author: CADENA, Justice.

text:
    Gloria GUERRERO et al., Appellants, v. AETNA CASUALTY & SURETY COMPANY, Appellee.
    No. 16007.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 22, 1978.
    j. Walter Park, IV, David T. Turlington, Davis & Morehouse, San Antonio, for appellants.

      Joe Meador, San Antonio, for appellee.
   OPINION

CADENA, Justice.

The question presented in this case is whether the stated policy limits of personal injury protection (PIP) coverage provided for in a single multi-car family automobile policy can be multiplied by the number of automobiles insured where such “stacking” or “pyramiding” is necessary to permit recovery by the insured and a relative for medical expenses and lost income where the amount of such expenses and losses exceeds the stated policy limits.

Plaintiff, Gloria Guerrero, sued to recover benefits allegedly due her under the policy issued by defendant, Aetna Casualty and Surety Company. She joins with the other plaintiffs, Magdalena Guerrero, Eddie Guerrero, Linda Guerrero and Guadalupe E. Guerrero, Jr., as sole heirs of Guadalupe E. Guerrero, Sr., deceased, in their effort to recover benefits allegedly due their decedent under such policy. Plaintiffs appeal from the order of the trial court granting defendant’s motion for summary judgment and denying plaintiffs’ motion for summary judgment.

The policy in question covered three automobiles owned by decedent, one of which was a 1973 Chevrolet Malibu. On June 1, 1976, while decedent insured was operating the vehicle, and Gloria Guerrero was riding in it as a passenger, the automobile was involved in an accident which resulted in injuries to decedent and Gloria.

Defendant paid $2,500.00, the stated policy limit, to Gloria Guerrero under the PIP coverage for medical expenses incurred by her and for loss of income resulting from injuries sustained by her as a result of the accident and paid the same amount for medical expenses incurred by decedent as a result of such accident.

The parties stipulated that Gloria Guerrero and decedent each suffered a loss of $7,500.00, representing medical expenses incurred and income lost as a result of the accident.

Plaintiffs in this suit seek recovery of an additional $5,000.00 as benefits due to decedent and Gloria under the policy. Their theory is that since separate premiums were paid for each vehicle included in the PIP coverage, defendant is under an obligation to pay the stated policy limit ($2,500.00) multiplied by the number of automobiles (3) covered under the policy.

The PIP coverage is evidenced by Form 243, Personal Injury Protection Endorsement Family Automobile Policy (Texas Standard Automobile Endorsement Prescribed August 27, 1973). In accordance with the provisions of Article 5.06-3, Tex. Ins.Code Ann. (Vernon Pamphlet Supp. 1963-1977), the endorsement provides coverage for “(1) the named insured or any member of [his] household who sustains bodily injury, caused by accident, in a motor vehicle accident, and (2) any other person who sustains bodily injury, caused by accident (a) while occupying the insured motor vehicle, or (b) while using such vehicle with the permission of the named insured, or the spouse of the insured. . . . ”

The exclusions make the insurance inapplicable

(a) to any person who: (1) intentionally causes the accident resulting in the bodily injury of such person, or (2) sustains bodily injury while in the commission of a felony or while seeking to elude lawful apprehension or arrest by a law enforcement official.
(b) to the named insured or any member of the insured’s household who sustains bodily injury while occupying or through being struck by a motor vehicle owned by such named insured or any member of the insured’s household which is not an insured motor vehicle.

Article 5.06-3(e) requires an insurer to provide for exclusions (a)(1) and (a)(2) and these are the only exclusions mentioned in the statute. In Western Alliance Insurance Co. v. Dennis, 529 S.W.2d 838, 839 (Tex.Civ.App.—Texarkana 1975, no writ), the Court held that only the two exclusions mentioned in the statute were permissible, and that an exclusion substantially in the form of exclusion (b) found in the instrument before us is unenforceable. However, this holding was expressly disapproved by the Supreme Court of Texas in Holyfield v. Members Mutual Insurance Co., 572 S.W.2d 672 (1978). Plaintiffs’ contentions which are based on the holding in Dennis are, therefore, not persuasive.

Plaintiffs rely on the cases permitting stacking of medical payments coverage. Perhaps the leading Texas decision permitting such stacking is Southwestern Fire and Casualty Co. v. Atkins, 346 S.W.2d 892 (Tex.Civ.App.—Houston 1961, no writ). There, plaintiff was issued one policy which covered two vehicles, with a separate premium being paid for each vehicle. His daughter was injured when struck by a vehicle belonging to a third party. Although medical expenses incurred as a result of the accident exceeded $1,000.00, the insurer tendered only $500.00, the limit of liability specified in the policy. In allowing plaintiff to recover an additional $500.00 under the policy, the Atkins opinion, after pointing out that separate premiums were paid for each car covered reasoned: If only one car were insured, plaintiff could recover the specified limit of $500.00. If plaintiff had purchased a separate policy for each car, he could recover $500.00 under each policy. If double recovery were not allowed under a single policy covering two cars where a separate premium was paid for each vehicle, there would be no consideration for the additional premium charged for the medical expense insurance on the second car included in the policy. Id. at 895. The court in Atkins also relied on generally accepted rules of construction requiring that insurance policies be read as a whole and ambiguities be resolved in the manner most favorable to the insured. The court found the required ambiguity in what it considered as a conflict between the limitation of liability clause and the separability clause which provided that if two or more cars were insured under the policy the terms of the policy would apply separately to each.

