author: GUITTARD, Justice.

text:
    LLOYD A. FRY ROOFING CO., Appellant, v. STATE of Texas, Appellee.
    No. 18970.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 12, 1976.
    Rehearing Denied Sept. 16, 1976.

      Jack Pew, Jr., D. L. Case, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellant.
    John L. Hill, Atty. Gen., W. Thomas Buckle, Asst. Atty. Gen., Austin, for appel-lee.
   GUITTARD, Justice.

This appeal is taken from a temporary injunction restraining the operator of a plant manufacturing asphalt shingles from violating the regulation of the Texas Air Control Board limiting opacity of emissions into the atmosphere. The temporary injunction was granted after this court had reversed a final judgment in favor of the State for injunctive relief and statutory penalties under the Texas Clean Air Act, Tex.Rev.Civ.Stat.Ann. art. 4477-5 (Vernon Supp.1974), and had remanded the cause for further proceedings. Lloyd A. Fry Roofing Co. v. State, 524 S.W.2d 313 (Tex.Civ.App. —Dallas 1975, writ ref’d n. r. e.). On this appeal the defendant contends that the trial court abused its discretion in granting the temporary injunction because (1) there is no evidence of defendant’s violation of the regulation, (2) the temporary injunction is not sufficiently specific under Tex.R.Civ.P. 683, and (3) the regulation itself is too vague to give notice of the conduct which may be in violation. For the purpose of determining whether the trial court abused its discretion in issuing the temporary injunction, we hold that both the regulation and the injunction are sufficiently specific, so far as the present record shows, and that the evidence is sufficient to support the trial court’s finding of a violation. Accordingly, we affirm the trial court’s order.

1. Validity of the Regulation

All of defendant’s contentions, as we view them, turn on the meaning of the term “uncombined water” as used in the Board’s regulation, which directs that “uncombined water” be excluded from determinations of opacity. Consequently, we consider first the meaning of the regulation.

Administrative regulations are tested by the same principles of construction as statutes. Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41, 45 .(Tex.1970), app. dism. 400 U.S. 986, 91 S.Ct. 459, 27 L.Ed.2d 435 (1971); Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1025 (1942). A statute is unconstitutionally vague only when a required course of conduct is stated in terms so vague that men of common intelligence cannot be sure of what is required; that is, when there is substantial risk of miscalculation by those whose acts are subject to regulation. Texas Liquor Control Board v. Attic Club, Inc., supra.

Accordingly, we review the applicable provisions of the Board’s regulation to determine whether its meaning is clear enough to give reasonable notice of what is required. Rule 103.1 of the regulation provides:

No person may cause, suffer, allow or permit visible emissions from any stationary flue to exceed an opacity of 30% averaged over a 5-minute period.

This rule is modified by the following provision of rule 103.7:

Contributions from uncombined water shall not be included in determining compliance with Rule 103. The burden of proof which establishes the applicability of Rule 103.7 shall be upon the person seeking to come within its provisions.

The term “uncombined water” is not defined in the regulation or in the statute, but the regulation provides as follows:

Unless specifically defined in the Act or in the Rules of the Board, the terms used by the Board have the meaning commonly ascribed to them in the field of air pollution control.

In view of this provision we must assume that “uncombined water” is used in its technical sense in the field of air pollution control, if it has a technical meaning in that field. When a term used in a statute has a peculiar or technical meaning as applied to some art, science, or trade, the court will look to the particular art, science, or trade from which it was taken in order to ascertain its meaning. O’Hara v. Luckenbach S.S. Co., 269 U.S. 364, 370, 46 S.Ct. 157, 159, 70 L.Ed. 313 (1926); Texas & N. O. R. Co. v. W. A. Kelso Building Material Co., 250 S.W.2d 426, 430 (Tex.Civ.App. — Galveston 1952, writ ref’d n. r. e.). If such a technical term is not defined in the statute, courts have interpreted the statutes in the light of the testimony of expert witnesses familiar with the particular art, science, or trade. See Order of Railway Conductors v. Swan, 329 U.S. 520, 525-28, 67 S.Ct. 405, 408, 91 L.Ed. 471 (1947); Texas Alcoholic Beverage Commission v. Major Brands of Texas, Inc., 492 S.W.2d 616, 620 (Tex.Civ. App. — Austin 1973, no writ).

We cannot take judicial notice of the technical meaning of “uncombined water” in the specialized field of air pollution control. Therefore, in accordance with the above authorities, we must construe the term in the light of the record in this case. In this process we are aided by a presumption that the regulation is valid. A statute is presumed to be valid and the burden is on the party asserting its invalidity. Texas State Board of Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729, 732 (Tex.1970). The same presumption is applied to administrative regulations. Brown v. Humble Oil & Refining Co., 126 Tex. 296, 87 S.W.2d 1069,1070 (1935); State v. Lloyd A. Fry Roofing Co., 9 Or.App. 189, 495 P.2d 751, 754 (1972).

We conclude that defendant has not discharged its burden to establish invalidity of the regulation. Mere absence of a definition of “uncombined water” in the regulation does not establish that the term is impermissibly vague. Only those terms whose meaning is not otherwise clear require definition. Neither is impermissible vagueness shown by the evidence in this case. The only testimony casting doubt on the meaning is that of defendant’s witness Morris Key, an analytic chemist and consultant in the environmental field. He did not testify concerning the meaning of “uncombined water” in the field of air pollution control. He said that in the field of chemistry the term “combined” has a well-known meaning, that is, when two substances combine they form a third substance with properties dissimilar to the individual components, as hydrogen and oxygen combine to form water. He testified that the emissions from defendant’s plant contain asphalt or hydrocarbon particles around which water has condensed, and that the water so condensed is “uncombined” in the chemical sense, although it is physically “adsorbed” to the asphalt nucleus. In his opinion, such “adsorbed” water does not evaporate as quickly as condensed water droplets containing no such nuclei, and thus does not form a definite line of demarcation easily detectable by an opacity observer. When asked whether the process of “adsorption,” which he had described, was a “physical combination of water with asphalt particles,” he testified that it was “not a combination in the sense of my training.” He added, however, “When you start talking physical combinations you are outside the realm of my experience.” From this testimony the inference may be drawn that Mr. Key would not venture an opinion as. to the meaning of the term outside the field of chemistry. He gave no testimony concerning the meaning of the term in the field of air pollution control, nor did he assert that the term was not well understood in that field.

The only direct testimony on the meaning of the term in the field of air pollution control is that of Dean Wolbach, the Board’s Chief of Methods Evaluation Group for Source Surveillance. Dr. Wolbach holds a Ph.D. degree in organic chemistry and has received special training in various aspects of air pollution sampling and abatement. He testified that he knew of no confusion concerning the definition of the term “uncombined water” in the field of air pollution. He said that in the scientific field as it relates to opacity observation, “uncombined water is water that has condensed, become visible in what we call layman’s steam.” According to Dr. Wolbach, if there is such “layman’s steam” present in the “plume” emitted from a stack, there is a clear-cut demarcation where the plume of steam disappears, and observers should read the plume beyond that point for the purpose of determining the opacity of the emissions. Other witnesses for the State, who were trained and certified by the Board as opacity observers, testified that they could easily determine whether a plume contained uncombined water by observing it and looking for a definite line of demarcation where the condensed water or “layman’s steam” dissipates.

Some corroboration of this testimony was provided by defendant’s witnesses. Cynthia Placko testified that she had seen “steam plumes,” which were very white and dense and were soon dispersed into the air. R. L. Chaffin testified that it is easy to determine a line of demarcation when steam coming out of a stack condenses on hitting the outside air and then quickly dissipates, but difficult when moisture is emitted in the form of “condensed water.”

Since the Board’s regulation expressly provides that terms not specifically defined should “have the meaning commonly ascribed to them in the field of air pollution control,” and since Dr. Wolbaeh was the only witness to testify concerning the meaning of “uncombined water” as commonly understood in that field, we conclude that defendant has not overcome the presumption of validity of the regulation. Consequently, we hold that the trial court could properly determine for the purpose of issuing a temporary injunction that the term was well understood in that field and was sufficiently definite to give reasonable notice of its meaning.

In view of Dr. Wolbach’s testimony that “uncombined water” in rule 103.7 means condensed water which is visible in the plume and quickly dissipates at an easily observable point, it follows that moisture which does not so dissipate because of its attachment by “adsorption” to an asphalt nucleus is not “uncombined water” within rule 103.7, although it may not have formed a combination with the nucleus in a chemical sense.

This interpretation is supported by the Board’s administrative construction of its regulation. Besides Dr. Wolbaeh, the three opacity observers who appeared as witnesses for the State testified that in their training by the Board, they were instructed to exclude uncombined water from their observations of opacity by reading the plume beyond the point at which visible moisture dissipates, and that they had no difficulty in doing so. Defendant’s witness Key acknowledged that he was so instructed. This interpretation by the agency charged with enforcement of the regulation is entitled to weight in the courts. Calvert v. Kadane, 427 S.W.2d 605, 608 (Tex.1968). The administrative construction is apparently well known in Texas in the field of air pollution control, since the record shows that all certified opacity observers receive the Board’s course of instruction before certification.

Defendant contends that if “uncombined water” is interpreted as applying only to “layman’s steam,” which is quickly dissipated and easily recognizable, the regulation is discriminatory because it does not exclude other forms of moisture. We see no discrimination in this respect. No problem arises with respect to invisible water vapor because the opacity regulation applies only to visible, emissions. With respect to “adsorbed moisture,” if defendant is correct in its theory that when moisture condenses around nuclei composed of other materials it is not dissipated at a clear line of demarcation, the Board may properly consider such moisture as being in a category different from that of moisture which is not combined in the physical sense with other material. Moreover, as we shall show hereafter, the evidence in this case would support an implied finding by the trial court that no such “adsorbed” moisture was present in the emissions from defendant’s plant. Consequently, defendant has no standing to challenge the regulation on the ground of discrimination.

