author: NYE, Chief Justice.

text:
    Louis A. NEWITT, Appellant, v. CAMDEN DRILLING COMPANY, Appellee.
    No. 1159.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 9, 1977.
    Rehearing Denied June 30, 1977.

      John C. Holmgreen, Jr., Gary, Thomas-son, Hall & Marks, Corpus Christi, for appellant.
    Charles Porter, Porter, Taylor, Gonzalez, Thompson & Rogers, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit for moneys due on a drilling contract brought by Camden Drilling Company. The defendant Louis A. Newitt contended that the original written contract was superseded in certain particulars by a subsequent oral contract. The jury answered special issues favoring defendant Newitt on his affirmative defense of novation. The trial court disregarded the findings of the jury however, and entered a judgment non obstante veredicto for Camden. It is from this judgment that Newitt appeals.

Newitt desired to lease a bay drilling barge for the purpose of drilling an oil well in Tres Palacious Bay in Matagorda County, Texas. Newitt, a petroleum geologist, contacted Camden Drilling Company for the purpose of leasing one of its drilling barges, some drill pipe and some associated implements necessary for drilling the well. Subsequently, Newitt executed a written contract with Camden for the drilling barge and equipment. This included “drill collars” and “subs” which are used to join pipe together and to provide weight and tension on the drilling pipe. These drill collars, subs and drill pipe are referred to in the contract as “in-hole equipment”. It is the value of this equipment that is the subject of this controversy.

After the drilling barge was in place and the drilling operations had commenced, the drill pipe became stuck in the hole at a depth of approximately 3,000 feet. Newitt engaged a special crew to conduct a “fishing” operation in an attempt to recover the drill pipe. This particular operation is complex and expensive, requiring special tools and a special crew. The “fishing” operation was successful although it lasted five (5) days and cost Newitt approximately $18,-000.00. Newitt, after consulting with his engineers, believed that they could overcome the loss of circulation that had caused the drill pipe to stick in the first place. They decided to start drilling operations again. However, the pipe got stuck a second time at the same depth. They then realized that they could not maintain circulation and, therefore, they would not be able to complete the well.

Newitt was now faced with a new dilemma. He had two choices: first, he could re-engage the “fishing crew” and recover Camden’s pipe and return it to the drilling company; or, second, he could purchase the pipe from Camden and cement and leave it in the hole. Newitt had the responsibility of either returning the “in-hole equipment” to Camden or pay it 100% of the current new replacement costs of such equipment delivered to the well site. The “fishing crew” was still in the area and Newitt knew that he could rehire them to conduct a second fishing operation and recover the pipe. He estimated that the second fishing operation would cost him from $9,000.00 to $18,000.00. Newitt also estimated that if he permanently cemented the drill pipe in the well, according to the contract, he would be required to pay Camden the new replacement costs which he estimated to be about $22,000.00.

Faced with these alternatives, Newitt called L. D. Crumly, the President of Camden Drilling Company, to see what sort of price arrangements could be worked out on the used pipe. Crumly acknowledged over the telephone that Camden’s pipe was grades three and four and was worth “a whole lot less than 100% new pipe costs”. The testimony as to the content of the ensuing conversation between Newitt and President Crumly are diametrically opposed to each others’ interpretation. However, since the jury answered the special issues favorably to Newitt, and since the trial court granted a judgment non obstante ve-redicto against Newitt, and further, since Camden does not by cross points complain of the evidence by factual insufficiency points, we will view all the evidence and inferences therefrom most favorably toward the jury’s answers.

Newitt’s version of the conversation with Camden’s President, Crumly, was that Crumly told him that he would not require Newitt to recover the pipe but that: “you can pay me for them . . .” Newitt testified that when he pressed Crumly for specific figures, Crumly replied that it would be several days before he could return to his Houston office where he would have to consult with his accountant for depreciation schedules, that he was not sure how many joints of pipes or of what grade were involved. Newitt suggested that the price term be “the fair market value” which, according to Newitt, Crumly agreed and accepted.

Based on these statements by Crumly, Newitt ordered the pipe cemented in the hole and he abandoned the well. The “in-hole equipment” was irretrievably lost. When the parties could not agree upon the value of the pipe, Camden sued Newitt for the full 100% of the replacement costs of its pipe.

Newitt’s answers to Camden’s suit were attacked by Camden by a series of special exceptions. The trial court sustained these special exceptions generally on the grounds that Newitt’s defense failed to show consideration for the modification or novation of the contract. However, after the third amended answer was filed and the special defense was replead (generally in the same language as had been plead in prior answers), the trial court overruled Camden’s special exceptions and the case went to trial on Newitt’s third amended answer.

At the conclusion of testimony, the case was submitted to the jury on four special issues. In response to these special issues, the jury found:

1) that after the in-hole equipment became stuck in the hole, L. D. Crumly agreed to accept the fair market value of the equipment.

2) that in reliance on Crumly’s agreement, Newitt cemented the equipment in the hole.

3) that the fair market value of the equipment cemented in the hole was $13,-000.

4) that the 100% new cost of the equipment cemented in the hole was $25,992.25.

Newitt filed a motion for judgment asserting that the jury’s answers to special issues 1 and 2 established an affirmative defense of novation. Camden filed a motion for judgment non obstante veredicto and motion to disregard the jury’s findings. Camden asserted that the trial court erred in submitting the issues (1 through 3) to the jury and that these findings should be disregarded because they are not supported by the pleadings and the evidence. The trial court then entered its judgment directing a verdict for Camden Drilling Company for 100% of the cost of the new equipment which the jury found to be $25,992.25 (special issue 4).

The appellant in his first point of error complains of the trial court’s granting the motion for judgment non obstante vere-dicto. The point of error actually addresses itself to the question of whether or not the defendant’s pleadings and the evidence were sufficient to support the submission of and the jury’s answers to the relevant special issues. The granting of a motion for judgment non obstante veredicto is justified when an instructed verdict is proper. An instructed verdict is proper only under very limited circumstances. These circumstances are: 1) that a defect (specifically indicated) in the opponent’s pleading makes it insufficient to support a judgment; 2) that the evidence proves conclusively the truth of fact propositions which, under the substantive law, establish the right of the mov-ant, or negative the right of his opponent, to judgment; or 3) that the evidence is insufficient to raise an issue as to one or more fact propositions which must be established for the opponent to be entitled to judgment. McDonald Texas Civil Practice, § 11.28.1 (1970).

Newitt’s defense was in effect a no-vation. The elements which must be plead and proved to establish a novation are: 1) a previous valid obligation; 2) the agreement of all the parties to a new contract; 3) the extinguishment of the old contract; 4) the validity of the new contract; and 5) consideration for the new contract. Hidalgo County v. Pate, 443 S.W.2d 80 (Tex.Civ. App.—Corpus Christi 1969, writ ref’d n. r. e.); Crossland v. Nelson Auction Service, Inc., 424 S.W.2d 318 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.); McKinney v. Flato Brothers, Inc., 397 S.W.2d 525 (Tex.Civ.App.—Corpus Christi 1965, no writ); Crazy Water Co. v. Baptist Foundation of Texas, 268 S.W.2d 776 (Tex.Civ.App. —Dallas 1954, writ ref’d n. r. e.).

In order to determine whether or not the judgment non obstante veredicto was correct, we must now determine if there was evidence which would support each of the elements of novation which were found by the jury. In determining whether or not there is any evidence to support jury findings, we use the following test: 1) Only testimony which tends to support the findings are considered; 2) every intendment from the evidence must be indulged in favor of the jury findings; and 3) evidence that conflicts with the jury findings is disregarded. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Rosales v. Lara, 519 S.W.2d 245 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Hudson v. Gaines, 501 S.W.2d 734 (Tex.Civ.App.—Corpus Christi 1973, no writ); City of Austin v. Salazar, 241 S.W.2d 445 (Tex.Civ.App.—Austin 1951, writ ref’d n. r. e.). Therefore, where the issue or verdict has support in the evidence, the trial judge may not render judgment non obstante veredicto even though the great weight and preponderance of the evidence might be to the contrary. Gulf, Colorado & Santa Fe Railway Company v. Been, 158 Tex. 466, 312 S.W.2d 993 (1958), cert. denied 358 U.S. 874, 79 S.Ct. 111, 3 L.Ed.2d 105; Morsch v. Metzger, 520 S.W.2d 564 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). See Rule 301, T.R.C.P.

The record establishes without dispute a valid previous obligation which was the rotary bid proposal and contract executed by Camden and Newitt. The agreement of Camden and Newitt to a new contract and the extinguishment of the old contract was established by Newitt’s testimony. He stated that he and President Crumly discussed Camden’s rights and Newitt’s obligations under the old contract and thereafter agreed to accept the fair market value of the pipe instead of the replacement costs. The last essential element to a valid new contract was consideration.

At the time of the oral conversation between Newitt and President Crumly, the consideration may have been that Camden decided that it would rather have cash money (at fair market value) for the old drill pipe (grades three and four that had been stuck in the hole two times) than to have its old drill pipe returned. It may have been that Camden decided that the fair market value of its pipe paid in cash and the good will of Newitt would be a better bargain for Camden than to have the old pipe returned. The consideration flowing toward Newitt may have been that Newitt would rather pay the fair market value of the drill pipe in cash than to attempt to retrieve it from the hole and risk paying more for the retrieval of the pipe than it would cost to pay the fair market value. Regardless of whether or not any,of the above considerations were the true considerations (because there is no such direct evidence in the record only circumstantial evidence of such), there were, however, undisputed mutual advantages flowing from Newitt to Camden and from Camden to Newitt. These advantages are sufficient consideration for the new agreement between the parties. Reciprocal promises are sufficient consideration. “Where no other consideration is shown, mutual obligations by the parties to the agreement will furnish a sufficient consideration to constitute a binding contract.” Texas Gas Utilities Company v. Barrett, 460 S.W.2d 409 (Tex.Sup.1970), quoting with approval Clement v. Producers’ Refining Co., 277 S.W. 634 (Tex.Comm’n App.1925, judgmt. adopted). See also Lassiter v. Boxwell Brothers, Inc., 362 S.W.2d 884 (Tex.Civ.App.—Amarillo 1962, no writ); McDonald v. McDonald, 143 S.W.2d 142 (Tex.Civ.App.—Austin 1940, writ dism’d judgmt. corr.).

