cannot be heard to complain on this point on appeal. See Rule 38, Texas Rules of Civil Procedure; Antwine v. Reed, (Waco, Tex.Civ.App.1946) 194 S.W.2d 614, reversed on other grounds 145 Tex. 521, 199 S.W.2d 482. The nature of the case at bar is by Spies and wife against Williford and wife to adjudicate entitlement to the coal and lignite royalties in controversy as between these parties. There is nothing in this record to show that Third-Party Cross-Defendants as holders of the royalty monies are necessary parties to this suit.

Judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    William Donald KELLEY, Appellant, v. TEXAS STATE BOARD OF DENTAL EXAMINERS, Appellee.
    No. 17664.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 31, 1975.
    Rehearing Denied Dec. 5, 1975.

      John W. Key, Jr., Athens, for appellant.
    John L. Hill, Atty. Gen., Bill A. Campbell, Asst. Atty. Gen., Austin, for appellee.
   OPINION

MASSEY, Chief Justice.

Applicable test as applied to the instant appeal is by the “Substantial Evidence Rule”.

The State Board of Medical Examiners, in a prior separate and distinct action, obtained an injunction preventing William Donald Kelley, a licensed dentist, from engaging in the practice of medicine. See Kelley v. Texas State Board of Medical Examiners, 467 S.W.2d 539 (Fort Worth Civ.App., 1971, writ ref., n. r. e.).

After Kelley’s petition for writ of certiorari in the Supreme Court of the United States was denied, with rehearing overruled June 12, 1972 (405 U.S. 1073, 92 S.Ct. 1494, 31 L.Ed.2d 807, 407 U.S. 916, 92 S.Ct. 2431, 32 L.Ed.2d 692) the State Board of Dental Examiners received complaint that Kelley had been or was guilty of dishonorable conduct, malpractice or gross incompetency in the practice of dentistry and/or that he had been or was guilty of deception or misrepresentation for the purpose of soliciting or obtaining patronage.

The complaint was docketed, with notice issued, and there was on July 28, 1973 in Dallas, Texas a hearing thereon held by the State Board of Dental Examiners. Kelley appeared and entered his plea of not guilty. The Board entered findings pursuant thereto which included one that Kelley had caused to be printed the booklet entitled “One Answer to Cancer” through the Kelley Research Foundation (bearing on its face “William Donald Kelley, D.D.S., M.S.” as author) and that he circulated the booklet to persons or to his patients as alleged in the complaint upon which hearing was held; that by reason thereof and because Kelley had been found guilty of the offense of practicing medicine in Texas without a license in violation of the Texas Medical Practice Act (the subject matter in Tex.Civ.App., 467 S.W.2d 539), was guilty of obtaining a fee by fraud or misrepresentation which is prohibited by subsection (b) of Article 752b, Vernon’s Texas Penal Code (now Art. 4548g of Vernon’s Texas Civil Statutes).

The order of the Board was one of suspension for five (5) years. Kelley appealed therefrom to the District Court of Tarrant County, Texas.

In the District Court there were a great many facts stipulated in writing by the parties and also stipulated exhibits. All stipulations were affirmative in character; in other words there was no stipulation to the effect that anything essential to the action of the Board in the nature of evidence was not existent and available at such time. Under the Substantial Evidence Rule it is not mere evidence introduced before an administrative agency to which a court looks (upon its proof) in testing the propriety of the order by the agency, but rather to the evidence which then existed— which could have been introduced — as that by which propriety of the order is tested. Cook Drilling Co. v. Gulf Oil Corporation, 139 Tex. 80, 161 S.W.2d 1035 (1942). The Statement of Facts brought forward shows that there was no evidence in addition to the stipulations tendered at the hearing in the District Court.

On the appeal Kelley presents his contentions of error as: (1) that the trial court erred in holding that the order of the Board of Dental Examiners had reasonable support in substantial evidence; (2) that since the Board of Medical Examiners and the Board of Dental Examiners were both but an arm or agency of the State there was collateral estoppel of proceedings to suspend his dental license; and (3) that there was want of “due process” of law under the Fourteenth Amendment of the United States Constitution.

Kelley’s theory by Point of Error No. 1 is that since by prior adjudication his acts constituted the offense of illegally or improperly “practicing medicine” and since for suspension of his license as a dentist he must have been illegally or improperly “practicing dentistry” his action could not be regarded as unprofessional conduct “in the practice of dentistry”. We overrule this point.

The former Article 752b, Vernon’s Texas Penal Code, is now to be found in Vernon’s Texas Civil Statutes, under Title 71, “Health — Public”, Chapter Nine, “Dentistry”, Articles 4546a to 4551h, inclusive. Among these articles is Art. 4548g, “Unprofessional conduct”.

Article 4548g reads as follows: “It shall be unlawful for any person, firm, or corporation to engage in or be guilty of any unprofessional conduct in the practice of dentistry, directly or indirectly. Any ‘unprofessional conduct,’ as used herein, means and includes any one or more of the following acts, to wit: . (b) Obtaining any fee by fraud or misrepresentation; . (e) Making use of any advertising statements of a character tending to mislead or deceive the public; . . . .”

Article 4548h, “Refusal, revocation, cancellation or suspension of license” provides (Sec. 4) that in instances of violation of any of the statutory provisions relative to the practice of dentistry, or any of the provisions of Chapter 7, Title 12 of the Penal Code (now under Civil Statutes, the group of articles including 4548g, etc.) the Board of Dental Examiners are authorized to revoke, cancel or suspend licenses that may have been issued upon a majority of the Board finding such an occurrence.

Our holding in this case is that “practicing dentistry” encompasses and includes the practicing of medicine under “color” of the practice of dentistry; and that to do so is unprofessional conduct in the practice of dentistry where a fee is obtained therefor. To collect a fee therefor under such circumstances is to obtain such by fraud or misrepresentation. Additionally, we hold, the use of the “One Answer to Cancer” booklet by Kelley was such as to support the Board’s finding of a use of advertising statements of a character tending to mislead or deceive the public.

Likewise overruled is Kelley’s second point of error, to effect that the rule of collateral estoppel prevented action to suspend his license. In this case we have an attempt to use an estoppel doctrine against the State as it functions in a governmental and not a proprietary capacity. While there might be an exception, as where there would be no interference with the exercise of governmental functions (see City of Hutchins v. Prasifka, 450 S.W.2d 829, 836 (Tex.Sup., 1970)) the rule is that where the action challenged is by the state, in its governmental capacity, for reasons of public policy there may not be an estoppel. 31 C.J.S. Estoppel § 138, p. 675, “Estoppel against Public Government, and Public Officers”; 1 A.L.R.2d 338, Comment Note: “Applicability of doctrine of estoppel against government and its governmental agencies”.

Kelley’s third point of error is not briefed. No fundamental error is apparent. We treat the point as waived for the failure to brief. T.R.C.P. 418, “Briefs: Contents.” There is no unconstitutionality under the due process clause of the United States Constitution. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).

Judgment is affirmed.


author: O’QUINN, Justice.

text:
    J. Speed CARROLL, Individually and as Independent Executor under the Will of Mary D. Durning, Appellant, v. Bob BULLOCK, Comptroller of Public Accounts of the State of Texas, Appellee.
    No. 12308.
    Court of Civil Appeals of Texas, Austin.
    Nov. 5, 1975.

      Frank N. Ikard, Jr., Clark, Thomas, Deni-us, Winters & Shapiro, Austin, for appellant.
    John L. Hill, Atty. Gen., Catherine Belt Jacob, Asst. Atty. Gen., Austin, for appel-lee.
   O’QUINN, Justice.