The “no consideration” approach cannot be applied to the case before us. As observed in Dhane v. Trinity Universal Insurance Co., 497 S.W.2d 323, 328 (Tex.Civ.App.—Waco 1973) aff’d, Westchester Fire Ins. Co. v. Tucker, 512 S.W.2d 679 (Tex.1974), the medical payments coverage protects the insured or a member of his family if the injury occurred while the victim was riding in any automobile, whether insured or not, or if the victim was struck by an automobile while he was a pedestrian. The personal injury protection coverage is not as broad. The exclusion section of the PIP endorsement prohibits recovery if the injury occurred when the victim was occupying or was struck by an uninsured vehicle. Where coverage is extended to include more than one automobile, the risk to the insurer is increased, as is the protection afforded. In the case before us, the insurer would be liable if insured or a member of his household received injury while occupying any one of the three vehicles insured, or as the result of being struck by any one of the three vehicles. Such increase of risk and extension of coverage furnishes consideration for the separate premiums for each additional car insured, as is the case under the provisions of the uninsured motorist endorsement. Westchester Fire Ins. Co. v. Tucker, 512 S.W.2d 679, 683 (Tex.1974).

The ambiguity on which the court relied in Atkins resulted from the apparent inconsistency between the limitation of liability clause in the medical payments endorsement and the separability clause (applicable when more than two cars are insured by the same policy) found in the conditions section of the basic policy. 346 S.W.2d 892 (Tex.Civ.App.—Houston 1961, no writ). No such inconsistency is present in this case since the conditions clause of the PIP endorsement expressly recites that only the expressly specified conditions found in the basic policy are applicable to the PIP endorsement, and such enumeration does not include the separability clause.

We do not accept plaintiffs’ contention that the PIP endorsement is ambiguous because of conflict between the clause limiting liability and the clause relating to the effect of other insurance on the same vehicles. The “other insurance” clause in the PIP endorsement is as follows:

If there is other personal injury protection insurance against a loss covered by the provisions of this endorsement, the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in this endorsement bears to the total applicable limit of liability of all valid and collectible personal injury protection insurance; provided, however, the insurance afforded hereunder shall be excess over any other valid and collectible personal injury protection insurance available to the named insured or any member of the insured’s household, and provided the insurance with respect to a temporary substitute or non-owned automobile shall be excess over any other valid and collectible personal injury protection insurance. (Emphasis added.)

Plaintiffs contend that the underlined portions of the “other insurance” provisions specifically allow stacking because it states that the PIP coverage shall be in excess over any other valid and collectible PIP insurance.

In cases involving uninsured motorist endorsements, our courts have held that provisions concerning other insurance are unenforceable to the extent that they deprive the insured of the minimum protection required by Article 5.06-1, Tex.Ins. Code Ann. (Vernon Pamphlet Supp. 1963-1977) which requires uninsured motorist insurance. It is not true, therefore, that the other insurance provisions on which plaintiffs rely have the effect of limiting the liability of the insurer. The provision in question does not deprive the insured of the protection required by Article 5.06-3.

In American Motorists Insurance Co. v. Briggs, 514 S.W.2d 233, 236 (Tex.1974), the Supreme Court said:

‘We agree with . . . those jurisdictions which have construed their uninsured motorist statutes as precluding the use of “other insurance” clauses to limit the recovery of actual damages caused by an uninsured motorist.’ ... If coverage exists under two or more policies, liability on the policies is joint and several . , subject to the qualification that no insurer may be required to pay in excess of its policy limits.

A comparison of the endorsements relating to medical payments, uninsured motorist and PIP leads to the conclusion that the PIP endorsement more closely resembles the endorsement concerning uninsured motorist coverage as opposed to the medical payments coverage. The decisions denying the right to stack uninsured motorist coverage are, therefore, more persuasive than those permitting stacking of medical payments coverage. The trial court did not err in ruling that plaintiffs were not entitled to recover the specified policy limits for each of the three cars insured in this case.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    Marion T. CARSON, Independent Executor of the Estate of Julius B. Korus, Appellant, v. Mary Emma KORUS, Appellee.
    No. 16159.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 22, 1978.
    Rehearing denied Jan. 10, 1979.