The jury found in effect that Newitt actually promised to pay the fair market value for the pipe stuck in the hole and at the same time give up the right to retrieve and return the old pipe. Camden agreed to receive the fair market value (in cash) for the old pipe rather than having the actual pipe returned and at the same time giving up the chance of receiving 100% replacement costs in the event the pipe could not be retrieved. We hold that the mutuality of promises were sufficient consideration to support the novation.

The only remaining question is whether or not Newitt’s pleadings were sufficient to support the submission of special issue number 1. Paragraph two of Newitt’s trial pleadings reads as follows:

“2. Further, and in the alternative, defendant would show that defendant and Camden entered into a Rotary Drilling Bid Proposal and Contract, under the terms of which Camden was to provide certain services and materials to defendant at the rate and as described therein. Implicit in this contract was the expectation that defendant would return Camden’s drilling rig and equipment to Camden when the contract expired. While defendant was using Camden’s rig and other equipment to drill the oil well described in the contract, certain of Camden’s drill pipe and other equipment became stuck in the well hole. Defendant successfully removed this drill pipe and other material from the well hole. Nevertheless, upon re-entry into the well hole, this pipe and other material again became stuck. Defendant knew that he was obligated by the contract to return Camden’s pipe and equipment, but also realized that the cost of retrieving this pipe and equipment would exceed the pipe’s and equipment’s value. Defendant discussed this situation with Camden’s President, who agreed to accept a sum of money amounting to the fair market value of this pipe and equipment as a substitute for the pipe and equipment in itself. In the alternative, Camden agreed to sell this pipe and equipment to defendant at its fair market value.”

Although this pleading is somewhat less than a model for the plea of novation, it is sufficiently explicit to apprise Camden of the defense asserted. Pleadings need not be instruments of precision if they give the opposing party fair notice of the proof which will be introduced against him at trial. Although this pleading is not as explicit as could be desired, it is sufficient to apprise Camden of the defense that Newitt was asserting. “The plaintiff is required to allege a ‘cause of action’ and the defendant a ground of defense, sufficient upon its face to result, if established, in a judgment favorable to the pleader. The technical fullness of such allegations is unimportant, however, so long as the pleading as a whole conveys fair notice.” 2 McDonald Texas Civil Practice § 5.07.1 (1970). McCane Sondock Detective Agency v. Penland Distributors, Inc., 523 S.W.2d 62 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); Osteen v. Crumpton, 519 S.W.2d 263 (Tex.Civ.App.—Dallas 1975, writ ref’d); Rule 45, T.R.C.P.

We hold that Newitt’s pleadings and evidence were sufficient to support the defense of novation. The trial court erred in rendering judgment non obstante veredicto. The judgment is REVERSED and judgment is here rendered that Camden Drilling Company shall be entitled to $13,000.00 (the fair market value of the “in-hole equipment” as found by the jury) from Louis A. Newitt, with interest at the rate of 6% from October 12, 1973 to the date of judgment and at the rate of 9% per annum thereafter.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    Laura ZGLINSKI, Tax Assessor-Collector, et al., Appellants, v. Charles W. HACKETT, Jr., et al., Appellees.
    No. 12576.
    Court of Civil Appeals of Texas, Austin.
    June 15, 1977.
    Rehearing Denied July 6, 1977.

      J. C. Hinsley, Michael G. Maloney, Austin, for appellants.
    Douglass D. Hearne, Stayton, Maloney, Hearne & Babb, Austin, for appellees.
   PHILLIPS, Chief Justice.

The appellants here are Laura Zglinski, the tax assessor-collector for the Del Valle Independent School District in Travis County, and the eleven-member Board of Trustees of that district.

Appellants are appealing from an order of the district court, granting a temporary injunction which enjoins them from levying or attempting to collect taxes on lands belonging to the plaintiffs below and appel-lees here.

We reverse and remand this cause with instructions.

This suit was instituted by appellees Charles W. Hackett, Jr., and Frances H. Clark, on October 25, 1976. On this same date the trial court granted a temporary restraining order without notice or hearing. Subsequently, the temporary restraining order was extended from time to time for reasons not pertinent here.

At a hearing held on November 24, 1976, the court granted appellees’ request for a temporary injunction and enjoined appellants from levying or attempting to collect taxes from certain lands belonging to appel-lees based upon the plan, method or system of taxation used and employed by appellants in assessing and setting value on land in the school district for 1976, pending trial on the merits. Appellants then perfected their appeal to this Court.

Appellants’ first point of error, which we sustain, is that of the trial court in overruling appellants’ plea in abatement.

Appellees’ original petition and application for injunction was filed on October 25, 1976. The petition contained allegations that unless appellants were restrained and enjoined from assessing appellees’ lands for the year 1976, from levying and attempting to collect taxes from them on the lands described, from placing such assessments on the tax rolls, and from certifying and closing the tax rolls, appellees would suffer immediate, substantial, and irreparable injury and damage.

Appellants’ answer filed in response to these pleadings contained a plea in abatement alleging that the Board of Equalization had completed its work, certified the tax rolls on October 18,1976, and adjourned on that date. The plea further alleged that prior to the filing of appellees’ petition, tax statements had been mailed by the appellant tax assessor-collector and that collection of taxes had begun. The plea further alleged that the tax system of the school district had been placed into effect before the institution of the suit now before us.

The evidence adduced at the hearing on temporary injunction held on November 24, 1976, disclosed that, without dispute, the Board of Equalization had met on October 18, 1976, heard appeals from taxpayers, including appellee Hackett, completed its work that day, approved the tax rolls that evening, and adjourned that same evening. The undisputed testimony further disclosed that many tax statements had been mailed out prior to the filing of this lawsuit on October 25; and the appellant tax assessor-collector testified that when this suit was filed on October 25, nothing remained to be done to put the tax system into effect.

The trial court filed findings of fact and conclusions of law. The court found as fact that when this suit was filed, appellants had not mailed tax statements to appellees and had not commenced collection of taxes for 1976 as to appellees. The court then concluded as a matter of law that, as to appellees, the appellants’ tax plan for 1976 had not been put into effect at the time this suit was instituted, and that the suit was timely filed.

We disagree. We hold that under the undisputed facts of the case, the tax plan had been put into effect and that, under the rule of law announced in City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954), injunction will not lie. Cannon holds that the remedies of injunction and mandamus are lost to a taxpayer when he fails to avail himself of these remedies before the taxing authority has put the taxing plan into effect. From this point on, his relief becomes limited and he may defeat recovery of taxes only to the extent that they are excessive, and he must assume the burden of proving the amount of excessiveness.

Under the testimony before us, the tax assessor-collector testified that nothing remained to be done with respect to the 1976 tax plan. This is so even though appellees elicited testimony from her on cross-examination that she had not yet mailed back tax statements to appellee Hackett as of October 21. In any event, she testified that the Board of Equalization had approved these back taxes and any corrections that were to be made, on October 18 before it adjourned. Even so, back taxes allegedly owed by Hackett are not a part of this lawsuit as they were neither pleaded nor proved.

Nor are we impressed with the fact that appellees had not yet received their tax notices for 1976 on the date suit was filed. They already owed the taxes on that date, and the mailing of tax statements had been held to be no more than a courtesy. See Attorney General’s Opinion No. WW 149, June 6, 1957.

Appellee Hackett also argues that at the hearing held before the Board of Equalization, the Board stated that they would advise him of their decision and that he did not receive notice of this decision until it arrived by mail the Friday before the Monday on which he filed suit. There are no allegations of fraud or deceit leveled against the Board here. In fact, the Board notified Hackett of their decision, which, in our judgment was nothing more than a courtesy and in no way bears upon the question of whether or not the taxing plan had been put into effect with respect to appellee Hackett’s tax liability for 1976.

As early as George v. Dean, 47 Tex. 73 (1877), the Court held that there are two essential requisites to a valid tax, namely, a legal levy by the officer to whom the duty is committed by law, and a valid assessment of the property by the proper officer. This holding has been followed in Dallas Joint Stock Land Bank of Dallas v. State, 118 S.W.2d 941 (Tex.Civ.App.1938, no writ), where the court held a valid assessment had been made even where the tax assessor had failed to calculate and extend on the tax roll the amount of road tax levied against a parcel of land. Also see Yorktown Independent School District v. Afflerbach, 12 S.W.2d 130 (Tex.Com.App.1929, holding approved).

Appellees’ reliance on Sierra Blanca I.S.D. v. Sierra Blanca Corp., 514 S.W.2d 782 (Tex.Civ.App.1974, writ ref. n. r. e.); Owens-Illinois, Inc. v. Little Cypress-Mauriceville I.S.D., 481 S.W.2d 477 (Tex.Civ.App.1972, no writ); and Atlantic Richfield Co. v. Warren I.S.D., 453 S.W.2d 190 (Tex.Civ.App.1970, writ ref. n. r. e.), is misplaced. All of these cases hold that the taxpayer had filed suit before the tax plan had been put into effect.

In Sierra Blanca the assessor-collector was still considering affidavits filed by ranch owners requesting a reduction in valuation so the court concluded that the tax rolls were not yet closed before the suit was filed. In Little Cypress the court held suit was filed before the tax rolls had been finally approved by the Board of Equalization and before the Board of Trustees had levied the taxes upon plaintiff’s property. And although in Atlantic Richfield the factual sequence for the court’s holding that the taxpayer’s suit had been filed before the tax plan had been put into effect is somewhat unclear, nevertheless the court did so hold.

Appellants also have a point that the trial court erred in overruling their special exception leveled at the failure of appellees (plaintiffs below) to tender any payment of taxes or to allege that they were willing to pay such taxes as may be due. The record indicates that no tender was made by appel-lees until January 25,1977. The record also indicates that the judgment was signed and entered on December 6, 1976.

