text:
    Bertie England COOK, a widow and Travis England Cook, Appellants, v. KLEBERG COUNTY (Self-Insured) and Aetna Insurance Company, Appellees.
    No. 1385.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 13, 1979.

      Sally R. Farris, Harris, Cook, Browning & Barker, Corpus Christi, for appellants.
    Ronald B. Brin, Maddin, White & Brin, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This is an appeal in a workman’s compensation case from a take nothing judgment against the plaintiffs. Appellants contend that the trial court erred in its ruling by holding that the insurance company’s attorney had both the statutory and contractual authority to bring this suit. We affirm.

A fair summary of the pertinent facts is as follows. Appellee Kleberg County instituted an insurance program as a political subdivision employer, authorized under Tex. Rev.Civ.Stat.Ann. art. 8309h (1973), to provide workmen’s compensation insurance for its employees. Kleberg County and the Texas Association of Counties entered into a contract providing for an insurance policy which would cover its employees, of which Mrs. Cook’s deceased husband was one. The servicing contractor for the insurance fund was Aetna Insurance Company.

Appellants Bertie England Cook and her son, Travis England Cook, received a favorable award from the Texas Industrial Accident Board, which was challenged by the appellees Kleberg County and Aetna on an appeal to the 28th District Court of Kleberg County. Appellants thereafter filed a pretrial Motion to Show Authority under Rule 12, T.R.C.P. The appellants have brought forward a statement of facts regarding the Rule 12 hearing, but no order by the trial court in response thereof. At the trial there was a realignment of the parties, thus making appellants Cook the plaintiffs in the cause of action. The trial on the merits was before a jury. Based upon the jury’s verdict, the trial court rendered judgment that the Cooks take nothing. Appellants Cook have not brought forward a statement of facts of that proceeding in their appeal. Nor have they brought forward an agreed statement under Rule 378, T.R.C.P.

This Court has consistently applied the presumption that in the absence of a complete record on appeal, the trial court is deemed to have found evidence to support its holding on every fact issue. American National Insurance Company v. Briones, 570 S.W.2d 574 (Tex.Civ.App.—Corpus Christi 1978, no writ). Only in those cases in which fundamental error is presented will a reviewing court reverse a trial court’s judgment in the absence of a statement of facts. White v. Corpus Christi Little Miss. Kick. Ass’n, 526 S.W.2d 766 (Tex.Civ.App.—Corpus Christi 1975, no writ). In this case no fundamental error has been presented, so the judgment must be affirmed.

Appellants’ points of error attack the judgment on the grounds that the appellee Aetna lacked statutory and contractual authority to bring suit. And we will discuss these points.

The crux of appellants’ argument is that the appellee Aetna had no authority to bring suit for Kleberg County against the Cooks. The appellants originally raised this issue in a Rule 12 Motion to Show Authority, T.R.C.P. In the absence of a complete statement of facts, we must presume that the evidence heard at the trial supported the judgment. That is, the trial judge is presumed to have heard evidence and found that the appellee, Aetna Insurance Company, did have the authority to bring suit. It is the burden of the appellants to provide the reviewing court with a record which reveals reversible error if any. White v. Corpus Christi Little Miss. Kick. Ass’n, supra; Englander Company v. Kennedy, 428 S.W.2d 806 (Tex.Sup.1968). This the appellants have not done.

Even so the appellants contend that Aetna had neither contractual nor statutory authority to bring suit in the district court. Regarding workmen’s compensation benefits to its employees, a political subdivision may either provide insurance for itself or may enter into interlocal agreements. Tex.Rev.Civ.Stat.Ann. art. 8309h, § 2(a) (1973); Tex.Att’y Gen.Op.No. H-.-338 (1974). And clearly Article 8309h gives to a political subdivision the right to acquire legal counsel to represent any and all of its interests in relation to workmen’s compensation benefits. Tex.Rev.Civ.Stat.Ann. art. 8309h, § 8 (1973). Consequently, Aetna had statutory authority to bring suit.

Kleberg County, of which Mrs. Cook’s deceased husband was an employee, exercised the authority granted by Article 8309h and entered into a contractual agreement with the Texas Association of Counties whereby Aetna became the servicing contractor. Paragraphs 11 and 15 of that contract clearly gave Aetna the right to defend and to prosecute “any litigation” relative to employee claims. Therefore, Aetna had contractual authority to bring suit. Appellants’ points 1 and 2 are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Rafael CHAPA, Appellant, v. Jose HERNANDEZ, Appellee.
    No. 1439.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 13, 1979.

      Oscar Palacios, Pharr, for appellant.
    Garcia & Garcia, Edinburg, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a guardianship case between a minor’s paternal and maternal grandfathers following an auto accident which killed both of the minor’s parents. The trial court rendered judgment favorable to the maternal grandfather. We affirm.

The minor child, Jose Luis Chapa, Jr. was bom to Jose Luis Chapa, Sr. and Juana Hernandez Chapa on October 13,1977. The fatal car accident occurred January 15, 1978. On January 17,1978, appellant Rafael Chapa, the minor’s paternal grandfather, filed an application for guardianship of the minor’s person and estate in the County Court at Law of Hidalgo County. On January 30, 1978, the court appointed an attorney ad litem for the minor. Thereafter, on February 2, 1978, the minor’s maternal grandfather, appellee herein, Jose Hernandez, filed a contest against Rafael Chapa’s application and claimed that he should be appointed guardian of the minor’s person and estate. The court consolidated the applications on February 7, 1978, and authorized the attorney ad litem to collect the minor’s estate. Hernandez, filed an amended application for appointment on June 21, 1978.

The case was tried before a jury beginning on June 29, 1978. After all parties had closed but before the cause had been submitted to the jury, Chapa moved for an instructed verdict on the ground that under Tex.Prob.Code Ann. §§ 114, 110 (Supp. 1978) Hernandez had failed to prove that he was not indebted to the estate of the child. See Section 110(e). The court overruled this motion. Chapa then objected to the submission of special issues for the same reasons set forth in his motion for instructed verdict. These objections were overruled. The case was then submitted to the jury on four special issues. In response, the jury refused to find from a preponderance of the evidence that the minor’s best interests would be served by appointing Chapa guardian of the minor’s person (1) or estate (3); but the jury did find from a preponderance of the evidence that the minor’s best interests would be served by appointing Hernandez guardian of the minor’s person (2) and estate (4).

Hernandez moved for judgment on the verdict and Chapa moved for judgment notwithstanding the verdict alleging in general terms that Hernandez had wholly failed to meet his burden of proof with respect to Sections 114 and 110 of the Probate Code. Chapa’s motion for judgment notwithstanding the verdict was overruled and judgment was entered for Hernandez. Chapa then filed a motion for new trial again alleging broadly, as in the motion for judgment notwithstanding the verdict, that Hernandez failed to prove his case under Sections 114 and 110 and he also alleged error by the trial court in the admission of certain evidence over Chapa’s objections.

Appellant’s points 1 through 4 contend the trial court erred in overruling his motion for instructed verdict, his objections to special issues, and his motion for judgment notwithstanding the verdict under Sections 114 and 110. We disagree.

Section 114 provides in pertinent parts as follows:

“Section 114. Facts Which Must Be Proved
Before appointing a guardian, the court must find:
(a) That the person for whom a guardian is to be appointed is . . .a minor
(b) That the court has venue of the case.
(c) That the person to be appointed guardian is not disqualified to act as such and is entitled to be appointed; or, in case no person who is entitled to appointment applies for it, that the person appointed is a proper person to act as such guardian.
(d) That the rights of persons or property will be protected by the appointment of a guardian.”

Section 110 provides:

Section 110. Persons Disqualified to Serve as Guardians
“The following persons shall not be appointed guardians:
(a) Minors.
(b) Persons whose conduct is notoriously bad.
(c) Incompetents.
(d) Those who are themselves parties, or whose father or mother is a party to a lawsuit on the result of which the welfare of the person for whom, or for whose estate, a guardian is to be appointed, may depend.
(e) Those who are indebted to the person for whom or for whose estate a guardian is to be appointed, unless they pay the debt prior to the appointment, or who are asserting any claim to any property, real or personal, adverse to the person for whom, or for whose estate, the appointment is sought.
(f) [Deleted.]
(g) Those who by reason of inexperience or lack of education, or for other good reason, are shown to be incapable of properly and prudently managing and controlling the ward or his estate.”

In these four points appellant Chapa presupposes that appellee Hernandez, had the burden of proof to negate any disqualification (as set out in Section 110) on his part. But the burden to prove disqualification of a guardian, here Hernandez, is upon the challenger, here Chapa. Ramirez v. Garcia de Bretado, 547 S.W.2d 717, 718 (Tex.Civ.App.—El Paso 1977, no writ). On Hernandez’ disqualification, if any there was, Cha-pa neither offered proof nor requested the submission of any special issue, both of which he was required to do to have us review the disqualification matter. Rules 277 and 279, T.R.C.P.; see Guardianship of Henson, 551 S.W.2d 136 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.).