Stipulated facts in this case show that Mary D. Durning, a resident of Texas, died in May of 1972, leaving a will by terms of which she named J. Speed Carroll, her grandson and a resident of New York, the sole beneficiary and independent executor. Carroll filed an inheritance tax return with the Comptroller of Public Accounts of Texas showing no tax due. The Comptroller by tax statement advised Carroll that an inheritance tax, penalties and interest were due in the amount of $1,207.99. The Comptroller brought suit in district court of Travis County to recover the tax with penalties and interest.

Both parties moved for summary judgment, and the trial court entered judgment against Carroll for the tax and additional charges. Carroll has appealed.

The sole issue is whether Article 14.01(D), Taxation-General, Title 122A, providing that the basic inheritance tax “shall not apply to residents of those states which have no inheritance tax law,” applies to a nonresident beneficiary, or to a nonresident decedent, who resides in a state which has an estate tax law, but no inheritance tax law. (Article 14.01, V.A.T.S., Tax.-Gen., as amended Acts 1971, 62nd Leg., p. 2943, ch. 974, sec. 1, eff. Aug. 30, 1971).

Carroll contends that resident, as used in the statute, refers to beneficiaries, rather than to decedents, and that therefore as a beneficiary who is a resident of the State of New York, which has no inheritance tax law but does have an estate tax law, he is excused from payment of inheritance tax under terms of the statute.

Appellant brings two points of error attacking the action of the trial court granting the Comptroller’s motion for summary judgment and denying Carroll’s motion for judgment.

We will overrule the points of error and affirm the judgment of the trial court.

In arriving at the purpose and intent of a statute it is proper to consider the history of the subject matter, the end to be attained, and the purposes to be accomplished. Magnolia Petroleum Company v. Walker, 125 Tex. 430, 83 S.W.2d 929, 934 (1935); Calvert v. Fort Worth National Bank, 163 Tex. 405, 356 S.W.2d 918, 921 (1962).

Texas has levied an inheritance tax since 1907. (Acts 1907, 30th Leg., p. 496, ch. 21, sec. 1). The Act of 1907 was placed in the Code of 1911 as Articles 7487 et seq. In 1923 the Legislature revised the inheritance tax laws in the form substantially incorporated in the Code of 1925 as Articles 7117 et seq. (Acts 1923, 38th Leg., 2nd C.S., p. 63, ch. 29; R.S.1925, Arts. 7117 et seq.). Article 7117 was the immediate predecessor of Article 14.01, Title 122A, Taxation-General, as enacted by the Legislature in 1959. (Acts 1959, 56th Leg., 3rd C.S., p. 187, ch. 1). It is the most recent enactment of Article 14.01, passed by the Legislature in 1971, under consideration in this lawsuit.

The basic language of the inheritance tax law, contained in the opening section of each enactment from 1907 to the present, has remained substantially unchanged:

All property in Texas, “whether belonging to inhabitants of this State or to persons who are not inhabitants," when passing by will or by laws of descent of Texas or any other state, or by deed, grant, sale, or gift made or intended to take effect after “death of the grantor or donor,” is subject to a tax for the benefit of the State, according to classifications set out in succeeding articles of the Act. (Emphasis supplied)

The language with which we are directly concerned in this case was placed in Article 7117 (R.S.1925) in 1945 when provisions for reciprocal exemptions were first added to the inheritance tax law. (Acts 1945, 49th Leg., p. 148, ch. 98). The same exemptions found in that Act were incorporated in Article 14.01 in the codification accomplished by the Legislature in 1959 (Title 122A, Taxation-General) and were again set out, in almost identical words, in Article 14.01 as amended in 1971.

The Legislature clearly indicated in Article 7117, as amended in 1945, that the word “resident” was intended to refer to decedents and not to beneficiaries. In setting out certain classifications following the opening general statement, amended Article 7117 provided that the tax imposed “in respect to personal property of non-residents” would not be payable “if the grant- or or donor . . . was a resident of” a jurisdiction that did not impose a transfer or inheritance tax, or if the jurisdiction “of the residence of the grantor or donor” provided an exemption under reciprocal provisions of law. (Emphasis added) There followed a short definition of states and foreign countries for purposes of fixing nonresident status, after which the statute added the proviso: “Provided further that the provisions of this Act shall not apply to residents of those states which have no inheritance tax law.”

When Article 14.01 was last amended, in 1971, the only change in substance was the addition of subsection (B) “to change the time for the presumption that a gift is made in contemplation of death,” as announced in the caption. (H.B. 638, Acts 1971, 62nd Leg., p. 2943, ch. 974). No other change in Article 14.01 is expressed in the caption, and no other change in substance is found in the statute. All other changes are in arrangement of paragraphs and in lettering or numbering of the subsections. For example, the proviso, that “. . . provisions of this Act shall not apply to residents of those states which have no inherit-anee tax,” which appeared in the same position in both Article 7117 and Article 14.01 (as enacted in 1959), was placed in a separate subsection (D) and slightly altered to read: “The provisions of this Chapter [for Act] shall not apply to residents of those states which have no inheritance' tax.”

It is obvious that as used in amended Article 7117 (1945), in Article 14.01 (1959), and again in Article 14.01 as enacted in 1971, the word “residents” can and does refer only to decedents and not to beneficiaries. Nowhere in the statutes did the Legislature concern itself with the residence of the beneficiary of property passing from the decedent.

As pointed out by the Supreme Court in Calvert v. Fort Worth National Bank, supra, death duties in essence rest historically upon the principle that “death is the generating source from which the particular taxing power takes its being, and * * * it is the power to transmit, or the transmission from the death to the living, on which such taxes are more immediately rested.” To this observation, having before it Article 14.01 as enacted in 1959, the Supreme Court added: “From a reading of our inheritance tax statutes, we think the basic plan and purpose of the Legislature was to levy the tax upon the privilege of succeeding to property belonging to a decedent at the time of his death.” (Emphasis added) (356 S.W.2d 921, col. 1)

It is elementary that the inheritance tax statutes, enacted at different times and carried forward in amended form, are in pari materia and must be construed together to ascertain and carry into effect the intent of the Legislature.

The trial court correctly found that Article 14.01(D) is inapplicable to a nonresident beneficiary and applies only to decedents who are residents of states which have no inheritance tax law.

The judgment of the trial court is affirmed.


author: CADENA, Justice.

text:
    S. Peter LAMBROS et ux., Appellants, v. The STANDARD FIRE INSURANCE COMPANY, Appellee.
    No. 15398.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 5, 1975.
    Rehearing Denied Dec. 3, 1975.
    Levey & Goldstein, San Antonio, for appellants.
    Joe Meador, San Antonio, for appellee.
   CADENA, Justice.

Plaintiffs, S. Peter Lambros and wife, Sophia P. Lambros, appeal from a judgment rendered n. o. v., that they take nothing in their suit against defendant, The Standard Fire Insurance Company, to recover, under the so-called “all risks” homeowner’s policy, for damage allegedly caused to plaintiffs’ dwelling by underground water.

In their first amended original petition, plaintiffs alleged that their dwelling “suffered serious structural damage and structural slab collapse caused by movement of water below the ground surface exerting pressure on the foundation, floors, sidewalks, driveways, walls. . . . ” In their first supplemental petition, plaintiffs, in answer to defendant’s allegations that the loss suffered by plaintiff was not within the coverage afforded by the policy, but fell within certain exclusions set out by defendant in its pleading, alleged that the damage “was caused by and resulted from water below the surface of the ground, including that which exerted pressure on (or flowed, seeped or leaked through) sidewalks, . foundations, walls, basements ... or through doors, windows or any other openings in such . . . foundations, walls or floors.” Plaintiffs conceded that such loss was excluded in the standard printed policy form, but that such exclusion, being exclusion d(3), was deleted in consideration of the payment by plaintiffs of an additional premium. They further alleged, in the alternative, that the loss was caused by and resulted from “settling, cracking, bulging, shrinkage, expansion of foundations, walls, floors, ceilings, roof structures, . . . ; and that said loss was not excluded under the terms of said policy since said loss was caused by a collapse of the building or a part thereof and said loss was otherwise covered under Plaintiffs’ said policy.” In its original printed form, the policy contained the following exclusion:

d.Loss caused by or resulting from:
(1) Flood, surface water, . . . ;
(2) water which backs up through sewers or drains;
(8) water below the surface of the ground including that which exerts pressure on (or flows, seeps or leaks through) . foundations, walls, basement or other floors, ... or through . openings in such . . . , foundations, walls or floors[.]