Defendant also asserts invalidity of the regulation on the ground that the Board’s method of determining opacity by visual observation is inherently inaccurate and is so recognized by the Board in allowing in its tests of certified observers the margin of error of fifteen percent for an individual reading and seven and one-half percent for an average of fifty readings. Defendant asserts that this margin puts it at the unbridled mercy of the Board’s representatives, who may make their determinations arbitrarily and without reference to any definite standard. We are not persuaded that the allowance of this margin of error gives the Board’s observers unlimited discretion. The evidence shows that certified observers must not only receive the Board’s course of instruction and pass its tests, but that they also must be tested and recertified for each six months’ period. There is also evidence that although the readings of certified observers are subject to some variation, experience has shown such variations to be less than five percent.

The allowed margin of error might raise a serious question if the charge of violation of the regulation were based on opacity readings exceeding the permitted thirty percent by less than the amount of the margin. On the other hand, the allowance of this margin of error presents no problem when the opacity readings are in excess of fifty percent, as were those of the State’s witnesses in this record.

Defendant attacks the regulation on the further ground that its operations are subject to the unlimited discretion of the Board’s observers, since their observations are subjective and defendant has no notice of the times when such observations are to be made. On the former appeal we held that lack of notice was not a denial of due process because defendant was not left without rebutting evidence and observations without prior notice were necessary for detection of violations. Tex.Civ.App., 524 S.W.2d 313, 318. We adhere to that holding. We now hold that similar considerations apply to defendant’s contention of unlimited discretion on the part of the Board’s observers. Defendant presented the testimony of three certified observers, none of whom testified that the Board’s observation methods were inherently unreliable, and there is no evidence in the record tending to show that the State’s observers were arbitrary or capricious in making or recording their observations. One of defendant’s witnesses, R. L. Chaffin, testified to opacity readings at the lip of the stack in the same range as those of the State’s witnesses and differed with them only as to whether the plume at that point contained “uncombined water.” Like the State’s witness, Chaffin found no definite line of demarcation where the condensed moisture dissipated, but he assumed that “uncombined water” was present, and he made other readings farther downstream. The correctness of that assumption, rather than the reliability of the Board’s method of observation, was the main issue at the temporary injunction hearing.

Similar attacks on the visual observation method of determining opacity were made by defendant and rejected by the Oregon Court of Appeals. State v. Lloyd A. Fry Roofing Co., 9 Or.App. 189, 495 P.2d 751, 754-58 (1972); City of Portland v. Lloyd A. Fry Roofing Co., 472 P.2d 826 (Or.App.1970). We conclude that in this case also defendant has not shown the Board’s method of determining opacity to be so subjective and arbitrary as to establish that the trial court abused its discretion in granting the temporary injunction.

2. Validity of the Injunction

Like reasoning applies to defendant’s attack on the trial court’s order for lack of specificity. Tex.R.Civ.P. 683 requires that an order granting an injunction “shall be specific in terms” and “shall describe in reasonable detail . . . the act or acts sought to be restrained.” The order in question restrains defendant from “permitting visible emissions . . . from exceeding an opacity of 30% averaged over a five-minute period as determined by trained visible emissions evaluators certified by the Texas Air Control Board.” It further provides that in determining compliance with this limitation “contributions from uncombined water shall not be included.”

Insofar as defendant contends that the order lacks specificity because of its use of the term “uncombined water,” we disagree because we hold in view of the evidence in this case that the term is sufficiently specific. Insofar as defendant contends that the order is impermissibly vague in providing that opacity shall be “as determined by trained visible emissions evaluators certified by the Texas Air Control Board,” we hold that the allowance of a margin of error on the part of opacity observers does not deprive the order of the required specificity. When the purpose of the injunction is to protect the public, the test of required specificity is reasonableness, and in framing the decree doubt should be resolved against the violator. Davies v. Unauthorized Practice Committee, 431 S.W.2d 590, 595 (Tex.Civ. App. — Tyler 1968, writ ref’d n. r. e.). We recognize, however, that a serious question might arise on a charge of contempt for violation of the injunction if the only variation established from the thirty percent opacity permitted by the regulation is within the range of this margin of error.

3. Sufficiency of Evidence

In its order granting the temporary injunction the court recited its findings that defendant had operated its plant in violation of rule 103.1 of the Board’s regulation “in that it has caused, suffered, allowed, or permitted visible emissions from the west stack at its Irving plant to exceed an opacity of thirty percent averaged over a five-minute period on at least the following dates: May 8, 1975; August 6, 1975; December 16, 1975; December 18, 1975; February 23, 1976; and February 24, 1976.” The court further found and recited “that on these dates any effects or contributions from uneombined water were not included in determining the percent opacity of the emissions from the west stack.” Defendant attacks these findings on the ground that there is no evidence that defendant has violated or will continue to violate rule 103.1 and on the ground that it is undisputed that the State’s observers in determining opacity did not exclude all contributions from uncombined water, as required by rule 103.7. Our examination of the record has led us to the conclusion that there is evidence to support these findings.

Defendant manufactures shingles by coating felt paper with asphalt and other materials and then cutting to the size desired. The felt comes in rolls containing an average of eight percent moisture by weight. Before immersion of the felt in tanks of hot asphalt, the moisture is driven off by spraying one side with asphalt at a temperature of 450° Fahrenheit. This moisture, together with minute particles of asphalt and other hydrocarbons, collects in a hood and is vented above the building in a flue or stack. According to defendant’s witnesses, the temperature at the top of the hood is 200° and that at the top of the stack is 110° to 145°.

It is undisputed that substantial amounts of moisture are emitted from the stack. Defendant argues that since the State’s observers made no allowance for this moisture in their readings, there is no evidence of any violation of the regulations. The issue is whether this moisture is emitted in visible form as “uncombined water,” which, according to the Board’s regulation, should not be included in the determination of opacity, or in the form of invisible water vapor, which contributes no opacity. The State takes the position that the moisture is invisible as emitted from the stack. Accordingly, the State’s witnesses testified to opacity readings immediately above the lip of the stack ranging from forty-nine percent to seventy-one percent. They saw no definite line of demarcation where the moisture dissipated and, accordingly, concluded that the plume contained no “uncombined water” that affected their readings.

Defendant’s witnesses did not make their observations at the same time as the State’s witnesses, since defendant had no notice when the State’s observations would be made. Defendant’s witnesses Placko and Key testified that they read the plume at the lip of the stack. Their opacity readings ranged from nineteen percent to thirty percent. Key testified that the opacity was greater in the morning when the temperature was lower and the relative humidity higher. Neither of these witnesses attempted to determine a point where the visible moisture dissipated. Defendant’s witness Chaffin, on the other hand, testified that he attempted to read the plume beyond the point at which the visible moisture dissipated, but had difficulty doing so since he saw no definite line of demarcation. He read the plume five to six diameters downstream and reported readings of ten percent to thirteen percent opacity, but his readings at the lip of the stack ranged from eleven percent to sixty-one percent. According to Chaffin, it is easy to determine a line of demarcation when moisture is emitted in the form of steam which condenses on striking the outside air, but almost impossible to do so when the moisture is emitted in the form of “condensed water.” Chaffin did not say whether he was referring to “condensed water” containing nuclei of asphalt or other particles. To some extent, Chaffin’s testimony corroborates the testimony of the State’s witnesses in that he saw no definite line of demarcation where the visible moisture dissipates, and some of his readings at the lip of the stack were well in excess of thirty percent.

None of the witnesses testified that moisture was being emitted in the form of steam in the sense of water vapor at a temperature above the boiling point, and none testified that condensation was taking place after the moisture was emitted from the stack. The dispute was whether the moisture emitted was in the form of visible condensed droplets or whether it was emitted as invisible water vapor such as that normally present in the atmosphere and measured in terms of humidity. Defendant offered evidence that by weight the emissions contained 97.2 or 97.3 percent water to 2.8 or 2.7 percent particulate matter, but these figures shed no light on the question of whether the water is visible or invisible.

The State’s witness, Dr. Wolbach, testified that he had investigated the operations at the plant and had made a calculation showing that the dew point of the stack effluents was below the actual temperature of the exist gasses. Accordingly, he concluded that the water vapor did not condense in the stack, but was emitted in the form of invisible vapor which did not affect the opacity of the emissions. Although Dr. Wolbach said that it would “take some testing” to determine whether the water vapor so emitted was combined or uncombined, this uncertainty apparently did not affect his opinion that the moisture was not being emitted in visible form.

The only testimony tending to show that the emissions from the stack contained water in visible form was that of defendant’s witness Key, although his own observations of the emissions at the lip of the stack produced opacity readings within the permitted thirty percent. We have already noted his opinion that before the moisture is emitted from the stack it condenses around particles of asphalt or other hydrocarbons which form nuclei to which the water is “adsorbed,” though not chemically combined, and that droplets emitted in this form do not dissipate so rapidly as to form an easily observed line of demarcation. On cross-examination, however, Key admitted that “adsorption” does not take place in substantial amounts unless the temperature is below the dew point and that the effluent gasses must be saturated with moisture before “adsorption” of substantial amounts of moisture will take place. He recognized also that asphalt and other hydrocarbons are “hydrophobic,” in that they are only slightly soluble in water, so that the condensed water is “loosely held.” He gave no testimony showing that he had made any tests to determine whether such “adsorption” was actually taking place before the moisture was emitted from the stack or whether moisture so “adsorbed” would, in fact, resist evaporation to the extent that no line of dissipation would be easily observable. Thus Key’s testimony was based on a theory which the trial court was not required to accept. See Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex. 1970). We must presume that the court impliedly found against this theory if such a finding is necessary to support the trial court’s order.

Moreover, even if Key’s theory of “adsorption” is taken as established, the trial court was not required to accept defendant’s argument that water so “adsorbed” was “uncombined water” within the meaning of the Board’s regulation. We have heretofore noted Dr. Wolbach’s definition of this term as condensed water vapor that is visible in the plume and dissipates at an easily observable point. If the water is so attached to particles of asphalt that it does not dissipate at an easily observable point, then, according to this definition, it is not “uncombined water” and need not be excluded from the determination of opacity.