In Blanc v. Meyer, 59 Tex. 89 (1883), the court held that a complaining taxpayer seeking to enjoin the collection of an allegedly illegal tax must tender payment of the taxes. The cases hold that in order to receive equity, the taxpayer must do equity and at least tender in dollars and cents the amount of taxes owed under such taxpayer’s theory of valuation. State v. Hoffman, 109 Tex. 133, 201 S.W. 653 (1918); Harding Bros. Oil & Gas Co. v. Jim Ned I.S.D., 457 S.W.2d 102 (Tex.Civ.App.1970, no writ). There was no timely tender of taxes here. The trial court erred in overruling appellants’ special exception. Consequently, we must sustain appellants’ point of error.

In view of our disposition of these two points, we reverse the judgment of the trial court and remand the cause for trial on the merits with instructions to dissolve the injunction.


author: HALL, Justice.

text:
    F. E. SAWYER et al., and Donley County Hospital District, Appellants, v. George W. SMITH, Appellee.
    No. 5667.
    Court of Civil Appeals of Texas, Waco.
    June 16, 1977.
    Rehearing Denied July 7, 1977.

      Michael R. Sanders, Lovell, Lyle & Renter, Clarendon, Hal Miner, Amarillo, for appellants.
    John Mozola, Underwood, Wilson, Sutton, Berry, Stein & Johnson, Amarillo, for appel-lee.
   HALL, Justice.

This is an appeal from a summary judgment in case number 3530 (# 3530) in the 100th Judicial District Court holding that the judgment in case number 3521 (# 3521) in that Court is res judicata of the dispute between the parties in # 3530. We affirm.

The parties to this appeal are appellant Donley County Hospital District (District) which initiated # 3521 and was a defendant in # 3530; appellants F. E. Sawyer and others (Plaintiffs) who are citizens and resident freeholders and taxpayers in District and who were Plaintiffs in # 3530; and appellee George W. Smith (Smith) who is a medical doctor and who was a defendant and cross-plaintiff in both cases.

Article 4494, Vernon’s Tex.Civ.St., provides for the joint establishment and operation of a hospital by a county and a city. Our record shows that on November 20, 1956, Adair Hospital, which was a charitable corporation in the City of Clarendon, became a city-county hospital operated by the City of Clarendon and Donley County within the provisions of that statute. On that day the Board of Managers of the hospital executed a contract with appellee Smith under which Smith was made manager of the hospital at a salary of $12,000.00 per year, and was granted free use of the hospital and its equipment for his private practice. The contract was effective for 10 years beginning October 1, 1956, and was renewable in 10-year terms until October 1, 1986, unless terminated by Smith under circumstances available to him. Smith has never exercised his option to terminate.

By reason of Acts 1969, 61st Leg., p. 2035, ch. 699, effective June 12, 1969, (see note, Article 4494q., Vernon’s Tex.Civ.St.) District was created and became the city-county hospital’s successor. Thereafter, a dispute arose between District and Smith as to their rights and responsibilities under the contract between Smith and the city-county hospital in the light of the provisions of this Act and District filed # 3521 against Smith and the Adair Hospital Corporation to void the contract and oust Smith as manager of the hospital, and for judgment vesting title to all the hospital property in District. Smith filed a cross action for a declaration that the contract was valid and binding on District for several reasons under the Act including ratification of the contract by District, and for certain money damages. Additionally, Smith filed a third-party suit against John Jones and others, charging them with malicious interference with his contract with District. Later, Plaintiffs filed # 3530 (on behalf of themselves and all other property taxpayer-voters of District) against District and Smith, alleging that the contract relied upon by Smith and the ratification pleaded by him in # 3521 were both invalid because they violated the Act creating District in several particulars, were without consideration, and were beyond the powers of the Board of Managers of District. They prayed for an injunction preventing District from recognizing the contract and preventing Smith from using the building or other property of District and from accepting funds from District. Smith answered with a general denial, a special plea that the contract and District’s ratification were valid, and filed a cross action against Plaintiffs and a third-party claim against John Jones and others seeking actual and punitive damages against all of them on allegations that they were maliciously interfering with his contract with District. Thereafter, Plaintiffs filed motions to intervene in # 3521, and to consolidate both cases. These motions were never acted upon by the Court.

Such was the state of the pleadings when on March 5, 1973, District and Smith executed a compromise-settlement agreement, and when on March 7, 1973, judgment was rendered in # 3521 on the settlement agreement.

The settlement agreement recites that District and Smith had compromised and settled all controversies between them in both # 3521 and # 3530 “and all controversies between them, whether or not involved in either of [those] cases” in the following manner: District agreed to pay Smith $48,351.51, payable in four equal annual installments beginning'on March 1, 1974, and agreed to fix a tax rate and levy and collect the tax each year to pay the installments; Smith would not recover any other sum “on account of anything involved in the cases,” and District would not recover any sum from Smith; judgment would be entered in # 3521 that District take nothing against Adair Hospital or Smith as to the hospital premises claimed by District; Smith agreed to release District, and District agreed to release Smith “under or on account of that contract dated November 20, 1956, by and between the Board of Managers of Adair Hospital and George W. Smith”; and Smith agreed that if # 3530 should be dismissed with prejudice, then he would dismiss his cross actions and his third-party claims in both cases against Plaintiffs and John Jones and his group. Additionally, the last three paragraphs of the settlement agreement provided as follows;

“14. The parties hereto recognize that George W. Smith claims and asserts that he is entitled to recover from Donley County Hospital District sums many times over and greatly in excess of the aforesaid sum, and Donley County Hospital District claims that it is not indebted to George W. Smith, also that there is a bona fide dispute and controversy between the parties as to the contract here-inabove referred to; and this agreement and the settlement herein provided for is the settlement of a bona fide dispute and controversy between Donley County Hospital District and George W. Smith.
“15. The agreement herein contained of and by Donley County Hospital District and George W. Smith shall be implemented, supported and augmented by a judgment or judgments entered in the aforesaid causes. .
“16. Donley County Hospital District shall pay all costs in Cause No. 3521.”

The judgment rendered in # 3521 recites that District, Smith, and Jones and his group were before the Court. It tracks the settlement agreement and contains these orders:

1. The settlement agreement was approved by the Court.
2. Smith shall recover $48,351.51 from District payable in four equal annual installments beginning March 1,1974.
3. District shall each year fix, levy, and collect a tax sufficient over and above its other expenses to pay Smith’s money judgment.
4. District and Smith are both released from any claims by the other on account of the contract between Smith and Adair Hospital dated November 20, 1956.
5. Except as set forth in the judgment, neither District nor Smith shall recover any sum from the other on account of anything involved in this lawsuit.
6. District shall take nothing against Adair Hospital or Smith as to the Hospital property.
7. District shall pay all court costs.
8. Writs shall issue in favor of Smith to enforce his money judgment if District defaults in payment.
9. Smith’s third-party complaint against John Jones and others was dismissed with prejudice.

On the same day that judgment was rendered in # 3521 (March 7, 1973) judgment was also rendered in # 3530 which purported to dispose of that case by agreement of the parties.

On April 6, 1973, the court ordered the judgments in both cases set aside. On April 13, 1973, Smith filed motions to reinstate both judgments. This motion was contested by Plaintiffs in # 3530. On June 25,1973, both judgments were reinstated by the Court. On direct appeal by Plaintiffs the order reinstating # 3530 was set aside by the appellate court on the holding that “the basis for an agreed judgment no longer existed since Plaintiffs did not agree to the judgment of dismissal, their disagreement being evident by their opposition to the motion to reinstate.” See, Sawyer v. Donley County Hospital District, 513 S.W.2d 106, 109 (Tex.Civ.App.—Amarillo 1974, no writ). However, the order of reinstatement in # 3521 was not appealed, and the reinstated judgment in that case became final.

Thereafter by divers pleadings in # 3530 against District, Plaintiffs, and John Jones and others, Smith sought as alternative remedies either (1) a declaration that the judgment in # 3521 was res judicata of the relief Plaintiffs and District sought in # 3530, or (2) a judgment against Plaintiffs and Jones and the others for actual and punitive damages for malicious interference with his contract. Later, Smith moved for summary judgment in # 3530 asserting that under the doctrines of res judicata and collateral estoppel all issues of fact and law in the case had been finally resolved by the judgment in # 3521, and praying for a declaration “that all parties to this cause are bound by the final judgment in cause # 3521” and that he be granted a nonsuit on his action for money judgment against Plaintiffs and Jones and the others. These pleadings and the motion were duly controverted by the other parties. On January 27, 1976, the motion was granted and judgment was rendered as follows:

1. The judgment in # 3521 “is a valid judgment not subject to collateral attack by the parties thereto or by any citizens, residents, or taxpayers of the Donley County Hospital District,” and “all parties to this Cause 3530 are bound by the final judgment in Cause 3521”;
2. Plaintiffs take nothing;
3. District takes nothing;
4. Smith is granted a nonsuit on his actions against Plaintiffs and Jones and the others; and
5. Costs are taxed against Plaintiffs.

District and Plaintiffs perfected this appeal from the summary judgment.

The record shows that between the time the judgment in # 3521 was set aside and the time it was reinstated, District’s Board of Directors voted to contest the reinstatement. District states in its brief that this dissatisfaction with the judgment by District was conveyed to the Court before the reinstatement, although this knowledge by the Court is not established by the record. Nevertheless, Smith does not dispute the statement, and treats the fact as established. Based upon this fact, District asserts that the agreed judgment in # 3521 is void because District was not consenting to it at the time it was reinstated. We overrule this contention.

A valid consent judgment cannot be rendered by a court when consent of a party to it is wanting. And the fact that consent might have existed at some time prior to judgment is not sufficient. It “must exist at the very moment the court undertakes to make the agreement the judgment of the court,” else the judgment is invalid and subject to being set aside. Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291 (1951). However, if a party to the cause wishes to contend that he did not in fact agree to the judgment, he must do so by a direct attack upon the judgment and cannot do so in a collateral proceeding. Cannon v. Hemphill, 7 Tex. 184, 197 (1851); Brennan v. Greene, 154 S.W.2d 523, 526 (Tex.Civ.App.—San Antonio 1941, writ ref’d).