Attached to the policy is Form No. HO-353, which is captioned, “Loss caused by water which backs up through sewers and drains and subsurface water assumption endorsement.” This endorsement reads: “In consideration of an included addition premium, Exclusions d(2) and d(3), in the form attached to this policy, under the caption ‘Perils insured Against’ are hereby eliminated. ...”

Plaintiffs’ policy, then, insured against “all risks of physical loss” except:

a. [not applicable here]
b. [not applicable here]
c. [not applicable here]
d. Loss caused by or resulting from:
(1) flood, surface water . ;
(2) [deleted]
(3) [deleted]
e. Loss caused by or resulting from freezing . . . ;
f. [not applicable]
g. Loss caused by earthquake, landslide or other earth movement;
h. [not applicable]
i. Loss caused by inherent vice, wear and tear, deterioration; rust, rot, mould or other fungi; dampness of atmosphere,
j. [not applicable]
k. Loss . . . caused by settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings, roof structures . . . ;
The foregoing Exclusions a through k shall not apply to ensuing loss caused by fire, smoke or explosion and Exclusions i, j and k shall not apply to ensuing loss caused by collapse of building, or any part thereof, water damage . . . , provided such losses would otherwise be covered under this policy.

The jury answered the special issues as follows: (1) Plaintiffs’ dwelling sustained a physical loss on or about July 1, 1972. (2) The loss was caused by, or resulted from, water below the surface of the ground, including that which exerted pressure on sidewalks, drives, foundations, walls, subbasements or other floors. (3) The loss was not caused by, nor did it result from, surface water. (4) The loss was not the result of, or caused by, earthquake, landslide or earth movement. (5) The loss was not caused by inherent vice. (6) The loss was caused by “settling, cracking, bulging, shrinkage or expansion of foundations, walls, floors, ceilings, roof structures, walks, drives, curbs, fences or retaining walls.” (7) The loss “was caused by a collapse of the building or any part thereof or by water damage.” (8) Defendant waived the requirement that plaintiffs file a proof of loss within 91 days after the loss. (9) The full and reasonable cost of repair of plaintiffs’ dwelling, without deduction for depreciation, is $32,301.00.

After defendant filed its motion urging the court that the answers to issues 1, 2, 3, 4, 5, 7 and 9 be disregarded, the trial court entered judgment sustaining defendant’s motion for judgment n. o. v. insofar as it relates to the answer to issue 7 and, after disregarding the answer to issue 7 on the ground that it was without support in the evidence, decreed that plaintiffs take nothing.

It is clear that the jury’s finding, in responses to issue 6, that the loss was caused by settling, cracking, etc., brings the loss within exclusion k. Plaintiffs insist that this finding does not prevent recovery because, since the exclusion applicable to loss caused by underground water had been eliminated, and since the jury found that the loss was caused by underground water, exclusion k is inapplicable. As we understand this contention, the argument is simply that, since, as a result of the deletion of the underground water exclusion, the policy covers loss caused by underground water, all losses caused by underground water are covered and the exclusions which are still part of the policy are not applicable to such losses.

We are thus faced with the problem of determining the extent, if any, to which the deletion of a particular exclusion or exclusions, limits the applicability of remaining exclusions.

Giving to the deletion of exclusion d(3) its full effect, and reading such effect into the coverage provisions in the manner most advantageous to plaintiff, we arrive at a policy which insures against “all risks of physical loss, including loss caused by underground or subsurface water, except . k. loss caused by settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings, roof structures, walks, drives, curbs, fences, retaining walls or swimming pools.” Even after this plaintiff-oriented rewriting, it is clear that loss caused by settling, etc. is not covered. The cause of the settling is irrelevant, unless exclusion k is also rewritten to limit it to settling, etc., not caused by underground water. We conclude that the deletion of the subsurface water exclusion did not eliminate exclusion k or limit it to settling not caused by underground water.

Plaintiffs next argue that, by the express terms of the paragraph following exclusion k, that exclusion is not applicable here, since exclusion k is made inapplicable to “ensuing loss and collapse of building, or any part thereof,” or water damage, provided such loss would otherwise be covered under the policy.

Admittedly, the “ensuing loss” exception to exclusions i, j and k presents some difficulty. At the outset, there are two possible interpretations of the exception. The first interpretation would restrict the modifying phrase, “ensuing loss” to building collapse, as though the exception were, insofar as here relevant, written in the following form:

. Exclusions i, j and k shall not apply to
(1) ensuing loss caused by collapse of building or any part thereof,
(2) water damage.

The second possible interpretation would construe the exception as though it were written in the following form:

. Exclusions i, j and k shall not apply to ensuing loss caused by
(1) collapse of building or any part hereof,
(2) water damage.

Despite the rule that insurance contracts are to be construed against the insurer and in favor of the insured, we believe that the second interpretation of the exception is the only reasonable construction. That is, the exception to exclusions i, j and k is applicable only to “ensuing loss” caused by collapse of the building, or any part thereof, and to “ensuing loss” caused by water damage. This is the construction adopted in McKool v. Reliance Insurance Company, 386 S.W.2d 344 (Tex.Civ.App.—Dallas 1965, writ dism’d). While there is no indication in the McKool opinion that any other interpretation was urged by the insured, the interpretation there adopted gives to the language of the exception, when the contract and, particularly, the coverage provisions are construed as a whole. To construe the exception as making exclusions i, j and k completely inapplicable to “water damage” rather than only to “ensuing loss caused by water damage” would effectively destroy all of exclusion d, which excludes most forms of water damage from the policy’s coverage. This would clearly be the result if we consider the exclusionary provisions in their original form as they appeared in the original version of the printed policy. It can, of course, be argued that in the case before us, since exclusions d(2), relating to loss resulting from water which backs up in sewers and drains, and d(3) relating to loss resulting from the action of underground water, such a construction would amount to no more than a recognition of the effect of the deletion of such exclusions. Nevertheless, such a construction would effectively destroy exclusion d(l), relating to damage caused by surface water, unless we give to the same language two different meanings, making the exception applicable to all losses resulting from subsurface water and water backing up in sewers and drains, but restricting its applicability only to “ensuing loss” caused by surface water damage.

To “ensue” means “to follow as a consequence or in chronological succession; to result, as an ensuing conclusion or effect.” Webster’s New International Dictionary 852 (2d ed., unabridged, 1959). An “ensuing loss,” then, is a loss which follows as a consequence of some preceding event or circumstance. McKool, 386 S.W.2d at 345. Assuming that plaintiffs’ loss resulted from the action or presence of water beneath the surface, it nevertheless cannot be contended that such loss was an “ensuing loss” caused by water damage. Such a conclusion would involve “a backward application of the ensuing loss exception.” Gollaher, op. cit, 24 Sw.L.J. at 651. Such a construction, in effect, reads “ensuing” out of the exception. If we give to the language of the exception its ordinary meaning, we must conclude that an ensuing loss caused by water damage is a loss caused by water damage where the water damage itself is the result of a preceding cause. What is the preceding cause which gives to the exception the effect of taking the ensuing loss out of the reach of exception k? Again, the plain language of the exception compels the conclusion that the water damage must be a consequence, i. e., follow from or be the result of the types of damage enumerated in exception k. “Ensuing loss caused by water damage” refers to water damage which is the result, rather than the cause, of “settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings. . . . ” Since the evidence in this case, even when viewed in the light most favorable to plaintiffs, conclusively establishes that water damage was the cause, rather than the consequence, of settling, etc., exclusion k is applicable. See Park v. Hanover Ins. Co., 443 S.W.2d 940, 942 (Tex.Civ.App.—Amarillo 1969, no writ).