We will further demonstrate why appellant’s points 1 through 4 are without merit. Section 109 provides as follows:

“Persons Qualified to Serve as Guardians
******
(b) Guardians of Orphans. These rules shall govern as to orphans who are minors:
******
(2) If there be more than one ascendant in the same degree in the direct line, they are equally entitled. The guardianship shall be given to one or the other, according to circumstances, only the best interest of the orphan being considered. * * ”

Here, in that Chapa and Hernandez were both grandfathers (ascendants of the same degree) of the minor child who was an orphan because both of his parents were deceased, each was presumed to be qualified to serve as the minor’s guardian. Section 109(b)(2), supra. So the only issue remaining to be resolved is which grandfather should be appointed guardian when only the best interest of the minor is considered. That issue was submitted to the jury and the jury answered favorably to Hernandez. Appellant’s points 1 through 4 are overruled.

Appellant’s point 5 contends that there was insufficient evidence to support the jury’s findings that the best interests of the minor’s person and estate would be served by appointing Hernandez as guardian. We disagree.

The evidence is replete with the redeeming qualities of Mr. Hernandez. His children and wife testified that he was a good father and able provider, that he loved his family, and that he had given them all he could. It was shown that he had raised several children of his own, that he had one child that was only four years older than the minor and that he was relatively young himself. There was some evidence that Hernandez liked to drink beer, but it was conflicting as to how often and how much. We think the evidence was sufficient to support the jury’s decision. Appellant’s point 5 is overruled.

Appellant’s 6th point contends the trial court erred in allowing appellee to impeach his own witness.

Hernandez called Juan Chapa, one of the appellant’s sons, to the stand and asked him questions solely dealing with his father’s fitness to serve as the minor’s guardian. On cross-examination the appellant asked Juan about Hernandez’ drinking habits. Hernandez then cross-examined Juan, over objection, concerning this matter.

We find no error in Hernandez cross-examining Juan concerning his testimony about Hernandez’ drinking habits in that he became appellant Chapa’s witness for purposes of the new matter elicited. See Fenner v. American Surety Co. of New York, 156 S.W.2d 279 (Tex.Civ.App.—Waco 1941, writ ref’d w. o. m.); see also McCormick and Ray, Texas Law of Evidence §§ 638, 641 (2nd ed. 1956); Biddle v. National Old Line Insurance Company, 513 S.W.2d 135, 139 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.). Appellant’s point 6 is overruled.

Appellant’s point 7 contends the trial court erroneously admitted the written report from the psychiatrist that examined Mrs. Hernandez several months prior to the trial. The purpose of her visit to the psychiatrist was to show that she was now mentally capable of raising the minor even though she had been committed to a mental institution in 1962 for a period of four months. In addition to the psychiatrist’s opinion that Mrs. Hernandez was mentally well, his written report stated in effect that the Hernandez children had not had problems with drugs or the law, that Mrs. Hernandez was in good mental condition following her commitment to a mental home for four months in 1962, and that Mrs. Hernandez’ mental stability was reflected by her productive healthy family. Even if all of this evidence was erroneously admitted, a reversal of this case would not be required in that the record as a whole does not afford a reasonable belief that such evidence would have caused the rendition of an improper judgment. Rule 434, T.R.C.P.; Ins. Co. of North America v. Asarco, Inc., 562 S.W.2d 557, 562 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.). The record is replete with evidence that the Hernandez household is a healthy productive, quiet, peaceful household, with a mentally well adjusted mother. The record also indicates that the Hernandez children do not use drugs, that they attend school and that they have never run away from home. Therefore, looking at all the evidence and that mentioned above, we cannot say that even if the disputed evidence was erroneously admitted that it probably caused the rendition of an improper judgment. Appellant’s point 7 is overruled.

The judgment of the trial court is affirmed.

      . All statutory references hereafter will refer to the Probate Code unless otherwise indicated.


text:
    The PUBLIC UTILITIES BOARD OF the CITY OF BROWNSVILLE, Appellant, v. CENTRAL POWER & LIGHT COMPANY and Magic Valley Electric Cooperative, Inc., Appellees.
    No. 1440.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 13, 1979.

      John A. Heller, Russell S. Johnson, Saw-telle, Goode, Davidson & Troilo, San Antonio, for appellant.
    James F. McKibben, Jr., Dyer & Redford, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This appeal arose from a territorial dispute between three utility systems all of which were retail suppliers of electrical energy. Plaintiffs, Central Power and Light Company (CPL) and Magic Valley Electric Cooperative, Inc. (MVEC), sought and were granted a temporary injunction preventing the Public Utilities Board of the City of Brownsville (PUB) from “extending, constructing or erecting any electrical facilities or furnishing any electrical service” to two residential subdivisions located near, but outside of, the north limits of the city of Brownsville. PUB appeals. We affirm.

PUB attacks the granting of the temporary injunction by the trial court on these grounds: lack of jurisdiction of the trial court; lack of justiciable interest of the petitioners CPL and MVEC; absence of the Attorney General as an indispensable party; failure of the petitioners to exhaust their administrative remedies; and abuse of discretion by the trial court.

In 1975, the Public Utility Regulatory Act (PURA) was enacted and codified as Tex.Rev.Civ.Stat.Ann. art. 1446c (Supp. 1978). Under the PURA the Public Utility Commission (Commission) was established. Section 2 thereof sets out the purpose of the PURA as an Act, among other things, to establish a comprehensive system which is adequate to the task of regulating public utilities as defined by the Act. The effect of the enactment of the PURA upon the parties here underlies their dispute.

Soon after the PURA was enacted in 1975, the Commission asked all utilities in Texas to meet and decide which areas they would claim for certificates of convenience and necessity (authority to provide service). Compare Southwestern Public Service Company v. Public Utility Commission, 578 S.W.2d 507, 509 (Tex.Civ.App.—Austin 1979, writ ref’d n. r. e.). The evidence reflects that the meetings involved all aspects of negotiation. For example, one utility might give up a particular area or right in return for another area or right.

As a result of these meetings, appellees CPL and MVEC and appellant (PUB) agreed that all potential customers within the city limits of Brownsville would be served by the PUB. They also agreed that in most, but not all, cases property to the north of the city limits would be dually certificated to CPL and MVEC. These certification agreements were reflected by lines drawn on a large map of Texas and several county wide maps, including a map of Cameron County. The Commission then entered a certification order (entitled Docket No. 29), which adopted the map of Cameron County as agreed on by appellees and appellant. The agreement as to exactly where PUB’s service would end and CPL’s and MVEC’s would begin to the north of the Brownsville city limits was unclear, however, in that the only memorial of their agreement and the Commission’s order was the above mentioned county map with a scale of one inch to a mile, and the dividing lines were drawn with a wide felt marker pencil. Consequently, the parties in the present case all assert the right to provide service to the area within the width of the marker line.

Sometime in late July or early August of 1978 the PUB started setting its service poles into a new housing development immediately to the north of the Brownsville city limits. In doing so, the PUB removed one MVEC pole and disrupted service to some of its customers.

As a result, on August 17, 1978, CPL and MVEC brought this action in the 197th District Court of Cameron County seeking a temporary restraining order, temporary injunction and permanent injunction to enjoin the PUB from extending its service poles and lines into an area dually certificated to CPL and MVEC under the PURA. There is no copy of a temporary restraining order in the record, but apparently one was issued.

Thereafter, on August 21, 1978, CPL and MVEC filed a complaint against the PUB with the Commission alleging the same wrongdoing that was alleged in the district court and asked that the Commission issue a cease and desist order against the PUB, similar to a cease and desist order the Commission had previously issued against the PUB in Docket No. 533 of the Commission. Evidently, Docket No. 533 involved a similar dispute between the PUB and MVEC regarding other land just outside the Brownsville city limits. Following the August 21 filing, the Commission ordered that a hearing be held on August 31, 1978, to “take evidence on the allegations and consider interim relief, if necessary.” Soon thereafter, the Commission continued the hearing to September 7, 1978, because the PUB had not received adequate notice of the first hearing. The PUB then filed a motion to dismiss the action before the Commission alleging that the Commission lacked jurisdiction to enforce its orders against municipally owned utilities, citing Sections 3(c), 3(c)(4), and 71. In short, it contended that it was not a “public utility” and that the Commission had no jurisdiction over the subject matter of the suit or relief requested. The PUB also defensively asserted that it possessed “grandfather rights” pursuant to Commission Rule 052.-02.05.056(b)(6)(B) to serve part of the disputed area because it was serving that area prior to September 1, 1975.