In view of Dr. Wolbach’s definition of “uncombined water,” which the trial court was at liberty to accept, and in view of the State’s evidence that the emissions from defendant’s stack did not contain visible moisture, we hold that the evidence is sufficient to support the trial court’s findings.

4. Effect of This Decision

For the reasons stated we overrule all of defendant’s points of error and affirm the order granting the temporary injunction. We point out, however, that our decision is based on the present record and does not determine any issue that may be presented at the final trial on the merits. See Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 289, 248 S.W.2d 460, 464 (1952). At that trial, the validity of the regulation and the sufficiency of the evidence to establish a violation must be determined on the basis of the evidence before the court at that time. In view of this situation, we have difficulty understanding why the trial court entertained the application for temporary injunction after this court had remanded the cause for further proceedings. The better practice would have been to set the ease for an early trial on the merits. See Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421-22 (1959). The Texas Clean Air Act expressly provides that a suit brought under it “shall be given precedence over all cases of a different nature.” Tex.Rev.Civ.Stat.Ann. art. 4477-5, § 4.04(c) (Vernon Supp.1974). In view of this mandatory provision, we see no justification for hearing the application for temporary injunction and then delaying trial on the merits until after determination of the interlocutory appeal. A prompt trial on the merits would not have caused a substantially greater disruption of the docket than the hearing on the temporary injunction. We deplore the use of a temporary injunction and an interlocutory appeal to obtain determination of questions of law in advance of trial on the merits because, as above pointed out, such a decision is not binding on the merits and frequently, as in this case, the interlocutory appeal must be decided on the basis of a record, less complete than one made at a plenary trial.

Affirmed.

      . The effectiveness of this provision concerning the burden of proof is challenged by defendant. We do not reach this point, since we assume that the burden of proof is on the State to establish that its opacity readings excluded “uncombined water.”


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Elias BUHIDAR a/k/a Louie Buhidar, Appellant, v. Lyle Elmer ABERNATHY et al., Appellees.
    No. 1026.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.
    Rehearing Denied Sept. 30, 1976.

      David L. Perry, Amador C. Garcia, Corpus Christi, for appellant.
    Jack Ken Dahlberg, Jr., Guy H. Allison, Allison, Maddin, White & Brin, Inc., Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

In this automobile collision ease, Elias Buhidar sued Railey Paper Company, Inc., and its employee, Lyle Elmer Abernathy, for resulting personal injuries. Buhidar and Abernathy were each driving their automobiles in the same direction on a four lane street when Abernathy drove his car from the inside lane at an angle partially into the outside lane where Buhidar was traveling. A side-swipe type of collision between the two automobiles then occurred.

Trial was to a jury which found both primary and contributory negligence proximately causing the collision, and which found no injuries to or damages for the plaintiff. Based on the jury verdict the trial court entered judgment that plaintiff take nothing. From that judgment the plaintiff appeals.

This suit arose from a collision that occurred January 12, 1973. Thereafter, but before trial, the appellant was involved in two other automobile collisions. The first occurred in February, 1974; the second, in December, 1974.

By his pleadings and his evidence at the trial, appellant contended that he did not have significant back trouble before the January 1973 collision, but that the January collision caused him serious back difficulties which resulted in surgery, repeated hospitalization and severe permanent disability. He maintained that his weakened back was further aggravated by the two subsequent collisions. Additionally, he claimed that his back injury and disability caused him psychiatric depression, with suicidal tendencies, which in turn caused him to lose his ability to manage his business, consisting of beauty salons and wig sales and styling salons in four locations in the Corpus Christi area. All of this, according to him, produced the appellant’s eventual bankruptcy in 1974.

On appeal the appellant does not attack directly the jury findings. Instead, he levels his attack for reversal primarily on the trial court’s admission of evidence about his prior acts of misconduct. His position is that the evidence complained of was irrelevant and so inflammatory that a new trial is required.

Appellant Buhidar brings forward ten points of error. In his first three points the appellant urges that the trial court erred in admitting evidence: 1) that Buhidar had used marijuana; 2) that Buhidar had been court-martialed for being absent without leave from the armed forces in the late 1950’s; and 3) that Buhidar had been convicted on a hot check charge in the later 1950’s or early 1960’s.

In tliat regard, Dr. May, appellant’s psychiatrist, testified on direct examination that he began treating Buhidar in February following the automobile collision in January 1973. Dr. May told of the course of Buhidar’s mental condition from his first visit until his last visit in late 1974. According to the psychiatrist, Buhidar had been in a severe emotional depression with suicidal tendencies at times, which required psychiatric hospitalization on one occasion. It was Dr. May’s opinion that Buhidar’s back problems were probably a precipitating factor in his mental illness.

On cross-examination, appellees’ attorney by separate questions inquired of Dr. May whether appellant’s court-martial, hot check conviction and marijuana use could have had any influence on appellant’s emotional difficulties. Dr. May answered in each instance that it could have but that it was his opinion that it did not. This evidence was admitted over appellant’s objection and after it had first been developed outside the presence of the jury.

Appellant argues that a party may not be discredited or impeached for specific acts of misconduct; that this evidence was so remote that its probative effect was outweighed by its probable wrongful effect on the jury. He cites several cases in support of these assertions: accusation of a crime, Austin Road Company v. Ferris, 492 S.W.2d 64 (Tex.Civ.App. — Ft. Worth 1973, writ ref’d n. r. e.); possession of marijuana, Texas Employers’ Insurance Ass’n. v. Garza, 308 S.W.2d 521 (Tex.Civ.App. — Amarillo 1957, writ ref’d n. r. e.) and General Ins. Corp. v. Handy, 267 S.W.2d 622 (Tex.Civ. App. — San Antonio 1954, writ ref’d n. r. e.); desertion from the army, Gulf, G. & S. F. Ry. Co. v. Johnson, 83 Tex. 628, 19 S.W. 151 (1892).

We agree with the evidentiary principles set out in those cases, but we do not deem them dispositive of appellant’s first three points under consideration here. On the contrary, what we consider applicable here is the evidentiary principle about mental illness set out in 2 McCormick & Ray, Texas Evidence § 1532, page 379 (2d ed. 1956) as follows:

“ . . . With reference to conduct it may be said that practically every act of a person’s life throws some light on his mental condition, and therefore no limitation can be made as to the kinds of conduct receivable for this purpose. .

Essentially the same principle was approved in Miguez v. Miguez, 221 S.W.2d 293 (Tex. Civ.App. — Beaumont 1949, no writ).

There is another reason we decline to sustain appellant’s first three points. The complained of evidence was proper cross-examination of the psychiatrist as affecting the jury’s opinion of his credibility and an understanding of what he did or did not consider as a basis for his opinion. Hefley v. State, 480 S.W.2d 810 (Tex.Civ.App.— Ft. Worth 1972, no writ).

There is yet another reason we refuse to sustain these points. Appellant elicited evidence about Buhidar’s having a check returned to him for insufficient funds. This was in connection with his Small Business Administration loan payment. Further, on cross-examination, Dr. May injected his opinion about the use of marijuana that, if believed, negated any other evidence complained of about marijuana that might have been prejudicial to Buhidar. Consequently, if there was error in the admission of the evidence about acts of misconduct on the part of the appellant, it was harmless error. Rule 434, T.R.C.P. We overrule appellant’s first, second and third points of error.

In his fourth and fifth points, appellant insists that the trial court erred in refusing to allow appellant: 4) to present evidence in support of Dr. May’s testimony that infrequent use of marijuana was unrelated to appellant’s mental illness; and 5) to make a bill of exceptions on appellant’s offer of proof regarding the effects of marijuana.

After Dr. May had testified on cross-examination that appellant had used marijuana (over appellant’s objection), appellant’s counsel, on re-direct, then produced testimony from Dr. May that he saw no evidence of detrimental effect on Buhidar from smoking marijuana. By his next question, appellant’s counsel asked the doctor if marijuana smoked by appellant had had any more effect thán that smoked by appellees’ counsel. Appellees’ objection to that question was sustained.

Later, out of the presence of the jury, appellant’s counsel began to make his bill of exceptions on the matter by calling appel-lees’ counsel as a witness. The first question asked of appellees’ counsel was whether he had ever smoked marijuana. The witness interposed an objection to the question on the ground of relevancy, and the objection was sustained. No more questions were asked appellees’ counsel. But Dr. May was then asked, and he answered, several questions about the effects of any marijuana that might have been smoked by appellees’ counsel. Eventually an objection by appellees’ counsel was leveled at that line of questioning, and the objection was sustained by the trial court with the further admonition that he would hear no more on the subject, but that appellant could make a bystander’s bill if he so desired. The appellant complains here about the trial court’s action in refusing to allow completion of the bill.

We deem that there was no error in the trial court’s ruling that purported acts of misconduct by appellees’ attorney were not relevant to any condition Buhidar may have been suffering. Therefore, the trial court’s refusal to permit further similar inadmissible evidence on a bill of exceptions was not error. We point out that the trial court did not deny appellant the right to make a bill on the effects of marijuana. The court just precluded questioning about supposed acts of misconduct on the part of appellees’ counsel and appellant made no further effort to perfect his bill. There are other methods of making a bill of exceptions, none of which appellant pursued, and it was appellant’s burden to make and bring forward a proper bill of exceptions. See Victoria Comfort Air Co. v. Alamo Express, Inc., 529 S.W.2d 250 (Tex.Civ.App. — Corpus Christi 1975, no writ); LeNoble v. Weber, Hall, Cobb and Caudle, Inc., 503 S.W.2d 321 (Tex.Civ.App. — Tyler 1973, no writ); Morris v. City of Houston, 466 S.W.2d 851 (Tex. Civ.App. — Houston [14th Dist.] 1971, no writ). Appellant’s fourth and fifth points are overruled.

Appellant further urges, in his sixth and seventh points, that the trial court erred: 6) in admitting testimony that appellant and witness Galvan had participated in burning a Small Business Administration file; and 7) in failing to grant appellant a new trial on grounds of newly discovered evidence about the file.