Plaintiffs next contend that they are entitled to recover under the portion of the exception which makes exclusion k inapplicable to “ensuing loss caused by collapse of building, or any part thereof.”

Our Supreme Court, saying that the term “collapse” is unambiguous, defined it as “to fall or shrink together, to cave in, to fall into a flattened, distorted or disorganized state.” With reference to partial collapse, the Court said: “[A] partial collapse would certainly mean that the foundation or walls or other supporting structures had been impaired with respect to their function of supporting the superstructure. We think the term can be defined properly as a sinking, bulging, breaking or pulling away of the foundation or walls or other supports so as materially to impair their function and to render the house unfit for habitation.” Employers Mut. Cas. Co. of Des Moines, Iowa v. Nelson, 361 S.W.2d 704, 708, 709 (Tex.1962).

In this ease there is no evidence of falling in or loss of shape, no reduction to flattened form or rubble. There is, therefore, no evidence of a collapse of the building. With reference to a partial collapse, there is ample testimony to the effect that unless repairs are made to plaintiffs’ home, a collapse “could” occur in the future. The evidence discloses cracks in the walls, doors “dragging out of line,” separations on the terrazzo floor, imperfections in the terrace, and a pulling away of the stairs from the house. Some of the supporting piers have dropped, causing the house to settle some two to three inches in the front. There is evidence of the “shearing” of one stud column and the cracking of others. One of defendant’s witnesses testified that if the “sheared” column had been “left alone and left unabated and continuing” the entire structure might have come down. This witness testified that there was a partial collapse of the structure, although he stated there had been no collapse of the foundation.

The witness who testified that there had been a partial collapse of the structure defined “collapse” as “failure of the structure” and added, “When you think of collapse, in engineering terms, you think of a structure that just falls completely down; and a partial collapse is where part of it falls down. In engineering terminology that’s the way we use it, and that’s the way I’m referring to it.”

It is clear that this witness did not use the term “partial collapse” in the same sense as that term was used by our Supreme Court in Nelson, since the definition given by the witness would make it possible to find “partial collapse” even though the dwelling had not been rendered “unfit for habitation.” It is clear that the Supreme Court considered the requirement that the dwelling be rendered unfit for habitation an important element of a partial collapse, since in the course of the Nelson opinion there is a clear disapproval of the decision in Jenkins v. United States Fire Ins. Co., 185 Kan. 665, 347 P.2d 417 (1959), where the trial court’s definition was held erroneous because it contained the requirement that the building be rendered unfit for use as a dwelling.

Plaintiffs fail to call our attention to any testimony to the effect that the dwelling in question was rendered unfit for habitation. The evidence relating to the nature of the damage to the structure does not even tend to indicate that the structure is no longer habitable. There is no evidence that the structure is unsafe or even unfit for use as a dwelling.

In view of the highly restrictive meaning which our Supreme Court has given to the terms with which we are concerned, we must conclude that the trial court was correct in ruling that there is no evidence of a collapse or partial collapse of plaintiffs’ home.

Since we have concluded that the judgment in favor of defendant must be affirmed, it is unnecessary to discuss defendant’s 44 cross-points, since the questions raised by such cross-points would become relevant only if we concluded that the judgment in favor of defendant was erroneous.

The judgment of the trial court is affirmed.

      . This specific problem was foreseen in Gollaher, The 1960 Texas Standard Homeowners Policy, 24 Sw.L.J. 636, 657 (1970), with specific reference to the applicability of the “settling” exclusion where the underground water exclusion has been deleted.

      . Cf. Travelers Fire Ins. Co. v. Whaley, 272 F.2d 288, 290-91 (10th Cir. 1959), treating “collapse” as an ambiguous term.


text:
    CAL-TEX BEEF PROCESSORS, INC., Appellant, v. FROZEN FOOD EXPRESS, INC., Appellee.
    No. 5482.
    Court of Civil Appeals of Texas, Waco.
    Nov. 6, 1975.
    Rehearing Denied Dec. 4, 1975.

      Jack Hazlewood, Amarillo, for appellant.
    Robinson, Fotheringham & Simpson, Amarillo, for appellee.
   OPINION

JAMES, Justice.

This is a sworn account case. Plaintiff-Appellee Frozen Food Express, Inc., brought this suit in the nature of a sworn account under Rule 185, Texas Rules of Civil Procedure, against Defendant-Appellant Cal-Tex Beef Processors, Inc. “d/b/a Trim’d Rite Meat, and d/b/a Food Industries, and d/b/a Cal-Tex Warehouse”; for two freight bills totalling $1926.00 plus reasonable attorney’s fees under Article 2226, Vernon’s Texas Civil Statutes. The Defendant-Appellant Cal-Tex answered by filing a sworn denial. After trial before the court without a jury, the trial court awarded judgment for Plaintiff-Appellee Frozen Food Express, Inc., as prayed for against Defendant-Appellant Cal-Tex Beef Processors, Inc., in the amount of $1926.00 plus interest to date of judgment, together with attorney’s fees through the trial court of $647.60 with the further provision for attorney’s fees in amount of $770.40 if the cause should be appealed. From this judgment Defendant-Appellant Cal-Tex appeals. We reverse and remand.

Defendant-Appellant Cal-Tex contends that since it filed a sworn denial to Plaintiff-Appellee’s sworn account, that Defendant had thereby placed in issue the justness and correctness of Plaintiff’s claim as to each and every item therein, as provided by Rule 185. We sustain this contention.

Attached to Plaintiff’s petition is an affidavit of one H. J. Everett to the effect that “the annexed account _ is _just and true, and that it is due and that all just and lawful offsets, payments and credits have been allowed.” Also attached is a statement shown to be issued from Plaintiff-Appellee Frozen Food Express, Inc., addressed to “Food Industries, Trim’d Rite Meat, c/o Cal-Tex Beef Processors, Amarillo, Texas,” which statement is dated December 5, 1974, showing a list consisting of two freight bills dated November 30, 1973, and December 26,1973, respectively, totalling $1926.00. Then attached in addition thereto are the two freight bills referred to on the statement above-described. On one freight bill the shipper is shown to be “Food Industries,” and on the other the shipper is shown to be “Trim’d Rite Meat.” Defendant-Appellant Cal-Tex is not shown on either freight bill.

As stated, Defendant-Appellant Cal-Tex filed a sworn denial which recited, “The claim alleged in Plaintiff’s petition which is the foundation of Plaintiff’s action is wholly not just or true.” (Emphasis supplied). Following this was the affidavit wherein the affiant made oath that the above pleading was “in every respect true and correct.”

The trial court permitted Plaintiff to introduce Plaintiff’s petition and attached sworn account into evidence, and based upon same and without further proof, awarded Plaintiff judgment thereupon, in the face of Defendant’s sworn denial. This was error.

Rule 185, as pertinent to this cause provides: “When any action ... is founded upon an open account including any claim for a liquidated money demand . . . founded on business dealings between the parties . . . and is supported by the affidavit of the party, his agent or attorney ... to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall . . . file a written denial, under oath, stating that each and every item is not just or true . . (Emphasis supplied).

We hold that Def endant-Appellant s sworn denial constitutes a sufficient compliance with Rule 185 to put in issue Plaintiff-Appellee’s sworn account, because it unequivocally and unambiguously states in effect “that each and every item is not just or true.” See Vol. 2, McDonald, Texas Civil Practice; par. 7.31, pages 238, 241.