Plaintiffs say the judgment in # 3521 cannot be res judicata as to them because they were never parties in that case. We disagree. It is undisputed in the record that Plaintiffs are citizens and resident taxpayers of District, and that they brought suit # 3530 in their representative capacity as such. Absent fraud or collusion, it is the rule that a judgment for or against a unit of government “is binding and conclusive upon all residents, citizens, and taxpayers in respect to the matters adjudicated which are of general and public interest,” because they are virtually represented in the litigation. Cochran County v. Boyd, 26 S.W.2d 364, 365-366 (Tex.Civ.App.-Amarillo 1930, writ ref.); Allied Van Lines v. Central Forwarding, 535 S.W.2d 412, 413 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.). This rule controls here.

Plaintiffs assert the consent judgment was merely a ministerial act of the Court and cannot serve as the basis for a valid plea of res judicata. This is not so. A consent judgment has substantially the same effect as any other judgment rendered in ordinary course. It is equally conclusive as to the matters adjudicated, is not subject to collateral attack except upon jurisdictional grounds, and is entitled to full effect as res judicata. Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234, 239 (1961); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956); State v. Swift & Co., 187 S.W.2d 127, 136 (Tex.Civ.App.—Austin 1945, writ ref’d); 34 Tex.Jur.2d 529, Judgments, § 476.

In separate points, Plaintiffs and District assert that the judgment in # 3521 is void and therefore subject to collateral attack because it (and the settlement agreement upon which it is based) violates a “pay-as-you-go” provision in the Act creating District, and also violates the method of payment of debts prescribed by the Act. These questions were necessarily decided in Smith’s favor and adversely to Plaintiff’s and District’s present argument when the judgment in # 3521 was rendered. The order reinstating the judgment shows that these issues were again considered by the Court and again determined in favor of Smith at the time of reinstatement. The Court had jurisdiction under the pleadings of the parties in # 3521 to decide these questions. His. decisions thereon became final. Whether they were correctly or erroneously decided by the Court in its orders is not important to the application of res judi-cata. State v. Swift & Co., 187 S.W.2d 127, 137 (Tex.Civ.App.—Austin 1945, writ ref’d). See also, Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810, 812 (1947); Security Trust Co. of Austin v. Lipscomb County, 142 Tex. 572, 180 S.W.2d 151, 157 (1944).

All remaining points and contentions are without merit. They are overruled.

The judgment is affirmed.


author: BISSETT, Justice.

text:
    David E. KING, Appellant, v. Vidal Garcia MALDONADO et al., Appellees.
    No. 1147.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 23, 1977.
    Rehearing Denied June 30, 1977.

      Derryl L. Collins, William R. Edwards, Corpus Christi, for appellant.
    Cecil D. Redford, Dyer, Redford, Burnett, Wray & Woolsey, Ronald B. Brin, Maddin, White & Brin, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

The only question presented by this appeal is whether the trial court abused its discretion in allowing two groups of defendants four peremptory challenges each, and allowing plaintiff six such challenges.

The suit arose out of a three-vehicle collision in which David E. King, plaintiff, allegedly was injured, and the automobile owned and operated by Mrs. Clevia F. Bra-selton, a defendant, was allegedly damaged. According to the allegations contained in plaintiff’s petition, he was injured when his vehicle was struck by a truck which was owned by Mariano Rodriguez, under lease to Louisiana Elevator & Storage Company, Inc., and being operated by Vidal Maldonado, which truck was caused to swerve by certain alleged acts of negligence of Mrs. Clevia F. Braselton, the driver of an automobile which was traveling in front of the truck. Plaintiff filed suit on July 25, 1974 against Vidal Maldonado. Later, by amended pleadings, Louisiana Elevator & Storage Company, Inc., Mariano Rodriguez and Mrs. Clevia F. Braselton were made defendants to the suit. Vidal Maldonado filed a cross action against Mrs. Braselton for “indemnity and/or contribution” in the event he “was held liable to plaintiff.” Mrs. Braselton filed a third party action against Vidal Maldonado, Mariano Rodriguez and Louisiana Elevator & Storage Company, Inc., to recover damages allegedly sustained to her automobile as a result of the collision.

Trial was to a jury, which found in a less than unanimous verdict that plaintiff was not injured in the collision. A take nothing judgment was rendered against plaintiff on April 28, 1976. Plaintiff has appealed.

Defendant Mrs. Clevia P. Braselton and the remaining defendants were antagonistic to each other at all times material to this appeal. Mrs. Braselton will henceforth be referred to as “Braselton,” and the other three defendants, who were not antagonistic to each other, will hereafter be called “Louisiana Elevator.”

The trial court timely aligned the parties. The propriety and correctness of the alignment is not questioned in this appeal. Plaintiff concedes that Braselton and Louisiana Elevator were antagonistic to each other.

Prior to the selection of the jury, plaintiff filed his “Motion for Equalization of Peremptory Challenges,” wherein he asked for twelve peremptory challenges since Brasel-ton and Louisiana Elevator had each asked for six challenges. The motion was overruled. The trial court allowed plaintiff six peremptory challenges, Braselton four peremptory challenges, and Louisiana Elevator four peremptory challenges. In addition, the defendants were expressly allowed to collaborate in exercising their total of eight peremptory challenges. Plaintiff objected on the grounds that the allowance of a total of eight peremptory challenges to the defendants, and the allowance of only six such challenges to him, plus the permission granted the defendants to collaborate, “thwarts the end of justice in that it unfairly allows the defendants an additional two strikes more than the plaintiff.” It was further stated by plaintiff to the Court in what both plaintiff and the trial judge considered to be a Bill of Exception:

“Plaintiff has been harmed thereby in that Plaintiff has thereby needed to use its six peremptory challenges on six jurors the Plaintiff did not want on the panel, and there are at least two other jurors that Plaintiff did not want on the panel, but the failure to equalize strikes has forced Plaintiff in accepting these jurors and not allowing these jurors to be struck. Those jurors are a juror on the second panel, number 12, A1 Laechelin, and juror number 9 on the first panel list, Mr. J. L. West.”

Plaintiff also objected to the trial court’s refusal to sustain his challenge for cause to venireman F. H. Dennis, and in his making his asserted Bill, further stated that as a result of such action by the court he was required to use one of his six challenges on Dennis, and was thereby forced to take venireman Frank Brandon “who plaintiff wished to strike.” Plaintiff concluded with the statement:

“[Ajccordingly the plaintiff has been thereby prejudiced due to its being forced to use one of its peremptory challenges on venireman F. H. Dennis and unable to use such strike on venireman Frank Brandon. And, accordingly, plaintiff has been prejudiced in the overruling of its motion for equalization of peremptory challenges in that it had to accept two additional veniremen, J. L. West and A1 Laechlin, as a result of the failure to equalize the number of strikes, and defendants’ total in their collaboration.”

The record shows that venireman Dennis was examined in great detail by plaintiff in his attempt to disqualify him for cause. The voir dire examination of the panel was not reported. No evidence, except part of the voir dire examination as to Dennis, was incorporated in the asserted Bill.

All parties exercised all of their peremptory strikes. There were no duplicate strikes between plaintiff and defendants, and the veniremen, Frank Brandon, A1 Laechelin and J. L. West, sat on the jury. The verdict returned was a 10-2 verdict. A1 Laechelin voted in plaintiff’s favor. J. L. West and Frank Brandon were among the ten jurors who returned the verdict against plaintiff.

Plaintiff’s single point of error reads:

“The trial court erred in failing to equalize the number of peremptory challenges to the veniremen on the jury panel as required by Article 2151a, in that it granted four such challenges to each of two sets of Defendants (total of eight strikes) as against six challenges to Plaintiff, and allowed the Defendant groups to collaborate in exercising their combined eight challenges.”

Rule 233, T.R.C.P., provides that each party to a civil suit tried in a district court shall be entitled to six peremptory challenges. The term “each party,” as used in the Rule, does not mean the same thing as the word “person,” but means each litigant or group of litigants whose interest is antagonistic to another litigant or group of litigants. Retail Credit Co. v. Hyman, 316 S.W.2d 769 (Tex.Civ.App.—Houston 1958, writ ref’d).

To be considered in connection with Rule 233 in multiple party cases is Tex.Rev.Civ. Stat.Ann. art. 2151a (Supp.1976), which became effective on July 15, 1971. It reads:

“After proper alignment of parties, it shall be the duty of the court to equalize the number of peremptory challenges provided under Rule 233, Texas Rules of Civil Procedure, Annotated, in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.”

In an appeal where the question presented is whether there has been an abuse of discretion by the trial court in the trial of a case, the burden is on the complaining party to show that the trial which resulted in a judgment adverse to him was materially unfair. Texas Employers’ Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958). Therefore, in this case, the burden was on plaintiff to show that the allowance of a total of eight peremptory challenges to the defendants and the allowance of only six such challenges to him, coupled with the fact that the defendants were allowed to confer prior to their exercise of the eight challenges, resulted in a trial that was materially unfair to him.

The Supreme Court of Texas, in Tamburello v. Welch, 392 S.W.2d 114, 117, 118 (Tex.Sup.1965), stated:

“The harmless error rule undoubtedly applies where a party is denied the number of peremptory challenges to which he is entitled . . . ”
******
“. . . if a party is improperly denied a single challenge to which he is entitled, the trial may not be so unfair as to warrant a reversal in the absence of some additional showing of prejudice. . .”

The enactment of Article 2151a did not change the rule of Tamburello v. Welch, supra.

Article 2151a has been construed in a number of cases since its enactment in 1971. We refer to those cases which have a bearing on this appeal.

In Perkins v. Freeman, 518 S.W.2d 532 (Tex.Sup.1974), a child custody case, the mother sought custody of the child from the father. The paternal grandparents intervened alleging that neither the father (defendant) nor the mother (plaintiff) were fit and asked that custody be awarded to them. Later, by amendment, intervenors alleged that the defendant was not unfit but that plaintiff was unfit and prayed that defendant retain custody, or, in the alternative, that they be awarded custody. The trial court allowed defendant and intervenors six peremptory challenges each. The Supreme Court held their positions were not antagonistic and reversed the case because of the action of the trial court in allowing six peremptory challenges to each of them.