On September 7 and 8, 1978, the parties herein participated in a two day hearing before the Commission concerning the issues addressed in this case; that is, what area was certificated to the PUB following the negotiations. Or, in other words, what was the agreement of the utilities as manifested by the map and what part did the grandfathering rule play in this agreement. The Commission’s hearing examiner then took the matter under advisement.

On September 15, 1978, the parties appeared in the district court (trial court here) for the instant temporary injunction hearing. The court heard evidence on the same issues which were before the Commission and granted relief to CPL and MVEC temporarily enjoining the PUB from extending any further service to the areas to the north of the Brownsville city limits other than the area which the utilities apparently agreed would be governed by their understanding of the grandfather rule.

No findings of fact or conclusions of law were filed. Thus, the trial court judgment must be upheld on any legal theory supported by the record. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.Sup.1978).

Appellant PUB brings seven points of error. Points 2 and 3 contend the trial court erred in granting the temporary injunction in this case because CPL and MVEC lacked a justiciable interest in the litigation and because the State of Texas, through the Attorney General, was not joined as an indispensable party.

Appellant here contends that the petitioners are, in effect, attempting to protect the interests of the public in general, rather than their own private interest. In doing so, appellant contends that the petitioners have no greater right than a private citizen, who under the facts of this case, would not have a justiciable interest sufficient to bring this cause. Thus, appellant alleges that the Attorney General is the proper party to enforce this public right. We disagree.

One of the cases appellant cites in support of its argument is Southwestern Gas & Electric Co. v. City of Gilmer, Tex., 123 F.Supp. 11 (E.D.Tex.1954), aff’d 224 F.2d 794 (5th Cir. 1955). In Gilmer, the Court held that a utility serving the.city of Gil-mer, Texas, did not have a justiciable interest sufficient to bring suit to enjoin the Upsher Rural Electric Cooperative from providing electrical service to cooperative members within the city limits of Gilmer. Evidently, the Texas statute allowing the creation of rural cooperative companies stated that one of the purposes for which cooperatives could be organized under the act was the furnishing of electric energy to persons in rural as opposed to municipal areas. The Court's holding was based upon the idea that a utility may not seek injunc-tive relief against a competitor who is merely following a course of conduct which is ultra vires. Appellant claims that the facts in Gilmer are similar to those in the instant ease and that the court herein should have dismissed this case because the appellees lacked a justiciable interest.

On the contrary, though, the holding and the language of Gilmer supports the result in this case. More specifically, the Court in Gilmer distinguished between the acts of a corporation which are merely without authority and those acts which are illegal. The Court explained that the cooperative’s acts were ultra vires; i. e., without authority, but that there was no provision in the Texas law requiring either an individual or corporation to obtain a license or certificate of convenience for the sale and distribution of electricity within the limits of the city. Southwestern Gas & Electric Co. v. City of Gilmer, Tex., supra at 19. The Court then explained that the acts of the cooperative were not illegal in that Southwestern had no exclusive franchise to serve Gilmer and consequently none of its legal or equitable rights were being violated. Southwestern was only being damaged by lawful competition, although the competition was being conducted as an ultra vires act. The Court then concluded that the competition itself must be illegal in order for a competitor utility to have standing, or a justiciable interest, to seek injunctive relief against the illegal competition. In making this assertion the Court cited Frost v. Corporation Commission, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1929). See also Tugwell v. Eagle Pass Ferry Co., 74 Tex. 480, 13 S.W. 654 (1888); Missouri Pacific Truck Lines, Inc. v. Brown Express, Inc., 399 S.W.2d 430 (Tex.Civ.App.—Fort Worth 1966, writ ref’d n. r. e.); Beene v. Bryant, 201 S.W.2d 268, 272 (Tex.Civ.App.—Amarillo 1947, no writ); West Texas Utilities Co. v. Smith, 168 S.W.2d 665 (Tex.Civ.App.—Austin 1943, writ ref’d); Annot., 90 A.L.R.2d 7 (1963).

In the instant case the evidence indicates that the competition itself; i. e., operating without a certificate of convenience and necessity in an area already served by another utility with a certificate was illegal competition. See Section 50(2), which requires a retail public utility to obtain a certificate of public convenience and necessity. In accord with the above mentioned cases, we therefore hold that the appellees CPL and MVEC had a private justiciable interest in bringing this suit, and their interest was sufficient to bring the suit on their own accord without intervention of the Attorney General. Appellant’s points 2 and 3 are overruled.

Appellant’s points 1 and 4 contend that-the trial court was without jurisdiction because the Commission had primary jurisdiction of this dispute and that the appellees had not exhausted their administrative remedies, which they were required to do before bringing this action. We disagree.

Primary jurisdiction is the principle which determines whether the court or the agency should make the initial decision. Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 414 (1961), Simmons v. Danco, Inc., 563 S.W.2d 376, 378 (Tex.Civ.App.—Dallas 1978, writ ref’d n. r. e.) The principle is concerned with promoting proper relationships between courts and administrative agencies charged with particular regulatory duties. Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976). Primary jurisdiction should be distinguished, however, from the concept of exhaustion of administrative remedies. Exhaustion concerns at what stage a party may secure a review of administrative action. D & S Investments, Inc. v. Mouer, 521 S.W.2d 118, 120 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.). Thus, the issue of exhaustion of administrative remedies is not involved in this case because the issue herein does not concern when or at what stage the parties may secure a review of Commission action, but rather whether1 the Court or the Commission should make the initial decision as to temporary injunctive relief.

There are two principal arguments which support the theory of primary jurisdiction by the Commission, to wit: 1) that the Commission is staffed with experts trained in handling the complex problems presented, and 2) great benefit is to be derived from a uniform interpretation of the rules and regulations of an'administrative body, whereas different results might be reached under similar fact situations by various courts or juries. Gregg v. Delhi-Taylor Oil Corp., supra 344 S.W.2d at 415. In Kavanaugh v. Underwriters Life Ins. Co., 231 S.W.2d 753, 755 (Tex.Civ.App.—Waco 1950, writ ref’d) the court explained primary jurisdiction as follows:

“ ‘The doctrine of primary jurisdiction is that the courts cannot or will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is essential to comply with the purposes of the regulatory statute administered. The principle is derived from a consideration of the nature of the question and of the inquiry and the action required for its solution.’ ”

In applying the underlying theories of primary jurisdiction to the facts of this case, we must first determine exactly what question or inquiry the trial court had to answer. Simply stated, the court was first asked to make a determination of what the maps showed or in other words, what the utilities agreed would be the boundary lines of their service areas. It was undisputed that the signed maps were the only manifestation of the utilities agreement, and that these ambiguous maps were made a part of the actual Commission certification order. A subpart of this determination involved how the parties intended to incorporate, if at all, the language of Commission Rule 152.02.05.056(b)(6)(B) into their agreement. For example, were certain “grandfather rights” negotiated away for rights to other areas, or did the lines drawn take into account the “grandfather rights” at all, and if they did, what interpretation did the parties intend for the grandfather rights as incorporated into their agreement.

In short, the court was called upon to construe an agreement which had been adopted by the Commission. See Section 56. Construction of an agreement is not a problem which necessarily requires the expertise of the commission staff. Furthermore, the court’s interpretation of that agreement is not essential to uniform administration of the PURA’s rules. Corn-pare Sunset Express v. Gulf C. & S. F. Ry. Co., 154 S.W.2d 860, 862 (Tex.Civ.App.—Forth Worth 1941, writ ref'd w. o. m.). We recognize that an interpretation of the Rule, herein, had a bearing on the Court’s decision in determining the parties’ agreement, but this interpretation is not prece-dentially binding on the Commission, but must be limited to the facts of this case. The proper setting to construe the Rule, for purposes of uniformity, would involve a utility applying to the Commission for certification. After certification, the interpretation of the Rule will not necessarily control the Commission’s intention as to any particular certificate of convenience and necessity, unless so specified in its order. Consequently, we find that the determination to be made by the Court herein was inherently judicial in nature and that the primary jurisdiction principle does not apply unless the Commission has explicitly been given exclusive jurisdiction. See Gregg v. Delhi-Taylor Oil Corp., supra 344 S.W.2d at 415.

Secondly, the Court was called upon to interpret Section 50(2) of the PURA to determine whether the facts presented a probable right and a probable injury. We find the construction of a statute also to be an inherently judicial determination. Where questions are primarily judicial in nature, as in the present case, the courts are not ousted of their jurisdiction unless the legislature by valid statute has explicitly granted exclusive jurisdiction to the administrative body. Gregg v. Delhi-Taylor Oil Corp., supra.