These complaints arose from testimony about an SBA loan of approximately $36,000.00 that appellant had obtained based upon his Hurricane Celia losses. Appellant’s witness Galvan testified that he was a loan specialist for SBA; that before the subject accident, Buhidar managed his business properly; that after the accident, Buhidar was unable to manage his business properly because of his pain; that Buhidar’s SBA file was no longer in the local office because it had been transferred to Washington, D. C., in connection with Buhidar’s bankruptcy proceedings.

Thereafter, over appellant’s objection, Christine Buhidar (appellant’s former wife) testified that a file, which appellant told her was an SBA file, was burned by appellant and Galvan in the Buhidar s’ home barbecue pit. It is this testimony of Mrs. Buhi-dar that appellant says was evidence of fraudulent or criminal activity and thus inadmissible for impeachment purposes. We hold, for the reasons we have discussed in our consideration of appellant’s points 1, 2 and 3, that the evidence of file burning was admissible, at least, on the issue of appellant’s purported mental illness.

This brings us to appellant’s newly discovered evidence contention. At the hearing on the motion for new trial, appellant introduced a file purported to contain documentation of appellant’s SBA loan. The existence of the file, appellant argues, conclusively disproves Mrs. Buhidar’s testimony that the SBA file was destroyed by appellant and witness Galvan, thus the availability of the disputed file requires a reversal on the ground of newly discovered evidence.

Whether to grant a new trial upon newly discovered evidence is within the sound discretion of the trial judge. Unless an abuse of discretion is shown, the decision will not be disturbed on appeal. Mercer v. Mercer, 503 S.W.2d 395 (Tex.Civ.App. — Corpus Christi 1973, no writ); Munden v. Chambless, 315 S.W.2d 355 (Tex.Civ.App.— Dallas 1958, writ ref d n. r. e.). In order to require the granting of a new trial, it was necessary for appellant to introduce admissible competent evidence at the hearing of the motion for new trial showing the existence of the newly discovered evidence relied on, and to show that the evidence relied on did not tend only to- impeach the evidence of the adversary. Anderson v. Griffith, 501 S.W.2d 695 (Tex.Civ.App. — Ft. Worth 1973, writ ref’d n. r. e.); Jacobi v. Texas State Board of Medical Examiners, 308 S.W.2d 261 (Tex.Civ.App. — Waco 1957, writ ref’d n. r. e.). We note that the file offered at the hearing did not comply with Tex.Rev.Civ. Stat.Ann. art. 3731a; § 4 (Supp.1975) in that there is no accompanying certificate that the attesting officer has the legal custody of such record; that the file, if considered, tended only to impeach Mrs. Buhi-dar. Therefore, the trial court did not abuse its discretion in overruling appellant’s motion for new trial. Appellant’s sixth and seventh points are overruled.

In appellant’s eighth point, he asserts error by the trial court in admitting evidence of a police investigation of the appellant for an assault charge.

One of appellees’ witnesses, a nephew of appellant’s ex-wife, testified that appellant accosted him and started a fight in a fashion that did not indicate an injured back. Appellant presented evidence that no such incident occurred. Appellees later called an officer of the Corpus Christi Police Department. The officer indicated an investigation had been made of the incident. It is the officer’s testimony of which appellant complains, because it informs the jury that the nephew was identified as the victim of an assault and appellant was investigated as the assailant. And appellant says that the evidence of the investigation of him is so prejudicial as to require reversal. We disagree. The evidence about the fight was clearly admissible on the issue of appellant’s disability. And we are not convinced that the evidence of the police investigation of the fight would be error any more than the police investigation of the accident sued on would be error. Appellant’s eighth point is overruled.

Next, appellant assigns error, by his ninth point, to the trial court’s action in overruling appellant’s objections to the jury argument of appellees’ counsel which inferred other claims by appellant were pending. Appellant produced evidence of his involvement in two accidents subsequent to the accident made the basis of this suit and contended that the subsequent accidents aggravated his injuries received in the initial accident. There was no evidence of claims made based on the subsequent accidents. In his jury argument appellees’ counsel did refer to the December 1974 accident in terms that appellant “will ask for a lot of money” and that another doctor at another time will say “it’s all caused by the . December of ’74 wreck.” Appellant objected only to the first reference to the December 1974 wreck. The trial court overruled the objection. No objection was made to the second reference. Further, appellees’ attorney, after he made the above quoted argument, told the jury, “But we’re trying the first one” (of January 1973). He then followed that with a proper reference to the trial court’s charge on aggravation.

We feel that some of the argument was improper, but upon our consideration of the circumstances above and the record as a whole, we hold that the argument did not amount to such a denial of appellant’s rights as was reasonably calculated to cause or probably did cause the rendition of an improper judgment in the case. Rule 434, T.R.C.P. Appellant’s ninth point is overruled.

Finally, in his tenth and last point, appellant says that the errors complained of, considered cumulatively and in light of the entire record, were so prejudicial to the appellant as to require reversal. For the reasons and discussions set out by us in overruling appellant’s nine prior points of error, we overrule appellant’s tenth point.

The judgment of the trial court is affirmed.


author: McCLOUD, Chief Justice.

text:
    Rev. Harrol L. WATERBURY, Appellant, v. The CITY OF KATY, Texas, Appellee.
    No. 4905.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 9, 1976.
    Rehearing Denied Oct. 14, 1976.
    Jeffrey R. Parsons and Martin D. Beirne (Fulbright & Jaworski), Houston, for appellant.
    M. J. Dunlap, Jr., City Atty., Katy, Bar-net B. Skelton (Price & Skelton), Houston, for appellee.
   McCLOUD, Chief Justice.

This is an appeal from an order denying a temporary injunction. Plaintiff, Rev. Har-rol L. Waterbury, sought a temporary injunction enjoining defendant, The City of Katy, from constructing or using a roadway across his property. At the time of the hearing, the road, which was designated Seventh Street, had been opened but not blacktopped. Prior to the construction, there was no road along the route designated as Seventh Street and no evidence that the route had ever been used by the public or any individual as an access way across the property. Plaintiff prayed that on final hearing the temporary injunction be made permanent. The trial court denied the temporary injunction and plaintiff has appealed.

The property in question was deeded to plaintiff in 1969 and described in the deed as follows:

. . those certain lots, tracts or parcels of land lying and being situated in the Town of Katy, County of Harris, State of Texas, and being known and designated as Lots 1, 2, 3,4,13,14,15 and 16 out of Block 3 of North Thomas Addition to said Town of Katy, according to the map or plat of said addition as the same appears of record in the office of the County Clerk of Harris County, Texas, the above described lots also being known and described as the North One/half (N/2) of Block 3 of the North Thomas Addition to said Town of Katy, Texas." (Emphasis added)

The plat of the “North Thomas Addition to Katy” was filed in 1910. It provides that the land described therein is subdivided in lots and blocks as shown on the plat and the streets and alleys designated on the plat are dedicated to the “use of the public forever”.

The plat shows the street in controversy is located north of and adjacent to Block 3. Plaintiff introduced a copy of the minutes of the Commissioners Court of Harris County dated April 9, 1912, which contains an order canceling a portion of the “J. 0. Thomas North Addition” plat. Block 3 is listed as one of the canceled blocks. The order further provides:

“. . . and the dedication from J. 0. Thomas to the public of the streets and roads in said property be, and the same is hereby, held for naught, cancelled and declared to be of no further force and effect, and all rights of Harris County in and to the same growing out of said dedication, or otherwise, are hereby released and relinquished unto the said J. 0. Thomas, and said streets, alleys and roads are hereby discontinued as public roads of Harris County, Texas, and the said J. 0. Thomas is permitted to assess said property and hold same as acreage.” Plaintiff contends there is no evidence

that Seventh Street is a dedicated public road.

The court in Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952).announced the rules to be followed:

“ . . . The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion . . . ”

The City argues that the 1969 deed to plaintiff, which describes the tracts by reference to the recorded plat, constitutes as to plaintiff, a rededication of the street as a matter of law. It contends this is the rule announced in City of Corsicana v. Zorn, 97 Tex. 317, 78 S.W. 924 (1904), and Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950).

Plaintiff asserts those cases are not controlling because in the instant case there is no privity between the parties, such as grantor and grantee, and the recitation in the deed referring to the plat, was for descriptive purposes only, and does not show an intent to rededicate the street.

The essential question is whether the 1969 deed, containing the reference to the plat, is some evidence of an intent to rededicate the street.

In McCarver v. City of Corpus Christi, 155 Tex. 153, 284 S.W.2d 142 (1955), it was urged that an alley had been rededicated. The court said:

“The City asserts a rededication from the fact that several conveyances, including one in 1942, described the land by lot and block number and made reference to the original plat. This is not a suit between grantor and grantee to such a deed. These references may have raised an issue of fact on rededication, but where as here the suit is not between privies to the deed, a reference to a plat does not constitute a rededication unless it was so intended. City of Pearsall v. Crawford, Tex.Civ.App.1919, 213 S.W. 327, no writ history, City of Houston v. Cyrus W. Scott Mfg. Co., Tex.Civ.App., El Paso 1931, 45 S.W.2d 270, error refused. Here the rededication was at best a question of fact. Since the City did not request the submission of a special issue on this it was waived.”

We think the reference in the deed to the original plat constitutes some evidence of rededication. Since there is some evidence to support the trial court’s implied finding of rededication, we cannot say the court clearly abused its discretion in denying the temporary injunction. International Ass’n of Machinists Lodge 1488 v. Downtown Employees Ass’n, 204 S.W.2d 685 (Tex.Civ.App. —Galveston 1947, writ ref. n.r.e.); Missouri Pacific Transp. Co. v. Union Bus Lines, 210 S.W.2d 846 (Tex.Civ.App. — Eastland 1948, writ ref. n.r.e.).