After setting out Article 2151a, the Supreme Court, in holding that “the award to the defendant and intervenors of double the amount of peremptory challenges to which they were not entitled is calculated to cause the trial to be materially unfair,” said:

“The statute specifically requires the trial court to align the parties. After a proper alignment of parties it is ‘the duty of the court to equalize the number of peremptory challenges’ as provided for under Rule 233. This equalizing of the number of peremptory challenges is to be done ‘in accordance with the end of justice so that no party is given an unequal advantage.’ ”

Austin Road Company v. Evans, 499 S.W.2d 194 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.) was a multiple party case. Mrs. McEneny, Mrs. Carson and Mrs. Evans were driving in that order through a construction area of Austin Road Company and were blinded by lime that was being placed in the construction area. Mrs. McEneny stopped; Mrs. Carson stopped; but Mrs. Evans did not. Mrs. Carson’s automobile came in contact with the rear of Mrs. McEneny’s car, and Mrs. Evans’ car struck the rear of Mrs. Carson’s car. Each sued the other two, and each also sued Austin Road Company. The trial court allowed each of the ladies six peremptory challenges, and allowed nine such challenges to Austin Road Company. Mrs. Evans and Austin Road Company were found negligent. Under the jury’s verdict, Mrs. McEneny and Mrs. Carson recovered judgment against Mrs. Evans and Austin Road Company, and Mrs. Evans recovered indemnity against Austin Road Company, but did not recover for her personal injuries. Austin Road Company appealed, and Mrs. Evans filed a cross point complaining of the action of the trial court in giving Austin Road Company nine challenges and allowing her only six. After discussing the law prior to the enactment of Article 2151a, the Court of Civil Appeals held:

“Our holding is that, perforce the provisions of the 1971 Statute as applicable to the instant question there has been an effective change in the law so that, except there be an abuse of discretion in the allotment of peremptory challenges by the trial court in his discharge of the duty to equalize the number of peremptory challenges permitted the parties litigant there should be no reversal even though one party be allowed to make more than six peremptory challenges. Here there was no abuse of discretion warranting reversal.”

In a more recent case, Dean v. Texas Bitulithic Company, 538 S.W.2d 825 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.), there were two defendants which were adverse to each other with respect to the plaintiff’s claim of negligence. The Court of Civil Appeals held:

“The trial court in its discretion gave plaintiff six peremptory challenges and the two defendants 9 peremptory challenges. The trial court precisely followed Rule 233 and Article 2151a, and no abuse of discretion has been shown.”

It is a rule of long standing in Texas that parties to a multiparty lawsuit may confer in making peremptory challenges. First Nat. Bank of Cuero v. San Antonio & A. Pass R. Co., 97 Tex. 201, 77 S.W. 410, 412 (1903); Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.); Brown & Root, Inc. v. Gragg, 444 S.W.2d 656, 660 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n. r. e.); City of San Antonio v. Reed, 192 S.W. 549, 553 (Tex.Civ.App.—San Antonio 1917, writ ref’d). That rule was not changed by the passage of Article 2151a. However, where there are multiple parties and they are permitted to collaborate prior to the exercise of peremptory challenges, the fact that they will confer with each other should be taken into consideration by the trial judge in equalizing the number of peremptory challenges “in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.”

We hold that in multiple party cases, Article 2151a does not require, as a matter of law, that each side, after alignment, is entitled to the same number of peremptory challenges as that allowed the opposite side. If the Legislature, in enacting the statute, had intended in all such cases for each side to have the same number of peremptory challenges following proper alignment of the parties, the statute would have so stated. Since it did not do so, the matter is left to the sound discretion of the trial court.

Of the veniremen on the jury panel, nine, who were not disqualified for any reason, were undesirable to plaintiff. Six of them, including Dennis, were removed by plaintiff by peremptory strikes. The remaining three, Brandon, Laechelin and West, served on the jury. However, plaintiff does not, by a point of error, complain of the refusal of the trial court to sustain his challenge for cause to Dennis, nor does he complain by a point of error that such action caused him to take Brandon, whom he would have struck by a peremptory strike had Dennis been removed from the panel for cause. There is nothing in the record which shows that any of the twelve jurors who made up the jury were disqualified, or that any of them were prejudiced against plaintiff, or that any of the ten were unfair in reaching the verdict that was returned. The mere fact that the verdict was unfavorable to plaintiff, without a showing of something more than is shown by the record in this case does not constitute harm which requires a reversal of the judgment that was rendered.

Considerable evidence was offered by all parties at the trial of the case. Plaintiff does not attack the findings of the jury, nor does he challenge any of the rulings made by the trial judge after the jury was em-panelled and trial commenced.

The advantages accruing to Brasel-ton and Louisiana Elevator because they were permitted to collaborate in the exercise of their eight peremptory challenges were offset to some degree by the granting of only four peremptory challenges to each of them instead of six each, as provided by Rule 233. The action by the trial court in allowing an unequal number of peremptory challenges was obviously motivated in accordance with its concept of justice so that neither side would have an unequal advantage over the other because of the number of peremptory challenges allowed the respective parties. Such action was authorized by Article 2151a, and was clearly within the discretion of the trial court.

Under the record here presented, we do not believe that the action of the trial court resulted in a trial that was materially unfair to the plaintiff. No abuse of discretion is shown. Plaintiff’s point is overruled.

The judgment of the trial court is AFFIRMED.


author: EVANS, Justice.

text:
    Horace L. SMITH et al., Appellants, v. CITY OF HOUSTON et al., Appellees.
    No. 16895.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 23, 1977.

      Peter D. Williamson, Thomas G. Bous-quet, Houston, for appellants.
    Otis H. King, City Atty., Alan F. Levin, Sr. Asst. City Atty., Dennis C. Gardner, Asst. City Atty., Houston, for appellees.
   EVANS, Justice.

This action by appellants, former employees of the City of Houston, questions the authority of the City to terminate their employment without holding a hearing before the civil service commission. The trial court dismissed the appellants’ suit for want of jurisdiction.

Under the Civil Service Code of the City of Houston each employee appointed to a position in the classified service is required to complete a twelve month probationary period termed a “working test period”, before being considered a classified employee. (Sec. 12-122, Division 9, Rule 9.)

Another section of Rule 9, entitled, “Removal during probation” provides:

“In case the department head deems a probationary employee unable or unwilling to render satisfactory service, or for other sufficient cause, the head of the department, with the approval of the civil service commission, may remove such employee upon written notice to the commission. When any employee is removed for any cause during probationary period, he shall not be entitled to a hearing before the civil service commission.” (Section 12-125)

Appellant Horace L. Smith had been appointed to the position of Assistant Director of Public Works, Waste Water Division and appellant William K. Thomasset had been appointed to the position of Assistant Director of Public Works. At the time of the termination of their respective services, each of the appellants had completed less than 12 months of service, and it appears to be a conceded fact that each then occupied the status of a probationary employee within the meaning of the Code.

The appellants’ position in this action is that since their notices of termination indicated that they were being discharged for economic reasons, they were entitled to a hearing before the Civil Service Commission notwithstanding that they were probationary employees.

Both the appellants were notified by the Director of the Department of Public Works that their termination was “necessary due to reduction in force in management brought about by economic conditions.” On this basis, the appellants argue that Rule 11 of the Civil Service Code, rather than Rule 9, was applicable to the circumstances of their termination. Section 12-140 of Rule 11, applicable to “Layoffs” provides:

“When a position is abolished through reorganization of a department or reassignment of duties, or is discontinued by reason of lack of work or funds, or other good cause, the incumbent of that position shall be so notified and at the stated time his salary and work shall cease. This shall constitute a layoff. It shall be for reasons not reflecting discredit upon the employee and the department head shall so notify the employee in writing at least five (5) days in advance of the layoff, and a copy of the layoff notice forwarded promptly to the director. A suspension, dismissal, or discharge shall not constitute a layoff and vice versa. Every layoff shall be subject to review by the commission.”

In response to the appellants’ argument, the appellees contend that the reasons stated in the notifications were merely designed to protect appellants’ professional reputations and to assist them in their future employment prospects and that the testimony of the Director of the Department of Public Works shows that they were discharged for unsatisfactory service. The appellees direct attention to the civil service forms under which the appellants’ terminations were processed, indicating that appellants were “discharged” rather than “laid off”.

Under Rule 9 of the City of Houston Civil Service Code, probationary employees are not considered “classified employees” until the completion of their probationary period, and the rules relating to employees within the classified service are not applicable to their positions. Thus, the provisions of Rule 11 do not apply to probationary employees and they may be removed for sufficient cause without a hearing before the civil service commission. See, 15A Am. Jur.2d, Civil Service, § 57, pp. 77-78.

In the case at bar the Commission determined that the appellants had been dismissed for sufficient cause under the provisions of Rule 9. Unless the City’s action is shown to have been arbitrary or capricious, the Commission’s ruling should not be disturbed. Louisville Professional Fire Fighters Ass’n v. City of Louisville, 508 S.W.2d 42 (Civ.App.Ky.1974); 62 C.J.S. Municipal Corporations § 740, pp. 1523-1525.

In the absence of statutory authority, there is no inherent right to appeal an order of the civil service commission to the district court, unless the commission’s order affects “vested property rights or otherwise violate some constitutional provision.” City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951); Sanchez v. El Paso Civil Service Commission, 475 S.W.2d 323, 324 (Tex.Civ.App.-El Paso 1971, writ ref’d n. r. e.); Pruitt v. City of Houston, 548 S.W.2d 90 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ). The appellants held no vested right in their appointed positions and their removal was consistent with the provisions of the City’s Civil Service Code and did not constitute a denial of their fundamental rights of due process. Louisville Professional Fire Fighters Ass’n v. City of Louisville, supra; City of Tacoma v. Civil Service Board of Tacoma, 10 Wash. App. 249, 518 P.2d 249 (1973).