Section 16 of the PURA discusses the jurisdiction of the Commission to interpret its orders and the Act. In reviewing Section 16, we note that the first sentence applies only to “public utilities”; i. e., utilities other than municipally owned utilities. See Section 3(c) and 3(c)(4); Pleitz and Little, Municipalities and the Public Utility Regulatory Act, 28 Baylor L.Rev. 977, 978 (1976). The second sentence of Section 16 does not refer to interpreting orders or the Act. The third sentence of that section states that the Commission may, call and hold hearings, and make findings and decisions with respect to administering the act, rules, orders and other Commission actions. This last sentence was obviously intended to give the Commission extensive judicial review of its orders and the Act. And, its orders include certificates of convenience and necessity. Section 3(p). We do not view this third sentence as explicitly conferring exclusive jurisdiction upon the Commission to interpret its orders of convenience and necessity or the Act, though. Thus, we find that the Commission did not have primary jurisdiction to decide the issues in this case.

Appellant also cites Section 17(e) and its provisions to support its position that the Commission has exclusive subject matter jurisdiction of these issues. Section 17(e) provides:

“The commission shall have exclusive original jurisdiction over electric, water, and sewer utility rates, operations, and services not within the incorporated limits of a municipality exercising exclusive original jurisdiction over those rates, operations, and services as provided in this Act.”

Section 17(a) provides:

“Subject to the limitations imposed in this Act and for the purpose of regulating rates, and services, so that such rates may be fair, just, and reasonable, and the services adequate and efficient, the governing body of each municipality shall have exclusive original jurisdiction over all electric, water, and sewer utility rates, operations, and services provided by an electric, water, and sewer utility within the city or town limits.” (Emphasis supplied).

It is not absolutely clear what is meant by exclusive original jurisdiction over electric rates, operations and services, but, since Section 16 speaks to the Commission in its judicial capacity it would seem to follow that Sections 17(a) and (e) would speak to the Commission’s jurisdiction in its legislative capacity, e. g., ratesetting. See State v. Southwestern Bell Tel. Co., 526 S.W.2d 526 (Tex.Sup.1975), Schenker v. City of San Antonio, 369 S.W.2d 626 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.). This construction is supported by the language in Section 17(a) which indicates that the provisions of Section 17 are concerned with the legislative function of regulating rather than the judicial function of interpretation and decision. Furthermore, if the “exclusive original jurisdiction” language referred to a judicial function an unintended result would evolve. For example, if a municipal utility were impinging upon an area certificated to a “public utility” inside the boundaries of a municipality, Section 17(a) (given a construction of judicial authorization) would appear to give the municipality itself the judicial power to decide the dispute between its municipal power company and the impinged upon public utility. Obviously, this was not intended. Therefore, we find that Section 17(e) does not confer on the Commission exclusive jurisdiction to decide disputes between a municipal utility and another utility.

Appellant also argues that the Commission possesses exclusive jurisdiction to temporarily enjoin municipal utilities from violating the provisions of Section 50(2). We have thoroughly reviewed all of the enforcement provisions of the PURA and have found no provision which indicates an intention to give the Commission exclusive enforcement powers over certification violations of municipal utilities under Section 50(2). Indeed, we find an absence of provisions which give the Commission any temporary injunctive power concerning the activities of municipal utilities (retail public utilities) under Section 50(2). See Sections 60, 71, and 83. Compare Pleitz and Little, Municipalities and the Public Utility Regulatory Act, 28 Baylor L.Rev. 977, 978,1125—1126 (1976). Thus, the trial court possessed at least concurrent jurisdiction with the Commission to hear the issues in this case. Appellant’s points 1 and 4 are overruled.

Appellant’s points 5 and 6 contend that appellees did not show a probable right and a probable injury in this case. Appellate review of an order granting or denying a temporary injunction is strictly limited to determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order. Davis v. Huey, supra 571 S.W.2d at 862. As to the right, we have already discussed the fact that the appellees possessed a justiciable interest in this case. As to a probable injury, we note that there was extended testimony by Lee Gandy, manager of MYEC, that any damages from encroaching on MVEC territory could not be ascertained with certainty. Therefore, we find no abuse of discretion. Missouri Pacific Truck Lines, Inc. v. Brown Express, Inc., 399 S.W.2d 430, 432 (Tex.Civ.App.—Fort Worth 1966, writ ref’d n. r. e.), 6 Lowe, Texas Practice, Remedies § 114 (2nd ed. 1973). Appellant’s points 5 and 6 are overruled.

Appellant’s point 7 contends that the temporary injunction was an abuse of discretion in that the injunction did not properly preserve the status quo. The status quo is defined as the “ ‘last, actual, peaceable, non-contested status which preceded the pending controversy.’ ” Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (Tex.Sup.1962). Where the acts to be enjoined are prima facie violations of law, the status quo could never be a condition of affairs allowing the respondent to continue the violation. Rattikin Title Company v. Grievance Committee, 272 S.W.2d 948, 955 (Tex.Civ.App.—Fort Worth 1954, no writ). Compare Janus Films, Inc. v. City of Fort Worth, supra. We find the trial court’s ordering that the PUB could not use the power poles it had already put in place was not an abuse of discretion. Appellant’s point 7 is overruled.

The judgment of the trial court is affirmed.

      . All statutory references herein will refer to the PURA unless otherwise noted.

      . Certificates for Existing Service Area
      “For purposes of granting Certificates of Convenience and Necessity for those facilities and areas which a utility was providing service on September I, 1975, or was actively engaged in the construction, installation, extension, improvement of, or addition to, any facility actually used or to be used in providing public utility service on September 1, 1975, unless found by the Commission to be otherwise, the following rules shall prevail for certification purposes:
      The facilities and service area boundary for the following types of utilities providing distribution or collection service to any area, or actively engaged in the construction, installation, extension, improvement of, or addition to such facilities or the utilities system as of September 1, 1975, shall be limited, unless otherwise found by the commission, to the facilities and the area which lie within 200 feet of any point along a distribution line, which is specifically deemed to include service drop lines, for electrical utilities.” (Emphasis supplied).

      . Sec. 56. “Contracts between retail public utilities designating areas to be served and customers to be served by those utilities, when approved by the commission, shall be valid and enforceable and shall be incorporated into the appropriate areas of public convenience and necessity.”

      . Sec. 16. “The commission has the general power to regulate and supervise the business of every public utility within its jurisdiction and to do all things, whether specifically designated in this Act or implied herein, necessary and convenient to the exercise of this power and jurisdiction. The commission shall make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission. The commission may call and hold hearings, administer oaths, receive evidence at hearings, issue subpoenas to compel the attendance of witnesses and the production of papers and documents, and make findings of fact and decisions with respect to administering the provisions of this Act or the rules, orders, or other actions of the commission.” (Emphasis supplied).

      . Sec. 3(p). “ ‘Order’ means the whole or a part of the final disposition, whether affirmative, negative, injunctive, or declaratory in form, of the regulatory authority in a matter other than rulemaking, but including issuance of certificates of convenience and necessity and ratesetting.”


author: NYE, Chief Justice.

text:
    Howard Lee WYNN, Appellant, v. Nori G. WYNN, Appellee.
    No. 1536.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 13, 1979.

      Kim A. Cox, Clyde J. Jackson, Jr., Alsup & Alsup, Corpus Christi, for appellant.
    Eduardo E. de Ases, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is an appeal from a judgment of the 105th District Court of Nueces County, Texas, wherein the court held, in response to the jury’s answer to a special issue, that the parent-child relationship existed between appellant and the child that is subject of this suit.

On January 17, 1977, Nori G. Wynn filed suit against Howard Lee Wynn, alleging in substance that she was the mother of a child, John Michael Wynn, who was born out of wedlock on December 13, 1967, about one year after their divorce from one another. She alleged that the defendant was the biological father of the child, and that the purpose of the suit was to establish the parent-child relationship between defendant and the child. In accordance with these allegations, she prayed that the defendant be declared to be the father of the child, that she be awarded reasonable attorney’s fees, and for other general relief. Defendant answered with a general denial. Thereafter, the trial court granted plaintiff’s request that blood tests be ordered. Following several pre-trial hearings, the case proceeded to trial before a jury which, after hearing the testimony of several witnesses and evidence concerning the results of the blood tests, found the defendant to be the biological father of the child. The trial judge then entered a judgment to that effect. The defendant makes no complaint of the jury findings in his appeal to this Court.

Appellant’s major appellate complaints are predicated upon the affirmative defense that plaintiff’s suit was barred by the one-year statute of limitations set out in Section 13.01 of the Texas Family Code (Supp.1979). In substance, appellant contends that the right to establish the paternity of an illegitimate child under the terms of the Family Code’s involuntary legitimation provisions should not apply to this case because the child was born before September 1, 1975, the effective date of such provisions, and the suit to establish paternity of the child was brought more than one year after such effective date.