The filing by Defendant-Appellant of his counter affidavit denying the justice of the sworn account has the effect of neutralizing the Plaintiff’s Affidavit; the Plaintiff’s account stands as though it had not been verified, and its character as pri-ma facie evidence is destroyed. The burden then rests on Plaintiff to prove his case as at common law. J. E. Earnest & Co. v. Ward (Comm.App.1941) 137 Tex. 16, 152 S.W.2d 325, opinion adopted. Also see 1 Tex.Jur.2d, “Accounts and Accounting,” paragraph 82, p. 329.

Because of the error of the trial court in awarding Plaintiff judgment based solely upon the sworn account being offered in evidence, we reverse the cause and remand same to the trial court for retrial on the merits.

In view of a retrial of the case, we think it pertinent to discuss another point of error asserted by Defendant-Appellant, to wit, that Defendant Cal-Tex is a Texas Corporation chartered in April 1974, and that all the transactions alleged by Plaintiff in the sworn account occurred in November and December 1973. In other words,'Defendant-Appellant Cal-Tex argues that it was not even in existence when the freight bills in question were incurred, and therefore the alleged transactions could not possibly have been between Plaintiff and Defendant. In effect Cal-Tex is saying that it was a stranger to the transactions in question, and therefore the Plaintiff’s verified account is hearsay as to Cal-Tex.

The trial court did not permit the Defendant-Appellant to prove these matters in avoidance in the cause itself, but permitted Defendant to show these matters by way of a bill of exception.

It has been held that in cases wherein the Defendant is a stranger to the transactions that are the foundation of a sworn account, that such Defendant may controvert and disprove the account sued upon, even in the absence of a sworn denial. Nichols v. Acers Co. (Austin C.A. 1967) 415 S.W.2d 683, error refused NRE; Copeland v. Hunt (Corpus Christi C.A. 1968) 434 S.W.2d 156, error refused NRE. Also see McCamant v. Batsell (1883) 59 Tex. 363, for the reasoning behind such rule.

To the contrary, there is authority for the proposition that proof of such matters in avoidance are required to be based upon a sworn denial. Collins v. Kent-Coffey Mfg. Co. (Eastland C.A. 1964) 380 S.W.2d 59, writ refused.

However, this conflict of authority is not material in the case at bar, because the Defendant-Appellant filed a sworn denial. In any event, under this record Defendant-Appellant Cal-Tex was entitled to prove its matters in avoidance, and the trial court’s exclusion of this evidence was error.

Defendant-Appellant further contends there was no evidence to support the trial court’s finding of fact declaring reasonable attorney’s fees. We overrule this contention. This case was tried before the court without a jury. Article 2226, Vernon’s Texas Civil Statutes contains the following language: “The amount prescribed in the current State Bar Minimum Fee Schedule shall be prim evidence of reasonable attorney’s fees. The court, in non-jury cases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney’s fees without the necessity of hearing further evidence.”

In the case at bar, Plaintiff-Appellee requested the trial court to take judicial knowledge of the State Bar Minimum Fee Schedule, which the court did without objection from Defendant-Appellant. The trial court’s findings concerning reasonable attorney’s fees were within the range prescribed in said Schedule. Appellant’s point is overruled. See Coward v. Gateway National Bank of Beaumont (Tex.1975) 525 S.W.2d 857.

For the reasons hereinabove stated, we reverse the cause and remand same to the trial court for retrial on the merits.

Reversed and remanded.


author: BISSETT, Justice.

text:
    NARRO WAREHOUSE, INC., et al., Appellants, v. Judge Walter M. KELLY, Appellee.
    No. 1000.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 6, 1975.
    Rehearing Denied Dec. 9, 1975.

      James S. Bates, Bates, Hendrix & Marsh, Edinburg, for appellants.
    Oscar B. Mclnnis, Edinburg, Travis Hies-ter, McAllen, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment of a District Court that dismissed a petition for mandamus against the Judge of a County Court at Law for want of jurisdiction.

Narro Warehouse, Inc. and Sonora B. Narro, defendants in a condemnation suit that was pending in the County Court at Law of Hidalgo County, Texas, filed a petition for mandamus in the 92nd District Court of Hidalgo County, Texas, against the Judge of the County Court at Law of Hidalgo County, to compel him to disqualify himself from sitting as a judge in the condemnation case because of interest (Count I), and to vacate and set aside a pre-trial order which required Narro Warehouse, Inc. to deliver certified copies of its income tax returns for the years 1972 and 1973 to the State of Texas, plaintiff in the condemnation case (Count II).

The District Court, following a hearing on a plea to the jurisdiction, sustained the plea and dismissed the petition for mandamus. Narro Warehouse, Inc. and Sonora B. Narro have appealed.

Copies of the pleadings in the condemnation case are not in the record. No evidence was introduced at the hearing on the plea to the jurisdiction.

On April 6,1973, the State of Texas filed a condemnation suit in the County Court at Law of Hidalgo County, Texas, against Narro Warehouse, Inc. and Sonora B. Nar-ro. The suit was docketed as Cause No. CL-6678. The Honorable Walter M. Kelly was and is the judge of that court at all times pertinent to this appeal.

In September 1974, Narro Warehouse, Inc. and Sonora B. Narro brought an action in the United States District Court for the Southern District of Texas, Brownsville Division, which they say was to obtain “certain declaratory action, primarily upon environmental grounds”. Judge Kelly, the County Commissioners, the County Judge, the Sheriff, and the County Clerk, all of Hidalgo County, among others, were named as defendants in that action. Travis Hies-ter, Esq., the attorney who represents the State of Texas in the condemnation case (and in this appeal), filed an answer in the Federal Court action in behalf of Judge Kelly and the Hidalgo County officials and represented them at a hearing, which was held on November 25, 1974. The record is silent as to the present status of the Federal Court action.

Sometime after November 25, 1974, appellants filed a motion in Cause No. CL-6678 that Judge Kelly disqualify himself from sitting in the condemnation case, on the ground that his representation in the Federal Court ease by Mr. Hiester “constitutes acceptance of a gift in the nature of services of a distinct monetary value and as such constitutes a valuable gift by a litigant to a judge”. Judge Kelly, in the order which he signed on December 26, 1974, refused to disqualify himself, and, in disposing of another motion filed by the State requesting that appellants furnish it with certain documents, ordered that Narro Warehouse, Inc. furnish the State copies of its federal income tax returns “for the years 1972 and 1973, which have been certified by the proper authorities of the Internal Revenue Service”.

Appellants then filed a verified petition in the District Court, wherein they sought a writ of mandamus to compel Judge Kelly “to disqualify himself from sitting as a judge in Cause No. CL-6678” (Count I), and “to vacate and set aside the order of December 26, 1974, requiring relators (appellants) herein to provide the State of Texas with certified copies of Federal Income Tax (Returns) for the years 1972 and 1973” (Count II).

Judge Kelly’s unverified answer consisted of pleas to the jurisdiction, in abatement, and a general denial; it was signed by the Honorable Oscar B. Mclnnis, Criminal District Attorney of Hidalgo County. Judge Kelly was represented by Mr. Mclnnis at the hearing on the plea to the jurisdiction. The issue raised by the plea in abatement was resolved when the State was permitted to intervene in the mandamus action.

Since neither Judge Kelly, the defendant, nor the State, the intervenor, filed verified pleadings which denied the allegations contained in appellants’ verified petition for mandamus, all allegations of fact contained in the petition must be accepted as true. Burgemeister v. Anderson, 113 Tex. 495, 259 S.W. 1078 (1924); Myers v. Zoning and Planning Commission of City of West University Place, 521 S.W.2d 322 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.).