The trial court properly concluded that it was without jurisdiction to consider the appellants’ action.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    Humberto GARZA, Appellant, v. Antonio GARZA et al., Appellees.
    No. 1013.
    Court of Civil Appeals of Texas, Tyler.
    May 26, 1977.

      John A. Pope, III, Pope & Pope, Rio Grande City, for appellant.
    Hector S. Lopez, Alice, for appellees.
   MOORE, Justice.

This is an appeal from an action in the nature of trespass to try title filed by appellant, Humberto Garza, against appellees, the County of Jim Hogg (County) and Antonio Garza, Alicia (Garza) Ramos, Roberto Garza, Medardo Garza, Jr., and Leonardo Garza (the “Garza defendants”). Appellant, Humberto Garza, filed the suit on September 5, 1973, and as grounds for a cause of action alleged that on December 1, 1972, he was the owner of certain lands situated in Jim Hogg County, Texas, and that the County of Jim Hogg, acting by and through its Commissioner’s Court and the other defendants named in such suit, had taken possession of a portion of his land and had thereby cast a cloud upon his title by virtue of their claim that a certain road situated on his land was a public road. Alternatively, appellant sought a declaratory judgment declaring the road to be a private road and ancillary thereto, sought a permanent injunction restraining the county from working the road with its equipment and enjoining the other Garza defendants from using the road without his permission. Appellees answered with a plea of “not guilty” and affirmatively alleged that the road in "question constituted a public road by either dedication or by prescription. After a trial before the court, sitting without a jury, the trial court rendered a take-nothing judgment against appellant from which he perfected this appeal.

We affirm.

The road in question is generally referred to throughout the record and briefs as the “Palo Blanco” or “Palo Blanco-Alejandre-na” road. The pleadings, however, show that the road in controversy consists of the road known as the Palo Blanco road running north and south as well as a branch road emanating therefrom at the extreme north end thereof and running west. The Palo Blanco road runs generally from north to south for a distance of approximately one and one-half miles. At the extreme north end thereof it connects with another road running east to Farm Road No. 649. The portion of the lateral road in controversy extends from the north end of the Palo Blanco road in a westerly direction for a distance of approximately 2,500 feet. From there it goes on west to the Zapata County line. The Palo Blanco road is situated on the eastern edge of Survey No. 269 and is owned by appellant. The lateral road emanating therefrom is situated on the northern edge of Survey No. 269. Prior to 1966, Survey No. 269 was a part of the Martini-ano Garza Estate. Martiniano Garza was the father of appellant and grandfather of the Garza defendants. When the estate was partitioned in 1966, appellant, Humberto Garza, was allotted the east portion of Survey No. 269 on which the Palo Blanco road is situated. The land allotted to the other Garza defendants was situated to the west of the land allotted to appellant. The lateral road emanating from the Palo Blan-co road is U3ed by some of the Garza defendants as a means of ingress and egress to the land allotted them in the partition. The lateral road is also used by Antonio Garza, appellant’s brother, as a means of ingress and egress to his home situated on land owned by him lying to the north of the lateral road.

At the request of appellant, the trial court filed extensive findings of fact and conclusions of law, a summary of the findings deemed material to this appeal are as follows: (1) in 1953 the county executed a right-of-way deed to Humble Oil & Refining Company permitting the company to lay a pipeline across the Palo Blanco road, and the appellant had knowledge of such action and acquiesced therein; (2) in 1957 appellant appeared before the Commissioner’s Court and requested the county to lane and fence a portion of the Palo Blanco road; (3) the Commissioner’s Court granted appellant’s request; (4) in 1964 appellant filed a petition with the Commissioner’s Court under Tex.Rev.Civ.Stat.Ann., art. 6705 requesting the county to close the Palo Blanco road, alleging in his petition that the road was a county road; (5) appellant appeared at the hearing thereof and urged that the county road be closed; (6) after the hearing the Commissioner’s Court closed a portion of the road at its southernmost terminus but refused to close the remainder of the road; (7) appellant did not appeal therefrom and such ruling and the judgment of the Commissioner’s Court became final; (8) on September 5,1973, appellant filed a verified petition under Tex.Rev.Civ.Stat.Ann. art. 6705, requesting the Commissioner’s Court to close the remainder of the Palo Blanco road, alleging in his sworn petition that: “That the road is a public road, but no longer serves the public”; (9) appellant personally appeared at the hearing together with his attorney, after which the court entered a judgment refusing to close the road; (10) appellant did not appeal from such judgment and the judgment became final; (11) appellant has neither alleged in his pleadings nor offered proof that such sworn allegations were inadvertently made by mistake, fraud or duress and as a result he is now precluded from asserting in this action that the road in question is not a public road; (12) the county has graded and improved and maintained the Palo Blanco road with public funds continuously for a period of twenty-five years or over and the appellant had full knowledge and acquiesced therein and received the benefits of such improvements and maintenance during such period; (13) the road has been open, visible, and continuously used and recognized by the general public for a period of twenty-five years or over prior to the time the appellant acquired his title by reason of a partition of the said lands and appellant had knowledge of such use during such period of time and has at all times acquiesced in and recognized the road as a public road; (14) the State of Texas has recognized the same as a public county road and has taken periodic official traffic surveys on the road; (15) the public school system of the county has used and continues to use the roads in question daily to transport children to and from the county schools; (16) the public road described in the appellant’s pleadings has never been either abandoned by the public or closed by the Commissioner’s Court or any other court and remains open to this date; (17) the road in question runs through Surveys 39 and 270; (18) the lateral road is necessary to Medardo Garza, Roberto Garza, Alicia Ramos and Leonardo Garza as a means of ingress and egress to their land; (19) the lands owned by them as a result of the partition of the estate are enclosed entirely by the lands owned by the appellant and others and that at one time all of- the lands owned by the Garza parties, and traversed by the road in question, were owned by Martiniano Garza, deceased, the father of the appellant and grandfather of the other Garza defendants; (23) the lateral road emanating from the Palo Blanco road is used by the Garza defendants as a means of ingress and egress to the lands which they received in the partition emanating from a common source, and as to them, that portion of the road which crosses lands owned by appellant, constitutes a road by necessity and an implied dedication thereof and should not and cannot now be legally closed; and (24) the Palo Blanco road is a public road.

Appellant seeks a reversal by four points of error. He maintains that the trial court erred in finding and concluding that the road in question was a public road. Specifically, he contends that the road is not a public road because there is no evidence that the road was ever dedicated to the public or acquired by the public through prescription. Alternatively, he contends that such finding is against the overwhelming weight and preponderance of the evidence.

It is undisputed that no part of the road in question has been laid out under any of the provisions of the statute, Tex.Rev.Civ. Stat.Ann. art. 6702, et seq., and it is likewise undisputed that no part of the road in question has ever been formally dedicated to the county by any instrument in writing.

Since the evidence relating to the Palo Blanco road as distinguished from that relating to the lateral road is somewhat different, we will first direct our attention to whether or not there is any evidence to support the trial court’s finding and conclusion that the Palo Blanco road is a public road.

Appellant testified that the Palo Blanco road has been in existence since 1945. In 1957 appellant appeared before the Commissioner’s Court of Jim Hogg County and requested the county to lane and fence a part of the road. In 1964 appellant made an effort to have the county close the road by filing a petition with the Commissioner’s Court in which he alleged that the Palo Blanco road was a public road. In response to his petition, the Commissioner’s Court closed a part of the road at its southern terminus but refused to close the northern portion of the road. In 1973 appellant filed another petition with the Commissioner’s Court of Jim Hogg County requesting the county to close the remaining part of the Palo Blanco road, alleging under oath that the road was a public road. After a hearing the Commissioner’s Court refused to close the remaining portion of the road. It is undisputed that a Mr. Molina, an employee of an oil company, maintains a residence at a point near the southern terminus of the Palo Blanco road. It is likewise undisputed that at the time appellant filed suit the county school buses used the road to transport the Molina children to and from the public schools and had used the road for that purpose since 1964. Appellant testified that oil companies also used the road for the purpose of ingress and egress to their wells situated near the southern terminus of the road. The evidence further shows that the county has continuously maintained the road and has expended funds for the purposes of grading and placing caliche on the road. Appellant did not dispute the fact that the county had so used and maintained the road. To the contrary, he alleged that by continuing to grade and maintain the road the county was destroying his natural grasses and sought to enjoin the county from maintaining the road.

Although there is no direct evidence of any specific declaration on the part of the ancient owners indicating an intent to dedicate the road to public use, the record reveals that appellant admitted in 1964 and again in 1973 that the road had in fact been dedicated to the public for public use. He also admitted in his testimony that the county had maintained the road and that it had been open to the public generally since 1945.

With regard to the lateral road extending west from the Palo Blanco road, the evidence shows that this road was first used by appellant’s brother, Anastacio, in 1938 as a means of ingress and egress to lands owned by him located west of the land owned by appellant. The record further shows that in 1950 when an oil well was being drilled on Anastacio’s land, he gave the oil company permission to open the road by grading the same with its equipment. The record further shows that another brother of appellant, Antonio Garza, owns land located north of the lateral road in question. Antonio moved on his land in 1959 and since that time has continuously used the lateral road as a means of ingress and egress to his home. While serving as a County Commissioner of Jim Hogg County in 1966, Antonio secured the services of Zapata County employees and Zapata County road equipment and made extensive improvements by grading and placing caliche on the lateral road in question from the point where it emanates from the Palo Blanco road and then on to his home situated to the north of the lateral road. He also placed a cattle guard at the point where the lateral road and Palo Blanco road connect to the road leading east to Farm Road No. 649. Antonio served as County Commissioner for fifteen years during which time the county maintained the lateral road. The County Judge testified that he had used the road to visit Antonio’s home. From an aerial photograph it appears that the lateral road is well defined on the ground. There is nothing in the record showing that appellant ever objected to the improvements made on the road by his brother Antonio or that appellant ever attempted to close the road until shortly before he filed the present suit. According to appellant’s testimony, he has no desire to close the lateral road so as to deprive his brother or the other Garza heirs of its use. He testified he only wants to place a lock on the gate at the entrance of the road and to give each of them a key. We have concluded that the foregoing evidence raises a fact question upon the issue of whether both segments of the roadway in question became a public road by implied dedication. The rule relating to the establishment of public roads is stated by Judge Gaines in the early case of Worthington v. Wade, 82 Tex. 26, 17 S.W. 520 (1891), as follows:

“All roads which have been laid out and established by authority of the commissioners’ courts are public roads. Rev.St. art. 4359 [now Tex.Rev.Civ.Stat.Ann. art. 6702, et seq.]. A road not originally established under the statute may become public by long-continued use and adoption as such by the county commissioners with the assent of the owner or by prescription. A road may also become public in the sense that the public have the right to use it, by dedication.”