We initially observe that appellant defended the suit under a general denial only. The transcript before us is devoid of any written motion or pleading affirmatively asserting such defense. In addition, even assuming that it would be proper to raise such a defense orally, the statement of facts does not contain the provisions of any such motion or pleading dictated to the court reporter for preservation in the statement of facts. There are some oblique references to a “motion to dismiss,” apparently based upon some type of limitations defense which, as far as we can discern from a careful reading of the statement of facts, was filed in a related case which had previously been filed in another court (the original divorce court) under a separate file number.

The statement of facts does not establish whether there were in fact two motions to dismiss, one in the prior suit and one in this suit, or only one motion to dismiss which was filed in the prior suit. Being concerned that the limitations defense had not been raised or preserved, we requested further elaboration on this point during oral arguments. Appellant’s attorney could not point out to us any affirmative pleading in the transcript concerning the limitations defense other than to refer us to the statement of facts of the pre-trial hearing previously discussed herein. Although we provided additional time for appellant's attorney to check into this matter and advise us in a post-submission brief or other appropriate motion, no response from him was filed by the designated due date.

After the evidence was presented by both sides, and before judgment was entered, appellant filed his “Motion in Opposition to Entrance of Final Decree.” In this motion, which appears in the transcript, appellant argued that the final decree as proposed by appellee should not be entered for several specific reasons. Appellant's “affirmative defense of limitations” was not one of those mentioned in this motion. After the judgment was entered, appellant filed a motion for new trial where, for the first time in writing, he mentioned the limitations defense. In substance, appellant urged that a new trial should be granted because the trial court refused to grant his motion to dismiss for plaintiff’s “failure to bring suit within the one-year statute of limitations as required by V.A.T.S. Family Code § 13.01.”

There is nothing in the record from which we can reasonably conclude that the affirmative defense of limitations was ever properly before the trial court during the actual paternity proceedings. Limitations was not plead as a part of defendant’s original answer. There was no special exception in the pleadings attacking plaintiff’s petition on the basis that such petition plead facts which affirmatively established the validity of the limitations defense. The alleged “motion to dismiss” has not been produced before this Court in spite of inquiries made by this Court during oral arguments, nor has its absence been explained or justified in any manner. No mention of the limitations defense was made during the course of the trial on the merits. No special issue relating to this defense was requested by the appellant or submitted to the jury. No attempt was ever made to amend appellant’s answer to include the defense of limitations. Finally, appellant does not in any manner suggest or contend that the limitations defense was tried by implied consent.

It is well-settled law that a mere general denial will not place in issue the affirmative defense of limitations which must, pursuant to Rule 94, T.R.C.P., be specially pleaded. Southwestern Fire & Casualty Co. v. Larue, 367 S.W.2d 162, 163 (Tex.Sup.1963); Shell Chemical Co. v. Lamb, 493 S.W.2d 742 (Tex.Sup.1973); Boswell v. Handley, 397 S.W.2d 213 (Tex.Sup.1965). Affirmative defenses, in the absence of trial by consent, are waived if not affirmatively pleaded. Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829, 835 (Tex.Sup.1967). Even though a plea of limitations is a matter of an affirmative defense that must be specially pleaded or tried by implied consent, (where a pleading affirmatively states facts which demonstrate that the suit is barred), an exception may be used to test the pleadings. Hubler v. City of Corpus Christi, 564 S.W.2d 816, 823 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.); 1 McDonald, Texas Civil Practice, Section 7.19 (1971). The record before us demonstrates that none of the exceptions exempting a defendant from specially pleading the affirmative defense of limitations applies to the case before us and no such exception has been urged by appellant in spite of ample opportunity to so do. We conclude and hold that appellant has waived his right to rely on the limitations defense in this case.

Appellant next argues that illegitimate children born prior to September 1, 1975, (the effective date of the Family Code amendments establishing involuntary paternity procedures) have no judicially enforceable remedy to establish their paternity. This argument virtually ignores the United States Supreme Court decision of Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) and every other involuntary paternity suit brought for the purpose of establishing the paternity of children born prior to September 1, 1975, in Texas after that decision. In Gomez, the Supreme Court stated:

“(A) State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother . We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.” Gomez, supra at 538, 93 S.Ct. at 875 (citations omitted).

In Texas, both at common law and under the statutes of the State, a natural father has a continuing and primary duty to support his legitimate children. See Lane v. Phillips, 69 Tex. 240, 6 S.W. 610, 611 (1887); Tex.Family Code § 4.02 (1970). Considering the effect of the Gomez decision, this Court has stated:

“The right of an illegitimate child to obtain support from his or her natural father has been recognized since the United States Supreme Court decision of Gomez v. Perez.” Alvarado v. Gonzalez, 552 S.W.2d 539 (Tex.Civ.App.—Corpus Christi 1977, no writ).

A necessary incident of an illegitimate child’s right to seek support from his or her natural father is some sort of initial proof that the alleged father is the biological father of the illegitimate child. Implicit in the Gomez decision, therefore, is the notion that an illegitimate child has a common law right to institute a proceeding for the purpose of showing that the alleged father is his biological father as a necessary requisite to establish “a judicially enforceable right” otherwise accorded to legitimate children generally.

In enacting Section 13.01 et seq. of the Family Code, the legislature has attempted to provide a practical framework within which the rights of the alleged father as well as the rights of the illegitimate child are protected. The courts, however, have judicially interpreted these specific provisions to apply only to children who were born on or after the effective date, September 1, 1975. See Alvarado v. Gonzalez, 552 S.W.2d 539 (Tex.Civ.App.—Corpus Christi 1977, no writ). We find that where courts have permitted suits to establish the paternity of a child born prior to the effective date of Section 13.01, such suits have generally followed the guidelines set forth in the Family Code as amended. This statutory procedure (set out in Section 13.01 et seq.) is but a convenient method, in such a case, for the parties and the courts to establish paternity vel non and does not necessarily mean that the entire article is being given retroactive effect by the courts of this state.

Appellant next contends that the express provisions of Section 13.01 of the Texas Family Code evidence the legislature’s express intent that no suit should be brought to establish the parent-child relationship more than one year after the birth of the child or the effective date of the statute, whichever occurs later. This section 13.01 states: This specific provision has been held to be inapplicable to a child born prior to September 1, 1975, the effective date of the involuntary paternity proceeding provisions. Alvarado v. Gonzalez, 552 S.W.2d 539 (Tex.Civ.App.—Corpus Christi 1977, no writ). Also Texas Department of Human Resources v. Delley, 581 S.W.2d 519 (Tex.Civ.App.—Dallas 1979, writ filed); State Department of Public Welfare v. Martin, 562 S.W.2d 9 (Tex.Civ.App.—Eastland 1978, no writ).

“A suit to establish the parent-child relationship between a child who is not the legitimate child of a man and the child’s natural father by proof of paternity must be brought before the child is one year old, or the suit is barred.”

We are of the opinion that a suit to establish the parent-child relationship of a child born prior to September 1,1975, must be governed by common law principles since there are no express statutory provisions governing that situation. The applicable statute of limitations, if any, must be sought outside of the Family Code. Appellant has not challenged appellee’s suit on the basis that it was barred by the four year or any other specific statute of limitations. Accordingly, the applicability of any other limitations statute is not before us. Compare Texas Dept. of Human Resources v. Delley, 581 S.W.2d 519 (Tex.Civ.App.—Dallas 1979, writ filed).

After arguing that the involuntary paternity provisions contained in the Family Code, as amended, are inapplicable to this case, appellant takes the contrary position in his remaining point of error by complaining, in substance, that the trial court committed reversible error by failing to order a pre-trial hearing pursuant to Section 13.04, which provides, in relevant part, as follows:

“(a) After completion of the blood tests, the court shall order all parties to appear, either in person or by counsel, at a pretrial conference. The court shall call its appointed examiners to testify in person or by deposition about their tests and findings. A party may call other qualified examiners of blood tests to testify.”

Appellant’s complaints border on being frivolous. On July 8, 1977, approximately one and one half years prior to the time this case was heard on the merits, the trial judge entered an order requiring appellant, appellee, and the child in question to submit to blood tests conducted under the direction of Dr. Jerome L. Silverman. Dr. Silverman made the results of these tests known to the court and to the parties in a letter dated July 18, 1977. Although at least two pretrial hearings were conducted during the intervening months, at no time did the appellant request that a pre-trial hearing be held pursuant to Section 13.04. During one of these hearings, the trial judge asked appellant’s attorney if he had any other matters that he wanted to bring to the court’s attention prior to the trial. Appellant’s attorney replied: “Not that I know of.” Appellant cannot now be heard to complaint that a pre-trial hearing pursuant to Section 13.04 was not held when appellant did not even request such a hearing. Compare: Shockome v. Hernandez, 587 S.W.2d 535 (Tex.Civ.App.—Corpus Christi 1979).