In order to invoke the jurisdiction of a District Court to hear and determine the issues raised in a petition for mandamus, it is incumbent upon the complaining party to state in his petition the necessary facts clearly, fully, and unreservedly, by direct and positive allegations. Alice National Bank v. Edwards, 383 S.W.2d 482 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n.r.e.). Statements which are no more than conclusions or opinions are insufficient. Anderson v. Polk, 117 Tex. 73, 297 S.W. 219 (1927). It has also been held that the failure of a petition to allege a cause of action for mandamus is fundamental error and must be noticed by the appellate court. Milner v. Brewer-Monaghan Mercantile Co., 188 S.W. 49 (Tex.Civ.App.—Texarkana 1916, no writ).

We first consider the question of whether the record shows that the jurisdiction of the District Court was invoked to hear and determine the issue of the asserted disqualification of Judge Kelly to sit as a judge in Cause No. CL-6678. The only allegation in the petition which relates to that issue is that the judge “is interested in the cause of action as he accepted a gift of monetary value, the services of an attorney on his behalf without fee in a cause of action against him in another court involving litigants presently engaged in active litigation in his own court.”

A judge is prohibited by the Constitution and by statute from sitting in a case: “wherein he may be interested”; or where either of the parties is related to him by affinity or consanguinity within such degree as prescribed by law; or when he shall have been counsel in the case. Tex.Const. Art. V, § 11; Tex.Rev.Civ.Stat.Ann. Art. 15 (1969).

It is a rule of long standing that the interest required for disqualification of a judge is one of pecuniary nature at the time of suit. City of Dallas v. Peacock, 89 Tex. 58, 33 S.W. 220 (1895); Taylor v. Williams, 26 Tex. 583 (1863); Nueces County Drainage & Conservation District No. 2 v. Bevly, 519 S.W.2d 938 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.). A pecuniary interest sufficient to disqualify a judge from sitting in a case must be a direct, real and certain interest in the subject matter of that case, which is capable of monetary valuation. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515 (1930); Elliott v. Scott, 119 Tex. 94, 25 S.W.2d 150 (1930); Hubbard v. Hamilton County, 113 Tex. 547, 261 S.W. 990 (1924). Moreover, the pecuniary gain or loss to the judge must be an immediate result of the judgment to be rendered in the pending case, and not result remotely, or at some future date, from the general operation of law upon the status fixed by the judgment. Love v. Wilcox, supra; Moody v. City of University Park, 278 S.W.2d 912 (Tex.Civ.App.—Dallas 1955, writ ref’d n.r.e.); Wagner v. State, 217 S.W.2d 463 (Tex.Civ.App.—San Antonio 1948, writ ref’d n.r.e.).

The allegation that the free legal services rendered by Mr. Hiester to Judge Kelly in the Federal Court action is not an allegation of any direct, real and certain interest in the subject matter of the condemnation suit. There is no allegation that Judge Kelly stands to gain or lose anything of monetary value in the condemnation case because of any such alleged gift. The claim and argument that the acceptance of the free legal services by Judge Kelly amounted to a violation of Canons 3-C and 5-C of the Code of Judicial Conduct which disqualified him from sitting as a judge in the condemnation case is without merit. The contention that the legal services in the Federal Court action constitutes “a gift of monetary value” that disqualifies Judge Kelly because of “interest” in the condemnation case must fail as a matter of law. Count I of the petition for mandamus does not factually allege constitutional or statutory disqualification of Judge Kelly to sit as a judge in the condemnation case; therefore, the jurisdiction of the District Court to hear and determine the issue of disqualification was never invoked by appellants.

We now turn to the issue involving the order to deliver the income tax returns to the State of Texas in the condemnation case. The State, in its aforesaid motion to require appellants to produce certain documents, alleged: “it is necessary to obtain a copy of the Federal Income Tax Returns of Narro Warehouse, Inc. for the years 1972 and 1973, which have been certified by the proper authority of the Internal Revenue Service . . . No facts were alleged in the motion with regard to the relevancy or materiality of the returns to any issue in the condemnation ease.

Appellants, in Count II of their petition, alleged that the order requiring disclosure and exposure of information contained in the income tax returns was made “without any facts either pleaded or presented to show the materiality and relevance of information contained in said income tax return^),” and that there was “an abuse of discretion by Respondent (Judge Kelly) in arbitrarily ordering the income tax return^) furnished to the Plaintiff (State of Texas) without examining the materiality and relevance of these returns as to the cause of action”.

Income tax returns are not wholly privileged, but are subject to discovery to the extent of relevancy and materiality to the issues in the main cause, which must be shown by the moving party and determined by the trial judge. Maresca v. Marks, 362 S.W.2d 299 (Tex.Sup.1962); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Lloyds v. Hale, 405 S.W.2d 639 (Tex.Civ.App.—Amarillo 1966, writ ref’d n.r.e.).

Before a party to a suit may be ordered to turn over a copy of his income tax return to his adversary, the movant should first file a motion in the trial court which clearly alleges facts that show why the information contained in the return is relevant and material to the issues in the main cause. A mere conclusion is not sufficient. Once such a motion has been filed and presented, it is incumbent upon the trial judge to personally examine the income tax return and determine what information contained therein is relevant and material to the main cause, to separate for protection of privacy the portions thereof which are plainly irrelevant and immaterial to the matters in controversy, and then to order the delivery of those portions, if any, of the returns that are so relevant and material. Neville v. Brewster, 163 Tex.155, 352 S.W.2d 449 (1961); Crane v. Tunks, supra; Maresca v. Marks, supra

A District Court has jurisdiction to issue a writ of mandamus to compel action by a Judge of a County Court at Law to correct a clear abuse of discretion. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956). Failure of a trial judge to make an examination of an income tax return and a determination of the relevancy and materiality of the information contained therein prior to issuing an order that directs the delivery of the return to the moving party is arbitrary action and a clear abuse of discretion; a litigant so subjected to such an invasion of his privacy has a right to the remedy of mandamus. Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523 (1961); Maresca v. Marks, supra; Womack v. Berry, supra.

While a District Court cannot control or supervise the exercise of discretion of a Judge of a County Court at Law concerning that court’s ruling on the relevancy and materiality of information contained in an income tax return, it can and should, however, afford relief by mandamus when no discretion has been exercised by that court. Maresca v. Marks, supra. The procedures established in Crane, as clarified in Maresca, apply here.

In the instant case, the allegations contained in Count I appellants’ petition for mandamus to compel the Judge of the County Court at Law to disqualify himself from sitting as a judge in Cause No. CL-6678, the condemnation case pending in the County Court at Law, are insufficient to invoke the jurisdiction of the District Court to hear and determine the issue of disqualification. The District Court did not err in dismissing Count I of the petition; the judgment in that respect is affirmed. However, the allegations contained in Count II of the petition are sufficient to invoke the jurisdiction of the District Court to hear and determine the issue of whether the order of the County Court at Law which required Narro Warehouse, Inc. to deliver its income tax returns for the years 1972 and 1973 to the State of Texas constituted arbitrary action and a clear abuse of discretion. The District Court erred in dismissing Count II of the petition; the judgment in that respect is reversed and the cause of action relating to the issue raised in that Count is remanded to the District Court for trial. We express no opinion as to how that issue should be decided by the District Court. Costs of this appeal are adjudged, apportioned, and assessed fifty per cent (50%) to appellants and fifty per cent (50%) to appellees.

Affirmed in part and reversed and remanded in part.


author: YOUNG, Justice.

text:
    Mrs. Dorothy GRADY, Appellant, v. Max H. FAYKUS, M. D., et al., Appellees.
    No. 990.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 6, 1975.
    Rehearing Denied Dec. 9, 1975.
    David H. Burrow, Helm, Jones & Pletcher, Houston, for appellant.

      O. F. Jones, Victoria, for appellees.
   OPINION

YOUNG, Justice.