In the case of Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957, 958 (1962), the court quoted with approval language in the case of Abbott v. Mills, 3 Vt. 521, 527, 23 Am.Dec. 222, which we think is equally applicable here. In that case the court said: “the act of throwing open the property to the public use, without any other formality, is sufficient to establish the fact of a dedication to the public; and if individuals, in consequence of this act, become interested to have it continue so, * * * the owner cannot resume it.”

In the case of O'Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 882-83 (1960), the Supreme Court stated:

“Common law dedications, such as the one here involved, are subdivided into two classes, express and implied. This dedication falls in the latter class. The unequivocal acts and conduct of the petitioner, O’Connor, and his predecessors in title, show an implied intention to appropriate the roadway to public use. * If the open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate * * Elliott, Roads and Streets (2d Ed.), Sec. 124, p. 121.”

In Dunn v. Deussen, 268 S.W.2d 266, 269 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.), the court quoted from the Owens case as follows:

“ . . . ‘However, the theory of implied dedication carries with it the idea that the owner consented to the use of his land as highway to the extent that the court will hold that he dedicated it to public use, whether by express words, overt acts, or even by such inaction on the part of the owner as would justify a conclusion that he intended to dedicate his land to public use.’
“A dedication may be shown by circumstances. Owens v. Hockett, supra.”

The theory of implied dedication carries with it the idea that the owner consented to the use of his land as a public road to the extent that the courts will hold that he dedicated it to public use, whether by express words, overt acts or even by inaction on the part of the owner as would justify a conclusion that he intended to dedicate his land to public use. Mallett v. Houston Contracting Co., 388 S.W.2d 216 (Tex.Civ.App.-Beaumont 1965, writ ref’d n. r. e.), Brown v. Kelley, 212 S.W.2d 834, 837 (Tex.Civ.App.—Fort Worth 1948, no writ). The question of whether a public right-of-way has been acquired by implied dedication is a question of fact. See 28 Tex.Jur.2d Highways and Streets sec. 6, p. 43.

Upon viewing the evidence in a light most favorable to the judgment, as we are required to do, we have concluded that the evidence supports the trial court’s finding, and conclusion that the roadway in question is a public road by reason of an implied dedication. After considering all of the evidence, both that in favor of the findings and judgment, we find that we cannot agree with appellant’s contention that the judgment is so against the overwhelming weight and preponderance of the evidence so as to be unjust.

Accordingly, the judgment of the trial court is affirmed.


author: CADENA, Justice.

text:
    A. E. M., Appellant, v. The STATE of Texas, Appellee.
    No. 15831.
    Court of Civil Appeals of Texas., San Antonio.
    June 15, 1977.

      Rudolph Georges, Hope, Henderson, Hoh-man & Georges, San Antonio, for appellant.
    Bill M. White, Crim. Dist. Atty., Gerald R. Zwernemann, Michael P. Peden, Irene Canoles-Janssen, Asst. Crim. Dist. Attys., San Antonio, for appellee.
   CADENA, Justice.

Appellant seeks reversal of the judgment of the trial court declaring him a delinquent child. His principal complaint is based on the fact that under the court’s charge to the jury the jury was permitted to, and in fact did, base its finding that he had engaged in delinquent conduct on an offense not alleged in the State’s petition.

The State’s petition charged that appellant committed the offense of aggravated rape as defined in § 21.03, Tex.Penal Code Ann. (1974).

The trial court’s charge defined the offenses of rape, aggravated rape, assault, and aggravated assault. Appellant has no complaint concerning the portion of the charge permitting the jury to find that he engaged in delinquent conduct if they found beyond a reasonable doubt that he committed the offense of aggravated rape, nor does he challenge the abstract correctness of the various definitions embodied in the charge.

Appellant’s challenge is directed to paragraphs VI and VII of the charge. Paragraph VI instructed the jury that if they believed beyond a reasonable doubt that appellant committed the offense of rape, but had a reasonable doubt concerning the existence of facts necessary to make the offense aggravated rape, then they could not find that appellant committed the offense of aggravated rape, but they must find that he committed the lesser offense of rape and that he therefore engaged in delinquent conduct.

Paragraph VII instructed the jury that if they found beyond a reasonable doubt that appellant committed the offense of aggravated assault, but had a reasonable doubt concerning the fact of sexual intercourse, they could not find appellant guilty of aggravated rape, but must find he committed the lesser offense of aggravated assault and that he had engaged in delinquent conduct.

Appellant properly excepted to the charge on the grounds that it permitted the jury to base its finding of delinquency on the basis of commission by appellant of an offense other than that alleged in the State’s petition.

Appellant’s three points of error are as follows:

(1) It was error for the trial court to instruct the jury that they could find that he engaged in delinquent conduct if they found that he had committed rape or aggravated assault, since the commission of these offenses was not alleged in the petition.

(2) The submission of the instructions concerning rape and aggravated assault was error, since the trial court failed to explain to appellant and his parents that those issues were raised by the State’s allegations, if, in fact, the allegations in the State’s petition were sufficient to permit a finding of delinquency based on the commission of such lesser offenses.

(3) Since appellant was not given timely notice of the fact that he was charged with the commission of the offenses of rape and aggravated assault, a charge permitting a finding of delinquency to be based on a finding that appellant committed either of those two offenses denied appellant due process of law.

§ 21.03 of the Penal Code defines the offense of aggravated rape as the commission of rape, as defined in § 21.02, if the person committing such rape (1) causes serious bodily injury or attempts to cause death to the victim in the course of the same criminal episode; or (2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone. Under § 21.02 of the Penal Code, a person is guilty of rape if he has sexual intercourse with a female not his wife without her consent. An assault is defined by § 22.01 as the intentional, knowing, or reckless causing of bodily injury to another; or the intentional or knowing threatening of another with imminent bodily injury; or the intentional or knowing causation of physical contact with another when he knows or should reasonably believe that the other will resent the contact as offensive or provocative. Under § 22.02 of the Penal Code, the assault is aggravated if the assailant causes serious bodily injury to another.

The State’s pleading alleged that appellant knowingly and intentionally, by force and threats, had sexual intercourse with a female not his wife. Under § 21.-02(b)(1) and (2), the allegation of the use of force and threats is sufficient to allege that the intercourse was without the female’s consent, so that the pleading alleges commission of the offense of what is sometimes called “ordinary” rape as distinguished from aggravated rape. The pleading continues by reciting that appellant compelled the female to submit to the act of sexual intercourse by “causing serious bodily injury and by threatening the imminent infliction of death; . . . .” These allegations clearly charge the offense of aggravated rape as that crime is defined by § 21.03 of the Penal Code. The allegation concerning the causing of serious bodily injury adequately alleges the commission of the offense of aggravated assault.

The pleadings, therefore, clearly allege, albeit in one sentence, all of the elements of aggravated assault, rape and aggravated rape. It follows that the portions of the charge relating to these three offenses find support in the pleadings.

The Texas Family Code requires that at the beginning of an adjudication hearing, the judge “shall explain to the child and his parent, guardian, or guardian ad litem: (1) the allegations made against the child; (2) the nature and possible consequences of the proceedings; . . . .” Tex. Family Code Ann. § 54.03(b) (1974). Appellant contends that there was a lack of compliance with this requirement because the judge did not explain that he was accused of having committed rape or aggravated assault.

A child may not be declared to have engaged in delinquent conduct absent compliance with the requirements of § 54.-03(b)(1) and (2) of the Family Code. D. L. E. v. State, 531 S.W.2d 196 (Tex.Civ.App.—Eastland 1973, no writ). Cf. In re K. W. S., 521 S.W.2d 890 (Tex.Civ.App.—Beaumont 1975, no writ); R. K. M. v. State, 520 S.W.2d 878 (Tex.Civ.App.—San Antonio 1975, no writ).

The pertinent portion of the juvenile court’s “explanation” under § 54.02 is as follows:

The Court: . . . You’re here with your attorney too, Mr. Georges, who I am sure has explained to you the contents of the State’s First Amended Petition that alleges you’re guilty of the offense of Aggravated Rape. Have you discussed that charge with the attorney Mr. Georges?
[Appellant]: Yes, sir.
The Court: Has he explained to you what your rights are?
[Appellant]: (Nods in the affirmative).

The court, in fact, “explained” nothing to appellant. The explanation is essentially an inquiry as to whether appellant’s attorney had “explained” the allegations to appellant. The court made no effort to explain the meaning of the term, “aggravated rape.” The court did not explain that, under the allegation of aggravated rape, he could also be found guilty of rape or aggravated assault.

To “explain” is to make something plain. It is difficult to conclude that a statement of an assumption by the court that the required explanation has been given by someone else, followed by a question asking whether appellant had discussed the “contents” of the State’s pleading with appellant, made anything plain to anyone. The court did not tell appellant that he could be found to have engaged in delinquent conduct if the jury found that he had committed the offense of aggravated rape, or the offense of rape, or the offense of aggravated assault.

Unless we attribute to this 15-year-old boy a knowledge of the constituent elements of aggravated rape, rape, and aggravated assault, and a knowledge of the fact that the language which charges aggravated rape is also necessarily sufficient to charge rape, and the further knowledge that, sometimes, the language which charges aggravated rape is also sufficient to charge aggravated assault, it cannot seriously be argued that the court made anything plain to appellant other than the fact that the court was confident that the necessary explanations had been given by some other person.

Since we have concluded that the requirements of § 54.03 of the Family Code were not observed, it becomes unnecessary to consider appellant’s due process contentions.