Appellant later filed a motion in li-mine seeking to exclude the testimony concerning any of the blood tests or their results. This motion was overruled by the trial court. During the course of the trial, Dr. Silverman’s aforementioned letter was introduced into evidence and his testimony and the testimony of other witnesses involved in the blood testing was admitted into evidence without objection. Appellant’s complaint is without merit. He failed to object to the evidence such motion sought to exclude at the time it was offered into evidence during the trial. Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.Sup.1963).

The judgment of the trial court is AFFIRMED.

      . All references to the limitations defense were made during the course of pre-trial conferences or other hearings called to determine issues pertaining to requests or motions other than a motion to dismiss for the reason that plaintiffs suit was barred by limitations. During the initial pre-trial conference which was held to rule on plaintiffs request that blood tests be ordered, the general procedural setting of this case was generally discussed by the parties and the trial judge.
      Apparently, in 1976, appellee mother instituted an action in another court to hold appellant in contempt for failure to pay child support for another child which was a child of the marriage of appellant and appellee. In that same action, appellee also filed a “mo-
      tion to modify” the prior divorce decree to establish that the child subject of this present suit was the biological child of appellant. Thereafter, the parties apparently became concerned about the propriety of raising the paternity question in a motion to modify a prior decree of divorce. Consequently, according to the discussion, appellant’s attorney filed a motion to dismiss the paternity portion of the proceedings which the trial court granted. The precise grounds underlying this motion to dismiss are not revealed by the discussions during the pretrial conference in question pertaining to the present suit before us. The petition to establish paternity in this case was filed thereafter.


author: MASSEY, Chief Justice.

text:
    Gary L. MATHESON, Appellant, v. FIREMEN’S AND POLICEMEN’S CIVIL SERVICE COMMISSION OF the CITY OF DENTON, Texas, et al., Appellees.
    No. 18204.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 20, 1979.
    Rehearing Denied Oct. 18, 1979.
    Gray, Whitten & Loveless and Michael J. Whitten, Denton, for appellant.
    Burt Solomons, Acting City Atty., Den-ton, Cantey, Hanger, Gooch, Munn & Collins and S. G. Johndroe, Jr., Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

Gary L. Matheson, appellant and plaintiff below, was at all material times a member of the Police Department of the City of Denton. The city is one which qualifies to have its Police Department and the employees of that department covered by civil service under provisions of Tex.Rev.Civ. Stat.Ann. art. 1269m, (1963) “Firemen’s and Policemen’s Civil Service in cities over 10,-000”. Thus Matheson is entitled to the benefits of the provisions of the act. It is upon these that he has declared by his suit.

Matheson considers himself aggrieved by the following: (1) about the last day of March, 1977 the former Chief of Police for the city resigned, to be succeeded by party to the suit whom we will call Chief Mills; (2) on a temporary basis former Police Captain Perry, party to the suit, assumed the duties of Assistant Chief of Police under Chief Mills, who had formerly been Assistant Chief; (3) in May of 1977 a promotional examination was given to arrive at an eligibility list for promotion to Assistant Chief on a permanent basis as is provided by Art. 1269m, §§ 9 through 14; (4) Matheson made the highest grade upon the examination, with Perry having made a lower grade; (5) accordingly, there was certification made to Chief Mills in connection with designation of applicants eligible to be, by him, appointed to the position of Assistant Chief on a permanent basis; (6) Chief Mills appointed Perry rather than Matheson to the position; (7) pursuant to provisions of § 14E of Art. 1269m Chief Mills submitted in writing his report to the Chairman of the Civil Service Commission in explanation of the appointment of Perry rather than Matheson.

The provisions of the aforementioned § 14E include the following: “Head of such Department shall appoint the person having the highest grade, except where such Head of the Department shall have a valid reason for not appointing such highest name, and in such cases he shall, before such appointment, file his reasons in writing, for rejection of the higher name or names, with the Commission, which reasons shall be valid and subject to review by the Commission upon the application of such rejected person.”

The report of Chief Mills to the Chairman of the Commission painted a glowing picture of the qualifications and experience and dependability of Perry, but the only part thereof which tended to present a valid reason for not appointing Matheson (rather than Perry) was the following:

“Based upon the diversified training and work experience Captain Jimmy F. Perry best demonstrates the type of administrative background and ability to fill the job responsibilities of Assistant Chief of Police. It is my belief that because of the foregoing experience depth of Captain Perry with the functions of the Denton Police Department that he is the best qualified applicant for the position of Assistant Chief of Police and that such advancement would be in the best interest of the Denton Police Department in terms of continuing efficiency of departmental administration and function.’’ (Emphasis supplied.)

Matheson’s contention is the same at the review hearing held by the Commission upon application of Matheson, and at the trial court level to which Matheson brought his suit after his claim was rejected by the Commission. Such contention is that the report of Chief Mills in justification of Perry’s appointment to be Assistant Chief of Police (rather than Matheson) showed no valid reason for not appointing him to the position in question.

Art. 1269m, by its § 16a, “Purpose of law; hearings” (Supp.1978-79), provides in part: “It is hereby declared that the purpose of the Firemen and Policemen’s Civil Service Law is to secure to the cities affected thereby efficient Police and Fire Departments, composed of capable personnel, free from political influence, and with permanent tenure ... as public servants. The members of the Civil Service Commissions . when sitting as a board of appeals for . . . aggrieved employee who has invoked any review procedures are to render a fair and just decision, considering only the evidence presented before them in such hearing.” (Emphasis supplied.)

At Matheson’s hearing before the Commission (pursuant to his application for review because of Chief Mills having appointed Perry as Assistant Chief of Police rather than himself), there was presented evidence of matters reflecting lesser fitness of Math-eson than of Perry. These matters were not to be found in the report made by Chief Mills to the Chairman of the Commission. Had these been stated in Chief Mills report there would not exist the question of whether there was sufficiency of its content as presenting a valid reason for not appointing Matheson despite the fact that he had made a higher grade upon the examination.

Material to the issues in this case is the application of the Substantial Evidence Rule. The action of the Commission in confirmation of the appointment madé by Chief Mills, by the evidence before it, was not limited by the presentation made by Chief Mills’ earlier report. Evidence of the lesser fitness of Matheson was properly received and considered by the Commission.

We do not construe recent developments to have changed the law so that it has become improper to consider and act upon evidence in support of the Commission action which, though not presented at an earlier administrative hearing, could have been then presented. Furthermore, there was no evidence before the court below other than the transcript of the record made of the hearing before the Commission. Though Matheson sought attorney’s fees he introduced no evidence even in support of that part of his case.

In the trial court the burden of proof upon Matheson, to be discharged by him as condition to prevail, was that he show the decision of the Civil Service Commission not to have been supported by (available) substantial evidence despite the fact that in trial of the suit in court on an appeal from the decision of the Commission such trial shall be de novo. In the trial court all the evidence introduced is to be reviewed as though it had been presented before the Commission and such reviewing court may not substitute its judgment for that of the Commission. City of Garland v. Dittrich, 517 S.W.2d 839 (Tex.Civ.App.—Eastland 1974, no writ).

The order of the Commission is subject to be set aside only if from the evidence as a whole presented before the trial court (if it was or could have been presented before the Commission) is such that reasonable minds could not have reached the conclusion that the Commission must have reached in order to justify the action it took. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946); Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 82 (1939).

We hold that the written report of Chief Mills to the Chairman of the Civil Service Commission in explanation of his appointment of Perry as Assistant Chief of Police, why it was in the best interest of the department that Perry be' the appointee, satisfied the condition of the statute. It could not be the contemplation of law that in order to justify failure to appoint the man who has made the highest grade on the civil service examination that the written report must, as to him, present a species of condemnation of him; and especially would this be true relative to one situated as was Matheson, an employee expected to continue as such. If in this we err than by resort of the evidence presented before the Commission (and before the court below pursuant to Matheson’s petition for review) there is no justification for reversal by this court.

Matheson’s complaint that he was deprived of his right to due process of law is without merit; and we likewise hold that the same is true of other complaints made the subject of points of error presented on his appeal. Each has been considered; each is overruled.

We have taken note of the contention in opposition to the Matheson appeal that Art. 1269m, § 18, “Appeal to district court”, did not authorize action by a court on August 8, 1977, when Matheson instituted his suit in the district court. It was not until August 29,1977, that the Section provided for institution of suit in instances of actions and orders of the Commission other than of suspension, dismissal or demotion. To hold in accord with the contention would require reversal and dismissal of Matheson’s suit. Though the contention is probably one which is correct we have chosen to treat the case as one over which the trial court had jurisdiction and one as to which we might consider the merits involved. By either method our holding is that Matheson may not receive the relief he seeks.