This summary judgment case arose from a medical malpractice suit. Mrs. Dorothy Grady sued Dr. Max H. Faykus and Dr. Walter Herbst for injuries she allegedly sustained from excessive radiation by x-ray therapy treatments negligently administered by defendants in October and November of 1969. Plaintiffs original petition was filed June 22, 1973, which date was more than two years after the alleged negligent treatment occurred. Defendants moved for summary judgment which was granted by the trial court on the ground that the suit was barred by the two-year statute of limitations. Tex.Rev.Civ.Stat. Ann. art. 5526. From that judgment the plaintiff-appellant appeals.

In 1969 a medical diagnosis revealed that Mrs. Grady had cancer of the breast. Subsequently, in September 1969, Dr. McCol-lum of Victoria, Texas, performed a radical mastectomy to remove the cancer. After the operation, Dr. McCollum informed Mrs. Grady that it was routine treatment for a patient to receive x-ray therapy after such an operation. This therapy was administered to the plaintiff by defendants, Drs. Faykus and Herbst, in Victoria, Texas over a four week period from October 8,1969, to November 4, 1969.

Toward the end of the radiation treatment (October 30, 1969) the defendant doctors noticed that Mrs. Grady had an area of redness on the area of her body which was being exposed to the radiation. A specimen of the fluid in this area was obtained by the defendants and sent to Dr. McCollum for tests. Dr. McCollum reported that the fluid aspirated from this area had grown bacteria which was sensitive to practically all antibiotics. The defendant doctors then referred Mrs. Grady to Dr. McCollum for antibiotic treatment.

Several weeks after the completion of the radiation treatments, additional complications began to appear in the area which had been exposed to the radiation. These complications manifested themselves in the form of marked discoloration of the skin (browning), blistering of the skin, and superficial ulcerations on the shoulder and the superclavicular area.

Dr. McCollum had already begun the antibiotic treatment, along with whirlpool bath treatments, both of which did not produce any satisfactory results. Dr. McCol-lum then attempted a skin graft. After the skin graft did not take, Mrs. Grady was referred to Dr. Bromley Freeman, a plastic surgeon in Houston, in September 1970, for further treatment.

Dr. Freeman first saw the plaintiff on September 23,1970. Upon the initial examination, Dr. Freeman found a deep ulcer covering all of the front and top part of the shoulder. At this time, Dr. Freeman told Mrs. Grady that her condition was caused by radiation, as opposed to some other cause. This is the first time, Mrs. Grady alleges, that she knew or was aware that the radiation therapy was or might be the cause of her condition.

Plaintiff’s suit was thereafter filed June 22, 1972, against Drs. Faykus and Herbst, for injuries allegedly sustained as a result of excessive radiation received through x-ray therapy treatments negligently performed and administered by defendants. The defendants answered and pleaded that plaintiff’s case was barred by the two-year statute of limitations (Article 5526, supra) because the act complained of (negligent x-ray treatment in October and November, 1969) occurred prior to two years before the filing of this suit (June 22, 1972).

By her amended petition, plaintiff then pleaded that she was not aware of the cause of her condition until she saw Dr. Bromley Freeman in September 1970, and that furthermore, “Defendants intended to keep plaintiff in ignorance of her cause of action and fraudulently concealed from her the fact that her injuries were caused by excessive radiation received through x-ray therapy treatments negligently performed and administered by defendants.”

The defendant doctors then filed their motion for summary judgment on the ground that plaintiff’s action was barred by the two-year limitation statute as a matter of law. Article 5526, supra. The summary judgment evidence in the present case consists of the deposition, affidavit and answers to interrogatories of plaintiff and the depositions of Drs. Richard H. Eppright, Walter E. Herbst, Max H. Faykus and Bromley S. Freeman. The trial court, after reviewing that evidence, granted summary judgment in defendants’ favor decreeing that plaintiff take nothing by her suit. This appeal is by plaintiff from that decree.

Plaintiff brings forward one point of error asserting three grounds why the trial court erred in applying the statute of limitations in appellant’s cause of action for the negligent performance of radiation therapy subsequent to a radical mastectomy. The grounds are these:

“A. Appellees’ fraudulent concealment of the true facts of appellant’s injuries tolled the running of the statute of limitations.
B. Appellant’s discovery of excessive radioactive foreign objects negligently induced by appellees entitled her to the application of the foreign object discovery rule exception to the two-year statute of limitations.
C. Appellant’s radiation injuries are of the type of legal injury where impossibility of discovery has created the discovery rule exception to the two-year statute of limitations.”

We will first consider appellant’s third ground because it is dispositive of this appeal. In this assertion, Mrs. Grady contends that her radiation injuries are of the type of legal injury where impossibility of discovery has created the discovery rule exception to the two-year statute of limitations.

The Texas Supreme Court in Hays v. Hall, 488 S.W.2d 412 (Tex.Sup.1973), which involved an alleged unsuccessful vasectomy operation, seemed to broaden the discovery rule. There the defendant doctor had performed a vasectomy operation on Mr. Hays and, after subsequent tests, assured him that the operation was a success and that he was in fact sterile. Subsequently, on two successive occasions, Mrs. Hays became pregnant while the defendant doctor was continuing to assure Mr. Hays that the operation had been a success and that he was sterile. The question before the court was whether limitation period began to run against plaintiff’s action against the doctor at the "time of the unsuccessful operation or at a time when he learned, or should have learned, that such operation was not a success. The court in holding that the statute of limitations commences to run on the date of discovery of the true facts concerning the failure of the operation, or from the date it should, in the exercise of ordinary care and diligence, have been discovered, stated:

“ . . . If the limitation period is measured from the date of the operation, and if the discovery of fertility, and therefore the injury, is not made until after the period of limitation has run, the result is that legal remedy is unavailable to the injured party before he can know that he is injured. A result so absurd and so unjust ought not to be possible.”

The Court in further discussing their holding and limiting language in Gaddis v. Smith stated:

“ . . . This is not an extension of the limitation period but is merely a recognition that in certain situations it is difficult if not altogether impossible to discover the existence of a legal injury. This recognition gave rise to the holding in Gaddis and to the application in other jurisdictions of what has been called the ‘discovery rule’: the Statute of Limitations commences to run from discovery of the injury, or the time discovery should reasonably have been made.” (Emphasis supplied.)

We believe a similar situation exists here because it was difficult if not impossible for plaintiff, who was not an expert in the field of x-ray treatment and who relied fully on the doctors’ statements to her concerning her condition, to discover the existence of a legal injury, i. e., excessive radiation. Applying the rule as set out by the Supreme Court in Hays v. Hall, supra, the statute of limitations would commence to run on the date of the discovery of the true facts concerning the alleged negligent radiation treatment, or from the date it should, in the exercise of ordinary care and diligence, have been discovered. See also Sanchez v. Wade, 514 S.W.2d 812 (Tex.Civ.App.—El Paso 1974, no writ).

It is also important to note that the Supreme Court in Nichols v. Smith, 507 S.W.2d 518 (Tex.Sup.1974), recently has discussed the discovery rule applied in Gaddis v. Smith, supra, and Hays v. Hall, supra. In that case, Mrs. Nichols based her claim on the alleged severance of both branches of the vagus nerve, but she confined her point of error and argument on appeal to the contention that the allegations of fraudulent concealment precluded a summary judgment in respondent’s favor. Despite their ruling against her contention, the Supreme Court expressly stated:

“ . . . Our action in affirming the judgment of the trial court is not to be understood, therefore, as holding that the discovery rule has no application here.”

The defendants assert that, even so, the plaintiff was aware of the cause of her condition as early as May 1970, which in itself was a period of time more than two years before the suit was filed. The defendants base these assertions on the statements contained in plaintiff’s affidavit that “after the radiation therapy was completed, complications began to develop.” At that time, it was more than two years before the suit was filed. This, the defendants contend, shows that plaintiff knew and was aware in May 1970 that her condition was the result of the radiation therapy improperly performed by defendants.