We have considered all points of error, and all are overruled. The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    A. A. HULSEY, Individually and d/b/a Rio Maverick Oil Company, Appellant, v. Robert E. KEEL, Appellee.
    No. 15692.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 15, 1976.
    Rehearing Denied Oct. 13, 1976.
    John R. Feather, Dallas, for appellant.
    Royal D. Adams, Adams & Hunter, San Antonio, for appellee.
   PER CURIAM.

This is an appeal from a judgment entered on a jury verdict in appellee’s suit to reform an assignment of an oil and gas lease. Appellee has filed his motion to dismiss the appeal for want of jurisdiction wherein it is urged that the appellant’s motion for new trial was overruled by operation of law on May 17, 1976, and the appeal was not timely perfected. The controlling question presented is whether the time for decision of the motion for new trial was postponed in accordance with provisions of Rule 329b, Subd. 3.

Rule 329b(3) provides:

All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. Any such day certain shall not be more than ninety (90) days after such original or amended motion is filed.

Judgment was signed on March 29, 1976, and appellant’s motion for new trial was timely filed on April 2. On April 8, telephone conversations regarding a setting of such motion were had by appellant’s attorney, the trial judge, and appellee’s attorney. Pursuant to the suggestion of the trial judge, the attorneys verbally agreed to hear the motion for new trial on May 20. This date was confirmed by a letter of April 8, from appellant’s attorney to appellee’s attorney with a copy to the trial judge and the district clerk. The latter filed his copy with the papers in this cause on April 12. The motion for new trial was heard on May 20, although the order overruling same was not signed until June 3. Notice of appeal was contained in the order overruling the motion for new trial. The cost bond was filed on Monday, June 21.

Rule 329b(4) provides in part that, unless the decision has been postponed in accordance with subdivision three, a motion for new trial “will be overruled by operation of law forty-five (45) days after the same is filed, unless disposed of by an order rendered on or before said date.” It is settled law that an order subsequently entered purporting to overrule the motion is a nullity and cannot have the effect of extending the time for filing the record in the appellate court. Washington v. Golden State Mutual Life Ins. Co., 405 S.W.2d 856 (Tex.Civ.App. — Houston, writ ref’d), 408 S.W.2d 227 (Tex.1966); Roth v. Maryland American General Ins. Co., 454 S.W.2d 779 (Tex.Civ.App. — San Antonio 1970, writ ref’d); Flowers v. Muse, 427 S.W.2d 727 (Tex.Civ.App. — San Antonio 1968, writ ref’d).

Appellee’s attorney denies that there was an agreement postponing the decision of the motion for new trial beyond the forty-five days authorized for decision by Rule 329b, or even any discussion by the attorneys relative thereto. It is seen that there is no reference to Rule 329b or the time limitation of Rule 329b in the letter of April 8, relied on by appellant. However, it is not necessary for us to resolve this conflict of purpose in that such letter does not meet the requirements of a written agreement under Rule 11. It is there provided:

No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

In Texas & New Orleans Railroad Co. v. Arnold, 388 S.W.2d 181 (Tex.1965), the Supreme Court considered the requirements of an agreement under Rule 329b. It was there held that an unsigned agreement, although dictated into the record in open court, was not a written agreement as required by Sections 3 and 4 of Rule 329b. The Court held that Rule 11 and 329b should be considered together. When this is done, there must be a written agreement signed by the parties and timely filed with the clerk to postpone the decision. Nor can this requirement be waived by the conduct of the parties. Haase v. Greutzmacher, 521 S.W.2d 666 (Tex.Civ.App. — San Antonio 1975, no writ).

There was no such written agreement here which was signed by the attorneys or parties whereby the decision of the motion for new trial was postponed. Thus, the motion for new trial was overruled by operation of law on May 17, 1976. Appellant’s appeal bond was not filed within thirty days thereafter as required by Rule 356. This rule is mandatory and jurisdictional and compliance cannot be waived. Glidden Co. v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956); Roth v. Maryland American General Ins. Co., supra. We have no alternative but to dismiss this appeal for want of jurisdiction.

The appeal is dismissed.

      . All rule references are to Texas Rules of Civil Procedure.

      . The letter from appellant’s attorney to appel-lee’s attorney states:
      “As we discussed by telephone and in accordance with Judge Thurmond’s suggestion, I am asking the Clerk to set the Motion for New Trial for hearing in Eagle Pass at 2:00 p. m., Thursday, May 20, 1976.
      By copy of this letter I am asking the Clerk to advise Judge Thurmond of the setting.
      Thank you for your cooperation.”

      .No notice of appeal was required by Rule 353, as amended effective January 1, 1976.


author: WALTER, Justice.

text:
    Betty Joyce SAUNDERS, Appellant, v. COMMERCIAL INDUSTRIES SERVICE COMPANY, INC. and the Jim Tucker Co., Appellees.
    No. 4898.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 16, 1976.
    Rehearing Denied Oct. 14, 1976.
    W. G. Smith, Houston, for appellant.
    S. Mitchell Glassman, Glassman, Hittner & Cezeaux, William E. Satterwhite, Jr., Houston, for appellee.
   WALTER, Justice.

Commercial Industries Service Company, Inc. recovered a judgment for specific performance of a contract for the sale of real estate in a nonjury trial against Betty Joyce Saunders. Saunders has appealed.

Appellant’s first point is rather general and reads as follows:

“The trial court erred in failing to sustain defendant’s motion for judgment at the conclusion of plaintiff’s case.”

Saunders contends the contract requires Commercial to approve and accept the premises within twenty days after the execution of the contract and deliver to her a written notice of its approval. She contends this is an option contract and it is not supported by a consideration. She also contends the written notice of acceptance delivered to her “duly authorized agent” is not a compliance with the contract which required the acceptance to be delivered to her.

The contract provided:

“SPECIAL CONDITIONS. At any time prior to the closing date (as defined in this agreement), if this Agreement shall not have first been terminated, Purchaser, its agents, employees, contractors, accountants and engineers shall have the right to enter the Property for the purpose of inspecting each and/or any of the improvements and for other preliminary work .
Within twenty (20) working days after Seller’s execution of this Agreement, Purchaser shall, by written notice to Seller, approve and accept the inspection and examination reports, or this Agreement shall be automatically terminated and deemed null and void and Escrow Agent shall forthwith deliver to Purchaser the Earnest Money.”

In Texas Gas Utilities Company v. Barrett, 460 S.W.2d 409 (Tex.1970), the court said:

“Be all of this as it may, this Court in Texas Farm Bureau Cotton Ass’n v. Stoval, 113 Tex. 273, 253 S.W. 1101 (1923) spoke quite succinctly of the rule of mutuality of obligation when it said:
‘Reduced to its last analysis, the rule is simply that a contract must be based upon a valid consideration, and that a contract in which there is no consideration moving from one party, or no obligation upon him, lacks mutuality, is unilateral, and unenforceable. * * * It is quite elementary that the promise of one party is a valid consideration for the promise of the other party.’
In speaking of mutual reciprocal obligations as consideration, the rule was stated in Clement v. Producers' Refining Co., 277 S.W. 634 (Tex.Com.App.1925) that ‘where no other consideration is shown, mutual obligations by the parties to the agreement will furnish a sufficient consideration to constitute a binding contract

This bilateral contract contains mutual promises of the appellant to sell and appellee to purchase real estate in Harris County. We hold the contract was supported by a valuable consideration.

Saunders, her agent Jim Tucker Company, and Commercial signed the contract which obligated Saunders to sell a lot to Commercial and obligated Commercial to pay $27,000 for the property.

Appellant’s point of error No. Two is as follows:

Point of Error No. Two
The trial court erred in its findings of fact and conclusions of law that:
A. The Jim Tucker Company and its employee, Burton H. Kahn, were the agents of Betty Joyce Saunders for all matters in connection with the hereinafter mentioned contract of sale between Betty Joyce Saunders and Commercial Industries Service Company, Inc.
B. Burton H. Kahn was authorized as the agent of Betty Joyce Saunders to receive such written notice regarding the inspection of the premises and the acceptance of the property for purchase by Commercial Industries Service Company, Inc.
C. The letter' notice, dated April 12, 1973, from Commercial Industries Service Company, Inc., addressed to Burton H. Kahn, complied with the requirement of notice that Commercial Industries Service Company, Inc. had accepted the inspection reports and had agreed to consummate the purchase of the property from Betty Joyce Saunders.
D. The letter notice, dated April 12, 1973, from Commercial Industries Service Company, Inc., addressed to and delivered by Burton H. Kahn constituted notice to Betty Joyce Saunders in compliance with the contract of sale existing between Betty Joyce Saunders, as seller, and Commercial Industries Service Company, Inc., as purchaser.”

Saunders contends the written acceptance delivered to her agent, in the absence of special contractual arrangements, does not bind her.

The first paragraph in the contract is as follows:

“PARTIES. Betty Joyce Saunders hereinafter called the Seller, acting through the undersigned and duly authorized Agent, hereby sells and agrees to convey by General Warranty Deed unto Commercial Industries Service Company, Inc. hereinafter called the Purchaser, and purchaser agrees to buy upon the terms and conditions herein contained, the following described property with all improvements thereon situated in Harris County, Texas, to wit:
Lot 20 Block B. Kingston Oaks (unrecorded) and commonly known as 10141 Long Point Road.” (Emphasis added)

The proper notice was timely delivered to Saunders’ agent but such notice was not delivered to Saunders.

Authority of an agent is either express, implied or apparent. In 2 Tex.Jur.2d, Agency, § 36 (1959), it is said:

“. . . More explicitly, actual authority may be delegated to an agent either by words that expressly and directly authorize him to do a delegable act, or, again, such authority may be implied from the facts and circumstances attending the transaction in question. ‘Implied authority,’.in turn, may arise either independently of any express grant of authority, as from some manifestation by the principal that the particular authority in question shall exist in the agent, or it may arise as a necessary or reasonable implication requisite to effectuate some other authority expressly conferred by the principal.”