The judgment is affirmed.


author: DODSON, Justice.

text:
    FIRST PREFERRED INSURANCE COMPANY, Appellant, v. Stanley B. BELL and wife Odessa M. Bell et al., Appellees.
    No. 9003.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 21, 1979.
    Rehearing Denied Oct. 17, 1979.

      Joe E. Shaddock, Wichita Falls, for appellant.
    Gibson, Ochsner & Adkins, W. P. Sturdi-vant, Amarillo, for Richard E. Preston dba Preston Ins. Co.
    Richard D. Bird, Childress, for appellee Stanley B. Bell.
   DODSON, Justice.

First Preferred Insurance Company appeals from an adverse judgment rendered by the trial court in favor of Stanley B. and Odessa M. Bell. The Bells brought this action against Beacon National Insurance Company and First Preferred Insurance Company on an oral contract for fire insurance on a house, furnishings and other items of personal property located therein, which were destroyed by fire. Alternatively, they sought recovery against Richard E. Preston and Tom Preston d/b/a Preston Insurance Agency for failure to obtain insurance coverage on the property.

After a jury trial, the court rendered judgment that the Bells recover from First Preferred Insurance Company the sum of $30,339.41 plus post judgment interest at the rate of nine percent per annum. The judgment amount includes $19,000 for the house, $7,339.41 for the furnishings and other items of personal property and $4,000 for attorney’s fees. The trial court further denied First Preferred Insurance Company recovery for indemnity or contribution against Richard E. Preston and Tom Preston d/b/a Preston Insurance Agency. We modify the judgment to exclude a recovery for attorney’s fees and as modified, the judgment is affirmed.

On appeal, First Preferred Insurance Company maintains inter alia that the Bells had no insurable interest in the house; that they failed to establish all of the essential elements of the oral contract of insurance on the property; that the Bells failed to file a proof of loss which precludes recovery; that they were not entitled to recover attorney’s fees on the loss; and that the trial court erred in failing to render judgment in its favor against Richard E. Preston d/b/a Preston Insurance Agency on its cross action for indemnity or contribution.

The uncontroverted evidence establishes the following matters:

1. That the Bells entered into a written contract to purchase the house in question from Ellena Crain on 16 November 1976; that they obtained a loan approval on the real property on 24 November 1976 and that on 26 November 1976, a fire destroyed the house, the furnishings and other items of personal property contained therein.

2. That Richard E. Preston and Tom Preston d/b/a Preston Insurance Agency were agents for First Preferred Insurance Company.

3. That Stanley B. Bell and Richard E. Preston agreed upon a Homeowner’s Policy type “B” covering the house in the amount of $30,000, which provided for forty percent coverage on the furnishings and other items of personal property; and that the parties agreed on the premium amount and the policy period of one year.

4. That the insurance coverage was to be placed with a deviating rate company of the Beacon Insurance Group; that First Preferred Insurance Company is the deviating rate company in the Beacon Insurance Group; and the First Preferred Insurance Company denied liability and coverage on or about 3 December 1976.

5. That Ellena Crain had no insurance coverage on the house in question and that the Bells never consummated the purchase of the property after the house burned.

First Preferred Insurance Company maintains that the Bells had no insurable interest in the house in question. We do not agree.

In Smith v. Eagle Star Insurance Co., 370 S.W.2d 448, 450 (Tex.1963), The Texas Supreme Court stated the generally accepted rule to be that:

an insurable interest exists when the assured derives pecuniary benefit or advantage by the preservation and continued existence of the property or would sustain pecuniary loss from its destruction (Emphasis added).

In reference to the insurable interest question, the jury found that the Bells would have derived a benefit or advantage by the preservation and continued existence of the house in question; but refused to find that they suffered a pecuniary loss from the destruction of the house.

The appellant attacks the legal sufficiency of the evidence to support the jury’s finding on the benefit or advantage issue. In deciding this question, we must “consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary.” Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If there is any evidence of probative force to support the jury’s challenged answer, then we must overrule the challenge and sustain the jury’s finding on the issue. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The uncontro-verted evidence shows that the Bells entered into a contract to purchase the house in question, obtained a loan approval on the property, took possession of the property and made improvements thereon. Under these circumstances, we conclude that there is evidence of probative force to support the challenged finding of the jury.

The appellant maintains, also, that the evidence is factually insufficient to sustain the jury’s finding of a benefit or advantage. In deciding this question, we must consider and weigh all the evidence in support of and contrary to the challenged finding to determine if the jury’s answer is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973); Garza v. Alviar, supra; In re King’s Estate, supra. Having so considered and weighed all of the evidence, we conclude that the jury’s finding on the benefit or advantage issue is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust.

The appellant says that the trial court erred in disregarding the jury’s refusal to find that the Bells suffered a pecuniary loss from the destruction of the house. Again, we disagree. In Smith v. Eagle Star Insurance Co., supra, the essential elements of an insurable interest in property are stated in the disjunctive. Proof of a pecuniary benefit or advantage in the preservation and continued existence of the property is sufficient to sustain an insurable interest. Smith v. Eagle Star Insurance Co., supra. In view of the jury’s finding on the benefit or advantage issue, the refusal to find a pecuniary loss is immaterial; therefore, the trial court did not err by disregarding the jury’s refusal to find a pecuniary loss.

The appellant further contends that the Bells had no insurable interest in the property because they had not executed the contract of purchase before they attempted to obtain insurance coverage on the house. The evidence establishes that Mr. Bell went to the office of Preston Insurance Company at approximately 8:30 to 9:00 a. m. on 16 November 1976, for the purpose of obtaining insurance coverage on the house which he and his wife Odessa were purchasing from Ellena Crain. The transaction to obtain insurance coverage occurred at this meeting with Richard E. Preston at the Preston Insurance Agency.

Mr. Bell told Mr. Preston that he was going to an attorney’s office to get the contract of purchase on the property. Bell went directly from the insurance office to the attorney’s office. The contract of sale and purchase was executed by the parties on 16 November 1976, at approximately 3:30 p. m.

In 44 C.J.S. Insurance § 179 (1945), the following general rule is stated:

To render the contract valid, insured is required by many authorities to have an interest in the property at the time of making the contract as well as at the time of loss, although there are cases which seem to hold that an insurable interest at the time of the loss is sufficient, and it has been said that the requirement of an insurable interest when the risk is assumed arose merely to prevent the use of insurance for illegitimate purposes, and that it should not be extended beyond the reasons for it by excessively technical construction.

The appellant did not affirmatively plead and does not contend that the Bells obtained insurance on the house for any illegitimate purposes and our review of the record reveals that the evidence would not support a contention of illegitimate purposes. Under the circumstances we are persuaded that the fact that the Bells had not executed the contracts of purchase at the time Mr. Bell obtained insurance on the property does not render the oral contract of insurance unenforceable. See Womble v. Dubuque Fire & Marine Ins. Co., 310 Mass. 142, 37 N.E.2d 263 (1941); Antell v. Pearl Assurance Co., 252 Minn. 118, 89 N.W.2d 726 (1958); 43 Am.Jur. Insurance § 467, n. 15.

The appellant says the Bells failed to establish all of the essential elements of an oral contract of insurance. The uncontro-verted evidence shows that Mr. Bell went to the Preston Insurance Agency and told Richard E. Preston that he was purchasing the house from Mrs. Crain; that he wanted the property covered with insurance; and that he had done business with U. S. F. & G. Insurance Company. Mr. Preston told Mr. Bell that he could save money by placing the insurance coverage with a deviating rate company; that he suggested a deviating rate company with the Beacon Insurance Group; that First Preferred is a deviating rate company within the Beacon Insurance Group; that the parties discussed Homeowner’s Policy types “A”, “B” and “C”; that Mr. Bell decided on a Homeowner’s Policy type “B”; that they determined that the amount of coverage should be $30,-000 and that the Homeowner’s Policy type “B” carries 40 percent contents coverage; that Mr. Preston figured a premium of approximately $400 for a term of One year and told Mr. Bell this amount; and that Mr. Bell said the contents coverage would not be enough, but that they never determined the amount of any additional contents coverage.

The uncontroverted evidence further shows that Richard E. Preston and Tom Preston d/b/a Preston Insurance Agency were agents for First Preferred Insurance Company, and that before Mr. Bell left the Preston Insurance Agency he asked Mr. Preston if he was covered to which Mr. Preston answered “sure” or “yes”.