Plaintiff, on the contrary, asserts in her deposition and affidavit that it was not until September 1970, when she was examined by Dr. Freeman, that she was informed and discovered that her condition was in fact caused by the radiation therapy. September 1970 was within the required two-year period prior to plaintiff’s filing suit against defendants in June 1972. In that regard, Dr. Freeman in his deposition stated:

“A Mrs. Grady had no idea as to what was occurring? Yes, that is true. She felt that she had either an infection or a cancer in her shoulder.
Q And you imparted what knowledge you did to her—
A I explained to her she had no surgery in that area, that the only thing she had on that was the radiation.”

Consequently, a fact issue exists about when plaintiff discovered the true facts concerning the cause of her unfortunate condition or the date she, in the exercise of ordinary care, should have discovered such cause. Because of that fact issue, the trial court erred in granting a summary judgment in defendants’ favor.

Because we are reversing this case and remanding it for trial on the merits based on our reasons set out in our discussion of appellant’s third ground (discovery rule), we do not deem it necessary to further discuss appellant’s first and second points (fraudulent concealment doctrine and foreign object discovery rule). We have, however, considered the appellant’s first and second grounds, and find that she has failed in her burden to bring forward proof raising an issue of fact regarding these contentions.

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

      . The holding in Gaddis v. Smith, 417 S.W.2d 577 (Tex.Sup.1967) that because the patient had no way of knowing that a foreign object had been left in the incision, the cause of action for such negligence accrues when the patient learns of, or in the exercise of reasonable care and diligence should have learned of the injury, was expressly limited to causes of action in which a physician leaves a foreign object in the body of his patient.


author: McDONALD, Chief Justice.

text:
    Harris R. FENDER, Appellant, v. Robert A. MANN et al., Appellees.
    No. 5489.
    Court of Civil Appeals of Texas, Waco.
    Nov. 6, 1975.
    Potter, Lasater, Guinn, Minton & Knight, F. Wilbert Lasater, Tyler, Sheehy, Lovelace & Mayfield, John F. Sheehy, Sr., Waco, for appellant.
    Sleeper, Williams, Johnston, Helm & Estes, P. M. Johnston, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant Fender from an order overruling his plea of privilege to appellees’ cross-action.

Appellant Fender (a resident of Smith County), as plaintiff sued appellees Mann, et al. (residents of McLennan County) in McLennan County, alleging that Fender, Mann and Houston Southwest Corporation entered an agreement to buy control of the Kilgore Bank, taking the stock in Mann’s name; that the agreement provided Mann was to transfer to the other parties their stock upon request, and further provided for preferential right to purchase by the other parties if one desired to sell his part of the control stock; that Houston Southwest sold its stock to Southwest Bancshares subject to the control agreement; that Mann and Fender thereafter borrowed $1,001,874. from Republic Bank to purchase the stock held by Southwest Bancshares, pledging the control stock as security; that without notice to Fender, Mann paid off Republic Bank, and withdrew the control stock; that Fender tendered Mann $507,-098. (½ of the amount of the Republic note) and demanded ½ the stock purchased from Southwest Bancshares; that Mann refused the tender and denied Fender’s right to any part of the stock purchased from Southwest Bancshares. Fender plead he had preferential right to purchase under the control agreement; that Mann was proposing to sell such stock to “Pearson & Martin”, which would result in irreparable damage to him; sought injunction against Mann selling the stock pending determination of this cause. By amended petition Fender plead that after filing of suit he purchased a portion of the stock from Mann; prayed for injunction as before; judgment declaring he has right to purchase the remainder of the stock under the terms of the control agreement; and judgment specifically enforcing such right.

Appellees Mann, et al., filed answer and cross-action alleging that First Madison Corporation executed a $600,000. note secured by 425 acres of land, payable to Great Southwest Mortgage & Investment Company, which assigned such note to Mann; that Mann assigned such note to Continental National Bank of Ft. Worth as collateral for a $600,000. note he executed; that Fender for a fee of $30,000. executed a commitment to purchase such note between certain dates if called upon; that Fender was called upon, but refused to purchase same; that this put Mann in great financial bind; that Fender knew what position Mann would be in if he refused to purchase such note; that Mann was economically coerced into having to sell the Kilgore Bank stock; that Fender’s action caused Mann great economic loss and personal embarrassment; that Fender’s action was willful, intentional and malicious, and part of a prearranged scheme to take Mann’s property without adequate consideration.

Mann prayed judgment that Fender be required to reconvey to Mann the stock purchased; that Mann be found to have no obligation to sell Fender the balance of the stock; and that Mann recover $100,000. damages against Fender, caused by his refusal to purchase the $600,000. First Madison note.

Fender filed plea of privilege to be sued in the county of his residence to Mann’s cross-action, asserting such was for the breach of an entirely different contract from that involved in the main suit.

Mann controverted that Fender invoked the jurisdiction of the court in McLennan County, thus inviting defendants to set up all defenses, counterclaims and cross-actions germane to the subject matter set forth in plaintiff’s pleadings, and that all controversy between the parties should be settled in one suit.

After hearing the trial court overruled appellant’s plea of privilege.

Appellant appeals on one point: “The trial court erred in overruling appellant’s plea of privilege because the cross-action asserted by defendants was not based upon a matter growing out of or incidental to the subject matter of the same suit.”

Appellee by reply point asserts the trial court “correct in overruling plaintiff-appellant’s plea of privilege in that the counterclaim asserted was based on matters germane and incidental to the subject matter of plaintiff’s suit and plaintiff waived his right to be sued in the county of his domicile by filing suit in McLennan County.

Mann and Fender were both astute business men, and had many dealings with each other. They each had owned, or did own, controlling interests in many banks.

Fender sued Mann to enforce a contract whereby Fender asserted preferential right to purchase controlling stock interest in the Kilgore Bank. After filing of the suit Mann sold Fender a portion of the stock. Mann asserted in his cross-action that the only reason the stock was offered for sale was because of Fender’s wrongful dishonor of an agreement to purchase a $600,000. note; which placed Mann in a position of economic coercion to sell the stock.

De La Vega v. League, 64 Tex. 205 holds: “A plaintiff calling a defendant into court for the purpose of obtaining relief against him invites him to set up all defenses which may defeat the cause of action sued on, or any other appropriate and germane to the subject matter of the suit, which should be settled between the parties before a proper adjudication of the merits of the cause can be obtained. He grants him the privilege of setting up all such counterclaims and cross-actions as he holds against the plaintiff which may legally be pleaded in such a suit.

“This is particularly the case in our state, where a multiplicity of suits is abhorred, and a leading object is to settle all disputes between the parties pertinent to the cause of action in the same suit.”

And Zachry v. Robertson, 147 Tex. 307, 214 S.W.2d 949 holds: “When the plaintiff instituted this suit in Tarrant County he submitted himself to the jurisdiction of the District Court of Tarrant County as to all matters arising out of or incidental to the subject matter of the suit, and thereby waived his right to be sued in the county of his domicile in a cross-action arising out of such cause of action.” And further: “It is generally held that in a suit upon a contract, a cross-action in the nature of a suit for breach of the same contract by the plaintiff, or for the breach of another contract closely related thereto, may be maintained, and that the subject matter is incidental to or arises from the main suit, and is proper subject matter for a cross-action.”

See also, Hurst v. Stewart, Tex.Civ.App. (San Antonio) 526 S.W.2d 668; Connell v. Spires, Tex.Civ.App. (Eastland) NWH, 264 S.W.2d 458; Vanguard Insurance Co. v. Young, Tex.Civ.App. (Houston 1st) NWH, 511 S.W.2d 65.

We think the cross-action incidental to, or related to the suit to enforce preferential right to purchase the stock, in that such cross-action alleged the only reason the stock was for sale was because of an asserted breach of contract by appellant.

Appellant’s point is overruled.

Affirmed.