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

      . The summary of paragraphs VI and VII set out in this opinion does not reflect the fact that the charge was couched in more elaborate form which correctly placed the burden of proof and gave to appellant the full benefit of the rule of reasonable doubt. The summary of the charge in this opinion is, perhaps, subject to objections not applicable to the actual charge delivered to the jury,

      . We need not engage in speculation concerning the nature of a juvenile delinquency proceeding. If we view it as civil in character, the charge was correct under our rules of civil procedure. If it is considered a criminal proceeding, the charge correctly embodied instructions concerning rape and aggravated assault under the doctrine of lesser included offenses. § 37.09, Tex.Penal Code Ann. (1974).

      . Under § 21.03(a)(2) of the Penal Code, the rape is aggravated if submission is compelled by threat of death, serious bodily injury or kidnapping. A threat of kidnapping would not necessarily be a threat of serious bodily injury and, therefore, compulsion of submission by threat of kidnapping would not necessarily constitute aggravated assault.


author: JAMES, Justice.

text:
    O. J. BURNETT, Appellant, v. Virgil E. FILE, Appellee.
    No. 5686.
    Court of Civil Appeals of Texas, Waco.
    June 16, 1977.
    Rehearing Denied June 30, 1977.

      James E. Brown, Dallas, for appellant.
    Arlen D. Bynum, Bradshaw & Bynum, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is an appeal by Plaintiff Burnett from a take nothing judgment rendered against him on a jury verdict, in a suit for personal injuries resulting from an automobile rear-end collision. We affirm the judgment of the trial court.

Plaintiff-Appellant O. J. Burnett sued Defendant-Appellee Virgil E. File for personal injuries allegedly sustained by Plaintiff-Appellant growing out of an automobile accident wherein Defendant-Appellee File allegedly rearended Plaintiff-Appellant Burnett.

Trial was to a jury, which found that Plaintiff-Appellant Burnett was not injured as a result of the collision, in Answer to Special Issue No. 1. Pursuant to said verdict, the trial court entered judgment that Plaintiff-Appellant take nothing.

Plaintiff-Appellant asserts error on the part of the trial court (1) in refusing Plaintiff leave to file a trial amendment, (2) in refusing to submit the definition of “injury” as submitted by Plaintiff, (3) in submitting an erroneous definition of “injury” to the jury, (4) in conditionally submitting Special Issues Nos. 2 through 14 on a positive finding of Special Issue No. 1, and (5) that the jury’s answer to Special Issue No. 1 is factually insufficient. We overrule all of Plaintiff’s points of error and affirm.

The basis of this suit is an alleged rear-end collision that occurred on March 9,1974, near the intersection of Irving and Hampton Boulevards in Dallas County. Plaintiff was stopped for traffic in front of him at that intersection when he was allegedly hit from the rear by the automobile driven by the Defendant. Plaintiff’s Original Petition in this case was filed on July 31, 1974. In October 1974, Defendant filed its answer in the case. Plaintiff filed his Second Amended Original Petition on March 20, 1976, which is the pleading he went to trial upon. In none of said pleadings did Plaintiff allege any aggravation of any pre-ex-isting condition. In other words, in said pleadings Plaintiff alleged personal injuries growing out of the accident of March 9, 1974.

The case proceeded to trial on April 12, 1976, and the jury returned a verdict on April 13, 1976, finding that Plaintiff sustained no injury in the accident. After Plaintiff had rested his case and near the end of the trial, Plaintiff’s counsel “served notice” that he intended to file a Trial Amendment of some sort. Plaintiff did tender a Trial Amendment some time after both parties had closed and prior to the submission of the court’s charge to the jury. By said Trial Amendment the Plaintiff alleged for the first time that on the occasion of the March 9, 1974, accident in question, he was suffering from a “pre-existing disease or condition” which was “incited, accelerated, and/or aggravated" by the accident in question. Defendant objected to the filing of said Trial Amendment alleging surprise, and because the case was tried on the theory of an original injury, whereupon the trial court denied Plaintiff leave to file such Trial Amendment.

Plaintiff-Appellant contends the trial court abused its discretion in denying him leave to file such Trial Amendment. We do not agree.

The filing of a Trial Amendment is within the sound discretion of the trial court and unless the trial court clearly abuses that discretion no reversible error is shown. Rule 66, Texas Rules of Civil Procedure; Victory v. State (Tex.1942) 138 Tex. 285, 158 S.W.2d 760, 763.

The instant case was pleaded by Plaintiff and tried upon the theory that Plaintiff sustained an original injury as the result of the accident of March 9, 1974. It was after both sides had closed and before the court’s charge was submitted to the jury that Plaintiff sought leave from the trial court to file the Trial Amendment in question. Had same been granted, it would have changed the entire nature and complexion of the lawsuit. Moreover, there was no explanation by the Plaintiff as to why he was not aware of the “aggravation” basis of his Trial Amendment sooner. In the language of our Supreme Court: “to require the trial court to permit amendments such as the one filed in this case would disrupt orderly procedure and lead to frequent interruptions and interminable delay in concluding expensive jury trials. McDonald’s Texas Civil Practice; vol. 2, page 737.” Westinghouse Electric Corp. v. Pierce (Tex.1954) 153 Tex. 527, 271 S.W.2d 422; King v. Skelly (Tex.1970) 452 S.W.2d 691. Here, the Defendant had the right to assume that the case made by the pleadings and testimony was the case and the only case he was called upon to defend and to prepare his defense accordingly. See Westinghouse, supra, and the cases cited in support of this proposition, 271 S.W.2d on page 424; Erisman v. Thompson (Tex.1943) 140 Tex. 361, 167 S.W.2d 731; Safety Casualty Co. v. Wright (Tex.1942) 138 Tex. 492, 160 S.W.2d 238.

Under the record before us, we cannot say the trial court abused its discretion in denying leave to Plaintiff to file the Trial Amendment.

Special Issue No. 1 as submitted to the jury inquired:

“Do you find from a preponderance of the evidence that O. J. Burnett was injured as a result of the occurrence on March 9, 1974?

“You are instructed that a person is ‘injured’ if he receives damage or harm to the physical structure of the body.

“Answer ‘we do’ or ‘we do not.’ ” To this issue the jury answered “we do not.”

Then the court instructed the jury that “if you have answered the above issue ‘we do’ then you will answer Issues Numbers 2, 4, 6, 8, 10, 12, and 14; otherwise, do not answer them.” In this connection, Issues Nos. 2 through 14 were issues inquiring into primary negligence (and proximate cause) of Defendant together with a damage issue.

Plaintiff requested that the trial court define “injury” to the jury as follows:

“You are instructed that a person is ‘injured’ if he receives damage or harm to the physical structure of the body. Such damage or harm includes such diseases and infections as naturally result therefrom, and the incitement, acceleration, or aggravation of any previously existing disease or condition by reason of such damage or harm to the physical structure of the body.”

The trial court refused to submit Plaintiff’s proffered definition of “injury,” which refusal Plaintiff asserts as error. As stated above, Plaintiff had no pleadings to support such a definition.

However, Plaintiff strongly urges that the issue of “aggravation” was tried by implied consent on the part of the Defendant, under the provisions of Rule 67, Texas Rules of Civil Procedure. We do not agree. The record clearly establishes the Defendant’s objection to the Trial Amendment and requested instructions on aggravation as hereinabove set out. In Harkey v. Texas Employers Ins. Assn. (Tex.1948) 146 Tex. 504, 208 S.W.2d 919, our Supreme Court held that although the Defendant did not object to the testimony relative to an issue but did object to its submission because it was not pleaded, it could not be held that the issue was tried by consent. In that case the Defendant offered no objection to testimony on an essential issue, but it did object to its submission because it was not pleaded. The Supreme Court held that the issue could not be presumed to have been tried by consent and that submission of such un-pleaded essential issue over proper objection constituted reversible error. Also see Missouri-Kansas-Texas Railroad Co. v. Franks (Tex.Civ.App. Eastland CA 1964) 379 S.W.2d 415, NRE.

In the case at bar, under the record before us, the rule enunciated in Harkey applies, and it cannot be said that the issue of aggravation was tried by implied consent.

Next, Appellant complains of the trial court’s submitting Special Issues Nos. 2 through 14, inclusive, conditioned on a positive finding of Special Issue No. 1. As stated, in answer to Issue No. 1 the jury failed to find that Plaintiff suffered an injury as the result of the accident of March 9, 1974. Special Issues Nos. 2 through 13 inquired of grounds of primary negligence and proximate cause on the part of the Defendant, while Issue No. 14 was the damage issue. The trial court conditioned Issues Nos. 2 through 14 upon a positive finding to Issue No. 1. Since the jury made a negative finding to Issue No. 1, they made no answer to Issues Nos. 2 through 14, as instructed by the trial court. Appellant asserts that conditioning Issues Nos. 2 through 14 upon a positive finding to Issue No. 1 was error, saying it was a comment on the weight of the evidence and placed a greater burden of proof upon Appellant than that required by law. We overrule this contention.

The burden of proof is upon the Plaintiff to prove that he has been injured, where that matter is put in issue, as in the case at bar. Where the jury fails to find that Plaintiff has been injured, as here, then all the other issues (Nos. 2 through 14) become immaterial. Texas & Pacific Railway Co. v. Van Zandt (Tex.1958) 159 Tex. 178, 317 S.W.2d 528; Marks v. Saul (Tex.Civ.App. Fort Worth CA 1959) 326 S.W.2d 24, NRE.

Finally, Appellant contends the jury’s answer to Special Issue No. 1, that Plaintiff was not injured as a result of the March 9, 1974 accident, is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate (Tex.1951) 150 Tex. 662, 244 S.W.2d 660. Without detailing the evidence, we have carefully weighed all the evidence for and against said finding (or rather failure to find) and have concluded that the jury’s answer to Issue No. 1 is supported by factually sufficient evidence, and is not against the great weight and preponderance of the evidence under the test set out by our Supreme Court in In re King’s Estate, supra.

Finding no reversible error in the record, we affirm the trial court’s judgment.

AFFIRMED.