In general, “a contract of insurance may be oral in all respects provided it is complete and the minds of the parties have met as to all of the essential elements” of the agreement. 32 Tex.Jur.2d Insurance § 11, p. 36 & nn. 16,17 & 18; see Pacific Fire Ins. Co. v. Donald, 148 Tex. 277, 281-82, 224 S.W.2d 204, 206-07 (1949). This section further provides:

For the purpose of establishing the essential elements, an oral contract may be regarded as complete and binding, on the theory that it is presumed to have been made in contemplation of a policy containing the terms and conditions in ordinary use. It is not essential to an oral contract of insurance that every detail should be expressly agreed on, since an implied agreement concerning essentials is as good as an express agreement. The difficulty in establishing an oral contract is frequently obviated, in part, at least, by the presumption that the parties contemplated the provisions and conditions of the usual written policy. More particularly, it is generally held that in contracts for original insurance, where no terms are expressly agreed on, it is presumed that the parties contemplated those contained in policies usually issued to cover like risks.

32 Tex.Jur.2d Insurance § 11, p. 37.

The uncontroverted evidence establishes that the parties agreed upon a Homeowner’s Policy type “B” covering the house, in question, in the amount of $30,000 with forty percent coverage on the contents at a premium amount stated as approximately $400 for a term of one year with the deviating rate company of the Beacon Insurance Group. First Preferred Insurance Company was the only deviating rate company of that group. Under these circumstances, we conclude that the Bells established the essential elements of an oral contract of insurance with the First Preferred Insurance Company on the house in question in the amount of $30,000 with content coverage in the amount of $12,000 for a term of one year, and the appellant’s challenge in this regard is overruled.

The jury found that the house was a total loss. The appellant attacks this finding with legal factual sufficiency points. We stated above the prescribed legal standards which this court must apply when determining legal and factual sufficiency points. Mr. Bell and a disinterested witness, each, testified that the property was a total loss. The evidence, also, shows that only a remnant of one wall of the house remained after the fire. There is no evidence that the remnant could reasonably be used as a basis for restoring the house. See American Central Ins. Co. v. Terry, 26 S.W.2d 162 (Tex.Com.App.1930, holding approved). Having considered the evidence in light of the prescribed legal standard for each point, we overrule the points of error.

In its brief, the Insurance Company avers that the Bells are precluded from recovery because they failed “to comply with notice of proof of loss provisions of any insurance policy.” The evidence shows the fire occurred on 26 November 1976 and Mr. Bell notified Richard E. Preston of the loss on or about 28 November 1976. Mr. Preston reported Mr. Bell’s claim to the appellant and after obtaining the services of an insurance adjuster to investigate the claim, the appellant denied the Bells’ claim in a letter dated 3 December 1976, alleging no insurance contract and no insurable interest in the property. Under the circumstances, we must overrule appellant’s contention. See American Central Ins. Co. v. Terry, supra at 164; Austin Building Co. v. National Union Fire Ins. Co.„ 403 S.W.2d 499, 506. (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e.).

The jury found that the household goods and personal items were actually worth $25,687.95 to the Bells before the fire and “none” after the fire. The appellant says that actual worth or value to the Bells is the wrong measure of damages for these items of used personal property. In this connection, it maintains that the actual cash value or replacement cost of the property with proper deductions for depreciation is the proper measure. We disagree. In Crisp v. Security National Insurance Company, 369 S.W.2d 326, 329 (Tex.1963), the court states:

It has long been the rule generally in this state that to compensate for the loss of used household furniture and personal effects the measure of damages is the value of such goods to the owner, that is, the actual loss in money he has sustained by being deprived of articles which are especially adapted to the use of the individual and his family.

The court also said that:

The courts have not abandoned the consideration of either market or reproduction or replacement values in arriving at actual value to the insured, but evidence of those values may be used as a guide in making that determination rather than a shackle which compels strict adherence thereto. The trier of facts may consider original cost and cost of replacement, the opinions upon value given by qualified witnesses, the gainful uses to which the property has been put as well as any other facts reasonably tending to shed light upon the subject.

The appellant further maintains that the evidence is legally and factually insufficient to support the jury findings on the before and after actual worth or value to the Bells. Mr. Bell testified to the value of each item of the household goods and personal effects. The total value he stated was the sum of $37,551. The appellant offered no evidence on the value of the property in question. We have considered the evidence in light of the prescribed standards for determining legal and factual sufficiency challenges and overrule each of these points.

The Bells plead for attorney’s fees. The jury determined that the sum of $4,000 was a reasonable attorney’s fee. The trial court entered judgment for the Bells for the $4,000 amount. The appellant challenges this portion of the judgment on the grounds that attorney’s fees are not authorized by contract, statute or otherwise. We agree.

In the absence of statutory authority or a contractual provision, attorney’s fees are not ordinarily recoverable in an action on a fire insurance policy. Bellinger v. Schutte, 244 S.W.2d 261, 262 (Tex.Civ.App.—San Antonio 1951, writ ref’d). The Bells maintained that article 6.13 of the Texas Insurance Code and article 2226 of the Texas Revised Civil Statutes Annotated authorized the recovery of attorney’s fees in this action. We do not agree. Statutes authorizing the recovery of attorney’s fees are penal in character and are to be strictly construed. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914, 915 (Tex.1967); Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex.1962). Article 2226 of the Texas Revised Civil Statutes Annotated applied to the specific actions set forth therein, and it does not apply to an action to establish and recover under a contract of insurance. Article 6.13 of the Texas Insurance Code provides:

A fire insurance policy, in case of a total loss by fire of property insured, shall be held and considered to be a liquidated demand against the company for the full amount of such policy. The provisions of the article shall not apply to personal property.
On and after January 1, 1951, the provisions of the preceding paragraph of this article shall be incorporated verbatim in each and every fire insurance policy hereafter issued as coverage on any real property in this State; and it shall be the duty of the Board of Insurance Commissioners, by proper order and procedure, to compel compliance with this statute.

This article does not specifically provide for or authorize the recovery of attorney’s fees in action thereunder.

The Bells further rely on Home Insurance Co. v. Boatner, 218 S.W. 1097 (Tex.Civ.App.—San Antonio 1920), writ dism’d, 239 S.W. 928 (Tex.Com.App.1922). In Boatner, the court sustained a recovery for attorney’s fees, where the insurance company had denied liability under a fire insurance policy. The court stated:

Appellant refused to pay the mortgagee anything, and for years has kept him out of his money, and it should be made to pay the mortgagee the amount of his debt when the judgment was rendered with interest and attorney’s fees and 6 per cent, on that judgment from that date. It would be an encouragement to insurance companies not to pay their just indebtedness, if they could litigate for years at only 6 per cent, per annum. Appellant must pay the interest of the mortgagee as it appeared, but it positively refused to pay any sum, and made no tender whatever, and it should be compelled to pay the attorney’s fees, for by its action it forced the mortgagee into court. Id. at 1099.

The court’s opinion indicates no other basis, either by contract or statute, upon which the attorney’s fees were awarded. Under the rationale of Bellinger, Van Zandt and New Amsterdam Casualty Company, we respectfully decline to follow Boatner. Each of these cases was decided several years subsequent to Boatner. We point out that the opinion of the Commission of Appeals in Boatner does not speak to attorney’s fees and that the facts in Boatner are dissimilar from the facts presented in the case before us.

The appellant filed a cross action against Richard E. Preston d/b/a Preston Insurance Agency for indemnity and in the alternative for contribution. The trial court denied any relief on the cross action. In its point of error, the appellant claims that:

The Trial Court erred in refusing this Defendant indemnity and recovery over against Cross Defendant Richard Preston for the reason that Preston did not notify this Defendant of any insurance covering Plaintiffs, collect any premium nor inspect the property before placing such alleged insurance.

The appellant plead the cross action in general language, made no request for the trial court to submit issues to the jury on its cross action, and filed no motion for a directed verdict on the cross action. Also, the appellant does not contend by specific points of error, that it conclusively established all of the essential elements of a recovery for indemnity or contribution. Under the circumstances, the appellant’s point of error is overruled. See Tex.R. Civ.P. 279, 301.

The appellant’s brief contains twenty-five points of error. We overrule points of error 1, 2, 3, 4, 5, 10, 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 23, 24 and 25. We sustain point of error 16, which challenges the award of attorney’s fees in the amount of $4,000. Our determination of these points of error is dispositive of this appeal; therefore, we deem it unnecessary to further discuss the remaining points of error.

Accordingly, that portion of the judgment decreeing that Stanley B. Bell and wife Odessa M. Bell recover from First Preferred Insurance Company the sum of $30,-339.41 plus interest at the rate of 9 percent per annum from the date of rendition of the judgment until paid is modified to decree that Stanley B. Bell and wife Odessa M. Bell recover from First Preferred Insurance Company the sum of $26,339.41 plus interest at the rate of 9 percent per annum from date of rendition of the judgment in the trial court until paid. As modified, the judgment of the trial court is affirmed.

The appellant is charged with 87 percent of the cost and Stanley B. Bell and wife Odessa M. Bell are charged with 13 percent of the cost.

COUNTISS, J., not participating.