In Rognrud v. Zubert, 282 Minn. 430, 165 N.W .2d 244 (1969), the court said:

“The fact that performance by one party is conditional on the occurrence of certain events does not necessarily mean that the agreement is an option and not a contract. However, whether this agreement was a binding contract on June 30, 1964, with performance subject to conditions precedent, or whether it was then an option, the testimony clearly shows that all of the contingencies were satisfied within the specified period as enlarged by the extension executed by Mrs. Zubert on July 29.
Whether the contingencies were conditions precedent to performance or conditions to be satisfied so that Ogdahl could exercise an option, they were in fact satisfied and a binding contract resulted which obligated defendant to convey title to the property.
Defendants, however, argue that mere performance of the conditions was not enough to create a binding contract, since Ogdahl never personally told Mrs. Zubert that they had been satisfied. While there is some authority for the proposition that a party who contracts to do an act upon the occurrence of some event is not entitled to notice of the occurrence of the event as a condition precedent to his liability unless he has expressly stipulated for it, the evidence is conclusive that Og-dahl did notify Rognrud, who was exclusively defendants’ agent, of the satisfaction of these conditions and of his desire to close. It is the general rule that notice given to an agent is notice to the principal. See, Distillers Distributing Co. v. Young, 261 Minn. 549, 113 N.W.2d 175; Jackson v. Mutual Benefit Life Ins. Co., 79 Minn. 43, 81 N.W. 545, 82 N.W. 366.
Restatement, Agency (2d) § 268 provides in part:
‘(1) Unless the notifier has notice that the agent has an interest adverse to the principal, a notification given to an agent is notice to the principal if it is given:
‘(a) to an agent authorized to receive it;
‘(b) to an agent apparently authorized to receive it;
‘(c) to an agent authorized to conduct a transaction, with respect to matters connected with it as to which notice is usually given to such an agent, unless the one giving the notification has notice that the agent is not authorized to receive it.’
This case clearly fits within § 268(1). Defendants had let Rognrud handle all of the negotiations for this transaction. Og-dahl had never met Mrs. Zubert. Rogn-rud was authorized by the agreement to satisfy all of the conditions himself and did actually obtain the special use and building permits.
Therefore, when all the conditions had been fulfilled and Ogdahl was ready to close the transaction, it was not unreasonable for him to communicate with Rognrud, who was undisputedly defendants’ agent, rather than with Mrs. Zu-bert.
Accordingly, we hold that it makes no difference whether the agreement in question was an option or a contract with performance subject to conditions precedent when it was entered. Since the conditions were performed, it thereby unquestionably became a binding contract.”

We hold Saunders’ agent had express and implied authority to accept such notice and the findings of fact and conclusions of law are correct.

We have considered all of appellant’s points and find no merit in them. The judgment is affirmed.


author: BISSETT, Justice.

text:
    Lawrence BYKE et ux., Appellants, v. CITY OF CORPUS CHRISTI, Appellee.
    No. 1088.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 16, 1976.
    Rehearing Denied Oct. 14, 1976.

      Michael W. Williams, Corpus Christi, for appellants.
    Gerald L. Benadum, Asst. City Atty., Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a suit to recover discounts on ad valorem taxes which were paid in advance and prior to delinquency. Lawrence Byke and wife, Martha Byke, filed suit on October 22, 1974 against the City of Corpus Christi, Texas, wherein they sought a recovery in behalf of themselves and other persons of “monies equal to the discounts required by law” due plaintiffs and their “class” for advance payments of ad valorem taxes for the year 1973 and previous years, and that the defendant be required to allow discounts in the future for advance payment of ad valorem taxes. Both the plaintiffs and the defendant filed motions for summary judgment. The plaintiffs’ motion was denied and that of the defendant was granted. The trial court signed a take-nothing summary judgment with prejudice on March 10, 1976. Plaintiffs have timely perfected an appeal from that judgment.

Two points of error are brought forward in this appeal. They read, as follows:

“POINT OF ERROR NUMBER ONE
The trial court erred in holding that the appellee was not liable as a matter of law for its failure to allow a discount for ad valorem taxes.
POINT OF ERROR NUMBER TWO
The trial court erred in holding that the appellee was not required, as a matter of law, to allow the discounts for advance payment of ad valorem taxes in accordance with the Texas General Law on the subject.”

Plaintiffs’ petition attempts to make this suit a class action on behalf of themselves and all other persons who have made or would have made advance payments of ad valorem taxes levied and assessed by defendant for the years 1973 and in years previous thereto. The petition denominates this suit to be an action for the recovery of money, and nothing more. In addition to other facts alleged in the petition, it was also alleged:

“10. Defendant did not allow to the plaintiffs a discount for advance payment of their ad valorem tax to the defendant in 1973 and in years previous thereto as required by Article VII, Section 6, of the City Charter of the City of Corpus Christi, and Article 7255b, Vernon’s Annotated Texas statutes, enacted pursuant to Article 8, Section 20, of the Constitution of the State of Texas.”

Defendant filed a plea to the jurisdiction on the ground that plaintiffs’ petition “alleged no amount in controversy nor prays for any relief which is sufficient to bring this action within the jurisdiction of the District Court”. Defendant leveled special exceptions at numerous allegations contained in the petition, including the allegations and conclusions which purport to make the suit a “class action”; defendant also asserted the four-year statute of limitations as a bar to the recovery of any money for any advance payments made pri- or to October 23, 1970. Defendant further denied, specially and generally, all allegations made in the petition. The record does not reveal that the trial court took any action with respect to the plea to the jurisdiction, the special exceptions, or the plea of limitations.

The judgment, from which the plaintiffs have appealed, in part, provides:

“ . . . the Court has considered Defendant’s Motion For Summary Judgment, the pleadings herein, the admissions of Defendant on file herein, the affidavits and exhibits on file herein, and the briefs and arguments of counsel, and is of the opinion that there is no material issue of fact to be decided in this cause and that Defendant is entitled to judgment against Plaintiffs as a matter of law.
THEREFORE, it is ORDERED that this cause be dismissed with prejudice, that Plaintiffs take nothing by this suit, and that all costs of Court be taxed against the Plaintiffs. . . .”

The critical question of whether the jurisdiction of the district court with respect to the subject matter of this suit is presented by the record. Plaintiffs’ petition does not allege any specific amount of money due either them or the class for whose benefit the suit is purportedly brought, nor is a recovery of any specific amount of money prayed for in the prayer. The plaintiffs, in addition to asking “that the defendant be required to allow discounts to advance and prompt payers of ad valorem taxes to the defendant as required by law”, also prayed “that judgment in the amount of monies equal to the discounts required by law and allowed to the plaintiffs and members of plaintiffs’ class for advance or prompt payment of ad valorem taxes paid to the defendant and wrongfully retained by it be rendered in favor of the plaintiffs and members of their class”.

Our Supreme Court, in Richardson v. First National Life Insurance Co., 419 S.W.2d 836 (Tex.Sup.1967), said:

“The general rule is that the allegations of the plaintiff’s petition must state facts which affirmatively show the jurisdiction of the court in which the action is brought. Brown v. Peters, 127 Tex. 300, 94 S.W.2d 129 (1936) ...”

The case of Brown v. Peters, cited by the Supreme Court, discussed in some detail the holdings in Campsey v. Brumley, 55 S.W.2d 810 (Tex.Comm’n App. 1932, holdings approved).

The Commission of Appeals, in Campsey v. Brumley, supra, held that plaintiff’s petition was insufficient to confer jurisdiction on the court, reversed the judgment and remanded the cause to the trial court. It was said on page 812 of the published opinion:

“ . . . It is settled that the petition must affirmatively show jurisdiction, and a judgment rendered by a court on a petition which fails to affirmatively plead facts bringing the case within its jurisdiction presents fundamental and reversible error. . . .”
******
“ . . .If the court has no jurisdiction of the subject-matter of the litigation, any judgment it may render is void.

The district court does not have jurisdiction of a suit to recover money only unless the amount of money sought to be recovered is more than $500.00. Tax.Const. art. V, § 8; Connor v. Collins, 378 S.W.2d 133 (Tex.Civ.App. — San Antonio 1964, writ dism’d).

Even though some of the allegations in plaintiffs’ petition would indicate that this is also a suit for a declaratory judgment, the bringing of such suit for declaratory judgment does not in any way change the law as to jurisdiction of Texas Courts. Plaintiffs, in order to invoke the jurisdiction of the district court, were required to allege that the amount of money in controversy was more than $500.00. Connor v. Collins, supra. Under the record here presented, it indisputably appears that the plaintiffs did not affirmatively allege facts which showed that the amount of money in controversy and sought to be recovered was in excess of $500.00. The district court did not have jurisdiction of the suit. The jurisdiction of the district court was challenged, as has been stated. Fundamental error is presented, and it was reversible error for the trial court to have rendered the judgment that it did render. The judgment must be reversed and the cause remanded under the authority of Campsey v. Brumley, supra.

Assuming, arguendo, that after indulging all reasonable intendments in favor of jurisdiction which we must do in doubtful cases under the rule laid down by our Supreme Court in Dwyer v. Bassett & Bassett, 63 Tex. 274 (1885), the record will not sustain the granting of summary judgment in favor of the defendant.

The burden was on the defendant, the movant in the summary judgment proceeding, to establish by summary judgment proof, as a matter of law, that there was no genuine issue of material fact as to at least one essential element of the plaintiffs’ cause of action, and that it was entitled to judgment as a matter of law. “Moore” Barger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.Sup.1972); Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970).

All doubts as to the existence of a genuine issue of material facts are to be resolved against the movant, and summary judgment is not to be granted to movant on default of the opposite party, but only on the merit of the summary judgment proof adduced by the movant. Swilley v. Hughes, 488 S.W.2d 64 (Tex.Sup.1972).

The only summary judgment proof offered by the defendant in support of its motion consisted of: 1) admissions by defendant a) that it is a municipal corporation incorporated under the home rule charter laws of this State; b) that plaintiffs, in 1973, did pay ad valorem taxes to the defendant more than 30 days in advance of January 31, 1974, when all unpaid ad valo-rem taxes for 1973 became delinquent; c) that the defendant did not allow plaintiffs or any other taxpayer in Corpus Christi a discount for advance payments of ad valo-rem taxes for the years 1970, 1971, 1972, and 1973; 2) an affidavit by the Assistant Tax Assessor-Collector for the City of Corpus Christi that set out the amount of ad valorem taxes assessed by the defendant against the plaintiffs for each of the years 1970-1975, and further stated:

“A discount for timely payment of taxes assessed by the City of Corpus Christi was allowed some time previous to 1956. In 1955 the discount allowed was 1% of the taxes assessed. For the tax year 1956 the discount was .discontinued, . . . ”

Plaintiffs, in substance, alleged that the defendant did not allow them and the members of their “class” a discount for advance payment of ad valorem taxes for the year 1973 “and in years previous thereto”, as required by Article 7255b and by “the City Charter of the City of Corpus Christi”. Defendant denied that allegation.

There is no summary judgment proof that the governing body of the City of Corpus Christi had not adopted the provisions of Tex.Rev.Civ.Stat.Ann. art. 7255b (1939) for any of the years ensuing from and after January 1,1956. The defendant’s summary judgment proof did not meet and overcome the plaintiffs’ allegations that the defendant did not allow them (and others) the discounts to which they were entitled by statute and the City Charter. Defendant’s motion for summary judgment must fail. See Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.Sup. 1970). Plaintiffs’ points are sustained.

The question of whether the allegations in plaintiffs’ petition are sufficient to constitute the suit a “class action” is not before us in this appeal. We express no opinion thereon.

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

REVERSED AND REMANDED.


author: BREWSTER, Justice.

text:
    H & R OILS, INC., et al., Appellants, v. PIONEER AMERICAN INSURANCE COMPANY et al., Appellees.
    No. 17762.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 17, 1976.
    Rehearing Denied Oct. 15, 1976.

      Roach & Robertson and James S. Robertson, Jr., Dallas, for appellant.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk and Sam J. Day, Fort Worth, for appellee, Pioneer American Ins. Co.
    Law Office of H. P. Smead, Jr., by Robert Anderson, Longview, for appellee, Richardson Prod. Corp. and A. H. Richardson, Jr.
   OPINION

BREWSTER, Justice.

This is an appeal by the defendants, Alex Hickey, d/b/a H & R Oil Company, and Mike Trant, from an order appointing a receiver and authorizing him to take charge of certain oil and gas leases and the equipment located on the premises covered by the leases, to collect the proceeds from the sale of the production from the leases, and to perform such other things as may be reasonably necessary to preserve and protect the property.

The suit was brought by Pioneer American Insurance Company against A. H. Richardson, Jr., Richardson Production Corporation, Alex Hickey, d/b/a H & R Oil Company, Mike Trant, and others whom it is not necessary to name in view of the fact that they are not involved in this appeal. The plaintiff alleged that for a valuable consideration paid by it to the defendants, A. H. Richardson, Jr., and Richardson Production Company, Richardson had executed and delivered to plaintiff several promissory notes on which there was a large balance past due and unpaid. Plaintiff also alleged that as security for the payment of the notes the makers of the notes executed and delivered to plaintiff a deed of trust and security agreement covering two oil and gas leases and all equipment and personal property located on said leases. Plaintiff alleged that their lien, by virtue of said instruments, is superior to any claim that Trant and Hickey have to the leases and equipment, and that Trant and Hickey have wrongfully ousted A. H. Richardson, Jr., and Richardson Production Corporation from possession of the two oil and gas leases and are producing oil and gas from such leases and are using the equipment located on the leases and are thus reducing the value of the security.

Plaintiff sued Richardson and Richardson Production Company for judgment for its debt, for foreclosure of its liens on the oil and gas leases and personal property and equipment located thereon and for the appointment of the receiver to operate the leases, and hold the property during pend-ency of the suit.

After the suit was filed the defendants, Richardson Production Corporation and A. H. Richardson, Jr., also filed a motion asking that the receiver be appointed, alleging therein that they had been wrongfully ousted from possession of the two oil and gas leases involved and from possession of their equipment located thereon and that Hickey and Trant are producing oil from the leases, thus diminishing the value of the leases and are not accounting to them for such production.

Following a hearing on both applications the trial court rendered the order appointing the receiver that is being appealed from here.

We reverse and vacate the receivership.

In their 7th point of error the appellants urge that the trial court abused its discretion as a matter of law in appointing the receiver on Richardson’s application because Richardson’s pleadings and the evidence at the hearing failed to establish a probable right of Richardson succeeding at the final trial.

In their 5th point of error appellants urge that the trial court erred in holding that the appointment of a receiver was necessary to protect the rights of Pioneer American Insurance Company because the pleadings and evidence establish that Pioneer American’s only claim or security extended to the equipment which they were free to remove at any time, with the exception of the casing in the producing wells.

We sustain both of those points of error.

We will refer herein to Pioneer American Insurance Company as Pioneer American and to A. H. Richardson, Jr., and Richardson Production Corporation as Richardson.

The undisputed evidence that the receivership hearing showed that since the early 1960s Richardson had owned fractional interests in an oil and gas lease referred to herein as the E. W. Clemens 215.7 acre lease and in another oil and gas lease known as the Alma Smith lease. Both leases were located in Runnels County, Texas. Richardson was also the operator of those leases. Richardson borrowed money from Pioneer American and to secure the payment of the note gave Pioneer American a deed of trust and security agreement covering his interest in both of the oil and gas leases and covering the interest of Richardson in all personalty and equipment that was located on those leases. The instruments referred to contained an assignment to the Insurance Company of the proceeds of the sale of Richardson’s part of the oil and gas production from said leases. These proceeds were to be applied by Pioneer American in payment of Richardson’s note referred to. At the time of the receivership hearing there was past due and unpaid on Richardson’s note about $85,000.00.

The Alma Smith lease between Richardson and his associates and the landowner provided that that lease would expire if the production of oil or gas ceased, for any cause, and drilling or reworking operations were not commenced within 60 days thereafter. The E. W. Clemens 215.7 acre lease involved contained a provision to the same effect.

The undisputed evidence at the receivership hearing showed that Richardson had been producing oil from the leases involved since the early 1960s and that in 1974 Richardson became ill, that he could not attend to his business, and that production on both leases completely ceased for a period of more than 60 days. When this case was argued before this Court all parties admitted that in 1974 production on both leases ceased for more than 60 days and that reworking operations were not commenced within that 60 day period.

After the expiration of such 60 day period during which reworking operations were not commenced the appellants, Trant and Hickey, acquired a new oil and gas lease from the landowner covering the Alma Smith lease that is involved here. This occurred on August 20, 1974.

On September 20,1974, Trant and Hickey also acquired from the landowner a new lease on the tract that had "been covered by Richardson’s E. W. Clemens lease above referred to. For more than 60 days before the date of this lease to Trant and Hickey there had been no production from the Clemens lease and no reworking operations had begun.

Under the express provisions of Richardson’s leases with the landowners his Alma Smith lease and his E. W. Clemens 215.7 acre lease both terminated in 1974 when he allowed both of such leases to cease producing oil and gas for a period of more than 60 days and when he did not begin reworking operations on the wells of either of said leases during the 60 day period. At the end of such 60 day period Richardson no longer owned any interest whatever in the realty involved in the two oil and gas leases or in the minerals thereunder. Eubank v. Twin Mountain Oil Corporation, 406 S.W.2d 789 (Tex.Civ.App., Eastland 1966, writ ref., n. r. e.), and Francis v. Pritchett, 278 S.W.2d 288 (Tex.Civ.App., El Paso 1955, writ ref.).

The liens held by Pioneer American on the two oil and gas leases involved only covered the interests of Richardson in said leases. When Richardson’s rights in the oil and gas leases terminated because of the cessation of production, Pioneer American’s lien rights in the property also terminated because the lien rights that were conveyed to Pioneer American were subject to the termination provisions contained in the leases.

It is thus apparent from the undisputed evidence that at the time of the receivership hearing neither Richardson nor Pioneer American owned any interest in the real property (oil and gas leases) that a receiver was appointed over.

The only grounds pleaded and relied on at the hearing by appellees that they claimed entitled them to a receiver over the oil wells involved were that Richardson owned the oil and gas leases on the property and that Pioneer American owned liens on the interest of Richardson in said oil and gas leases, and that appellants had wrongfully ousted them from possession thereof. The undisputed evidence showed that the rights of both Richardson and Pioneer American in the realty involved had terminated prior to the receivership hearing because the two oil and gas leases had terminated as is demonstrated above.

It was therefore error for the trial court to appoint the receiver to take charge of the realty in this case (the oil and gas leases) because one element that the applicants had to prove at the hearing before either would be entitled to the appointment of a receiver over the property was that such applicants, or at least one of them, owned an interest in the property that the receiver was to take charge of. Wadsworth v. Cole, 265 S.W.2d 628 (Tex.Civ.App., El Paso 1954, no writ hist.); Pelton v. First National Bank of Angleton, 400 S.W.2d 398 (Tex.Civ.App., Houston 1966, no writ hist.); and for other such cases see 49 Tex.Jur.2d 28, Receivers, Sec. 13.

This they did not do because the undisputed evidence showed that neither applicant owned an interest in the real property involved at the time of the hearing and that neither applicant could probably establish an interest in the real property involved at a trial on the merits.

We also hold that the trial court abused its discretion in appointing the receiver to take charge of the personal property and equipment located on the leases. The evidence showed that Richardson only owned a fractional interest in said personalty and equipment and that Pioneer American’s lien only covered the interest of Richardson in such property. When the receiver was applied for, the appellants filed in the case a disclaimer by which they disclaimed any interest in the personal property and equipment claimed by appellees, except (a) the casing in the Alma Smith A-l and A-3 wells and the E. W. Clemens D-l well; (b) any bottom hole pumps of defendants that are now in those wells; and (c) the packer located in the Alma Smith A-3 well. In the disclaimer appellants granted appellees the right to enter the realty and remove the personalty involved with the exception of the items referred to. Appellants also offered to keep and pay appellees for their interests in the casing in the three wells, any bottom hole pumps of defendants in said wells, and the packer in the Alma Smith A-3 well.

The following is from the opinion in Eubank v. Twin Mountain Oil Corporation, 406 S.W.2d 789 at page 792 (Tex.Civ.App., Eastland 1966, writ ref., n. r. e.):

“The court correctly held that under the facts and circumstances in evidence appellant, even though the owner of the casing involved, was in equity not entitled to remove it from the wells. The owner of casing under such circumstances is entitled to be compensated for the reasonable value thereof. 4 Williams Oil and Gas Law page 213, et seq. The court found upon sufficient evidence that $1800.00 would reasonably compensate Eubank for the removable casing. The judgment for Eubank was based upon this theory and measure of damages. We overrule appellant’s points urging, in effect, that such action of the court was error.

“ . . . Appellant was the owner of oil and gas leases on the land. The wells were drilled in accordance with such leases and oil was produced from the wells. When appellant ceased to produce oil from the premises his leases terminated. The wells are a part of the real estate and upon the termination of the leases the wells became the property of the lessors and appellant had no further title thereto and has no right to recover the cost of drilling such wells.”

A case holding to the same effect is Patton v. Rogers, 417 S.W.2d 470 (Tex.Civ. App., San Antonio 1967, writ ref., n. r. e.).

For some reason appellees refused to accept the offer to remove the personalty and equipment referred to.

With this state of facts existing, and with the law being as it is announced in the Eubanks and Patton cases, supra, we hold that the trial court abused its discretion in appointing a receiver over the personalty and equipment that are involved in this case because it was not reasonably necessary in order to preserve such personal property and equipment that a receiver be appointed over it.

The following is from 49 Tex.Jur.2d 27, Receivers, Sec. 12: “A receiver may be appointed only when receivership is shown to be reasonably necessary for preservation of property involved in litigation, and for protection of the rights of persons having claims against it.”

The appellants urge additional points of error all of which we have considered and hereby overrule. We will not add to the length of this opinion by discussing them because the points that we have already discussed dispose of the appeal.

It is of interest that the transcript on this appeal does not show that the applicants for the receiver were required to or did file in this case the applicant’s bond that is required by Rule 695a, T.R.C.P. The order appointing the receiver does not fix the amount of such a bond. Rule 695a provides that, “No receiver shall be appointed with authority to take charge of property until the party applying therefor has filed with the clerk of the court a good bond . . . payable to the defendant in the amount fixed by the court, conditioned for the payment of all damages and cost in such suit, in case it should be decided that such receiver was wrongfully appointed to take charge of such property. . . ”

The cases hold that posting of the bond required by Rule 695a is essential. Pfeiffer v. Pfeiffer, 394 S.W.2d 679 (Tex.Civ.App., Houston 1965, writ dism.); Greenland v. Pryor, 360 S.W.2d 423 (Tex.Civ.App., San Antonio 1962, no writ hist.); and O’Connor v. O’Connor, 320 S.W.2d 384 (Tex.Civ.App., Dallas 1959, writ dism.).

It is not necessary for us to determine the legal effect of this apparent omission in view of the disposition we make of this case.

The trial court’s order appointing a receiver is hereby vacated.

Costs of the receivership and of this appeal are taxed against the appellees.


author: McDONALD, Chief Justice.

text:
    CHEMICAL EXPRESS CARRIERS, INC., Appellant, v. Dorothy Cook NASH, Appellee.
    No. 5612.
    Court of Civil Appeals of Texas, Waco.
    Sept. 23, 1976.
    Jack B. Sides, Jr., Dallas, for appellant.

      Don Hinds, Dallas, Warwick H. Jenkins, Waxahachie, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Chemical Express from judgment against it for $78,-800. in favor of plaintiff Nash, in a negligence action based on a collision between defendant’s truck and plaintiff’s automobile.

Plaintiff sued defendant alleging that on December 1, 1973 at approximately 8:55 A.M. defendant’s truck ran through a red light at an intersection in Waxahachie, Texas striking plaintiff’s automobile which was proceeding through the intersection on a green light; that defendant was guilty of a number of acts of negligence proximately causing injuries to plaintiff’s head, neck, all extremities, right shoulder and low back; that plaintiff required back surgery; and suffered damages totalling $250,000.

Defendant answered by general denial and alleged plaintiff guilty of acts of contributory negligence.

Trial was to a jury which found defendant’s driver negligent, in failing to keep a proper lookout, in driving at a greater rate of speed than a person using ordinary care would have driven, in failing to make application of the brakes that a person using ordinary care would have made, and in entering the intersection when the traffic signal facing it was red; and that such acts of negligence were proximate causes of the occurrence. The jury further found plaintiff did not fail to keep a proper lookout; and fixed plaintiff’s damages resulting from the occurrence at; $5000. for physical pain and mental anguish in the past; $35,-000. for physical pain and mental anguish in the future; $9000. for loss of earnings in the past; $26,000. for loss of earning capacity in the future; and $3800. for reasonable and necessary medical and hospital expenses for treatment of her injuries.

The trial court rendered judgment on the verdict for plaintiff for $78,800.

Defendant appeals on 6 points contending the trial court erred:

1) In refusing to submit an issue as to whether plaintiff had sustained injury in the collision.

2) In refusing to submit defendant’s requested issues as to whether plaintiff failed to make brake application as a person using ordinary care, and whether such failure was a proximate cause of the collision.

3) In sustaining objection to defendant’s attorney arguing to the jury that plaintiff had failed to bring in person as a witness any of her many doctors, particularly in failing to bring Dr. Jones, either in person or by deposition, even though shown by the evidence available to testify.

4) In failing to grant a new trial because the jury’s answer that plaintiff did not fail to keep a proper lookout is incorrect as a matter of law, or is against the great weight and preponderance of the evidence.

5) In not granting a new trial or ordering a remittitur, because the verdict is excessive in the amount of $30,000. for future pain and mental anguish, and $20,000. for future loss of earnings.

Contention 1 complains of the trial court’s refusal to submit an issue as to whether plaintiff had sustained injury in the collision.

When there is no question but that injuries were sustained, conventional issues on damages and accompanying instructions permits the jury in arriving at amount of damages, to make an incidental determination of the nature and extent of injuries suffered; but when existence of injury is controverted in the evidence, the defendant is entitled to a submission of an issue as to whether plaintiff was injured [in the collision]. Texas & Pacific Ry. Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528.

It is uncontroverted in the evidence that plaintiff was injured. Defendant’s truck ran through a red light at an intersection striking plaintiff’s automobile completely turning it around and totally destroying it; an ambulance was called which carried plaintiff to Dr. Jones’ clinic; Dr. Jones treated plaintiff for injuries to her face, head, nose, shoulders and back; plaintiff saw Dr. Kelly 2 days later who placed her in the hospital for some 12 days; Dr. Kelly testified that in all reasonable medical probability her injuries were produced by the automobile collision. There was no evidence to the contrary, and the record reflects defendant tried the case, not on the theory plaintiff was not injured, but that she was not injured as severely as she claimed.

Contention 1 is overruled.

Contention 2 asserts the trial court erred in refusing submission of defendant’s requested issues as to whether plaintiff failed to make proper brake application, and whether such was a proximate cause of her injuries.

Plaintiff entered the intersection when the signal light was green for her, and she saw defendant’s truck was about a half block away. Defendant’s truck ran through a red light facing it and struck plaintiff. The jury found defendant’s truck entered the intersection on a red light, was guilty of improper lookout, speeding, and not applying his brakes.

There is no evidence plaintiff saw defendant running the red light in time to apply her brakes and avoid the collision. The trial court did not err in refusing the issues.

Contention 2 is overruled.

Contention 3 asserts the trial court erred in sustaining plaintiff’s objection to defendant’s attorney’s argument to the jury that plaintiff had failed to bring in person as a witness any of her many doctors who treated her.

All plaintiff’s doctors were present as witnesses in the case by deposition, except Dr. Jones.

Defendant has not preserved by bill of exceptions or otherwise what argument it would have made had the court not ruled against it. Pritchett v. Highway Ins. Unerwriters, 158 Tex. 116, 309 S.W.2d 46; Southern Pacific Co. v. State of Texas, CCA, NWH, 438 S.W.2d 413.

Moreover, we think the matter harmless under Rule 434 TRCP.

Contention 3 is overruled.

Contention 4 asserts the jury’s answer that plaintiff did not fail to keep a proper lookout is incorrect as a matter of law, or is against the great weight of the evidence.

Plaintiff testified that after stopping at the light, looking to her front, to her right and to her left, before entering the intersection [on a green light] she saw the truck coming about a half block away, and after she was in the intersection she heard a noise and saw the truck, but at that time she realized she would be hit. The truck ran its red light to enter the intersection. The evidence is ample to sustain the jury’s finding, and it is not erroneous as a matter of law.

Contention 4 is overruled.

Contention 5 asserts the verdict excessive, and that the trial court erred in not granting a new trial or ordering a $50,000. remittitur.

As noted the jury fixed plaintiff’s damages: $5000. for past pain and anguish; $35,000. for future pain and anguish; $9000. for past earnings loss; $26,000. for future earnings loss; and $3800. for medical expenses.

Defendant asserts the $35,000. for future pain and anguish excessive by $30,000. and the $26,000. for future earnings loss excessive by $20,000.

Plaintiff was 44 years old at time of trial. Dr. Acosta testified he removed a completely extruded disc; that on July 22, 1975 she was not able to work; that on October 9, 1975 she could not perform the usual tasks of a workman working in a clothing manufacturing plant; that her disability was 30%; and that she would have to live with pain. Plaintiff has a life expectancy of 36.7 years; was in good health prior to the accident; was earning $100. per week. Since her injury she has not been able to work, and has been in pain.

The verdict is not excessive.

Contention 5 is overruled.

AFFIRMED.