      Eugene H. Lieck, Charles J. Lieck, Jr., San Antonio, for appellant.
    Stewart & Hemmi, Kirk Patterson, B. F. Pennypacker, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

Mary Emma Korus, appellee, sued to recover child support payments from Marion T. Carson, appellant and Independent Executor of the Estate of Julius B. Korus. Ap-pellee and Julius B. Korus were divorced in December of 1976, and Mr. Korus paid the child support called for under the divorce decree and property settlement agreement until his death on June 1,1978. Thereafter, appellant qualified as independent executor of the Estate of Julius B. Korus, but did not make further child support payments. The divorce decree and property settlement agreement required payments of $250 per month per child for each of the three children until they shall reach the age of 18.

On June 30, 1978, appellee filed a motion in the original divorce case to modify the divorce decree requesting that temporary orders be issued to require the appellant to pay child support in the amount of $750 per month. Appellee also requested that upon final hearing of this motion an order to require the estate to make such child support payments be entered. On August 18, 1978, the court ordered that appellant pay $2,250 arrearages in child support pending final hearing of the cause. Appellant prosecutes this appeal to attack this order.

Appellant contends that (1) the court is without jurisdiction to entertain this motion because the suit is one to enforce an alleged contract not within the court’s continuing jurisdiction defined in Section 11.05(a) of the Texas Family Code and that (2) the trial court erred in not requiring appellee to post a bond.

Section 11.05(a) provides as follows:

Except as provided in Subsections (b), (c), and (d) of this Section, when a court acquires jurisdiction of a suit affecting the parent-child relationship that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 of this Code.

Tex.Fam.Code Ann. § 11.05(a) (Vernon Supp.1978). In addition, Section 11.11(c) provides as follows:

In a suit under this subtitle the court may dispense with the necessity of a bond in connection with temporary orders in behalf of the child.

Tex.Fam.Code Ann., § 11.11(c) (Vernon Supp.1978).

The question is whether the present action is a “suit affecting the parent-child relationship” within Section 11.05. We conclude that it is not such a suit.

Sections 14.05(d) and 14.06(d) provide respectively:

Unless otherwise agreed to in writing or expressly provided in the decree, provisions for the support of a child are terminated by the marriage of the child, the removal of the child’s disabilities for general purposes, or the death of a parent obligated to support the child.
Terms of the agreement set forth in the decree may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as contract terms unless the agreement so provides.

Tex.Fam.Code Ann. §§ 14.05(d), 14.-06(d) (Vernon 1975).

Paragraph VI of the property settlement agreement provides that “[T]his agreement shall enure to the benefit of and be binding upon the heirs, assigns, executors, administrators, and personal representatives of the parties.” Appellee contends that this written agreement binds the estate to continue child support payments.

The case of Adwan v. Adwan, 538 S.W.2d 192 (Tex.Civ.App.—Dallas 1976, no writ) is in point. In Adwan, the wife sued her former husband in a district court of Dallas County to enforce a property settlement agreement made between them at the time of their divorce. The husband contended that the trial court lacked jurisdiction of this suit under Section 11.05 of the Texas Family Code because the domestic relations court had acquired jurisdiction of the children in a subsequent suit to change custody and retained continuing jurisdiction to the exclusion of the district court with respect to any “suit affecting the parent-child relationship.” In Adwan, the court stated:

The question is whether the present action in the district court is a ‘suit affecting the parent-child relationship’ within § 11.05. We conclude that it is not such a suit.
As we interpret this subsection [§ 14.-06(d)] in the light of the other provisions of Subtitle A, a suit to enforce the terms of a support agreement set forth in the decree by contempt proceedings or other remedies available for enforcement of a judgment must be ‘brought under this subtitle’ as a ‘suit affecting the parent-child relationship,’ but a suit to enforce the terms of such an agreement as contract terms is not one ‘brought under this subtitle,’ and, further, is not permitted unless the agreement provides that it may be enforced as a contract. If the contract does so provide, the suit may be brought, but it must be brought under the common law rather than ‘under this subtitle.’ The effect of § 14.06(d) is to exclude from the operation of the Code an action to enforce the provisions of a support agreement ‘as contract terms’ if the agreement provides that it may be so enforced. If such a suit is brought under the common law rather than under the Code, it is not a ‘suit affecting the parent-child relationship’ as defined in § 11.-01. Consequently, it is not within the ‘continuing jurisdiction’ provisions of § 11.05, which apply to a ‘suit affecting the parent-child relationship.’ (Emphasis added).

538 S.W.2d at 194.

We hold that a suit to enforce the terms of a property settlement agreement is not a “suit affecting the parent-child relationship.”

In view of our holding that this is not a suit affecting the parent-child relationship, it follows that § 11.11(c) of the Code does not authorize the trial court to dispense with the necessity of a bond in connection with these temporary orders.

The temporary orders entered by the trial court are hereby dissolved.

      . All future references to statutory sections are to the Texas Family Code.


author: ROBERTSON, Justice.

text:
    BOOKER CUSTOM PACKING COMPANY, INC., Appellant, v. CARAVAN REFRIGERATED CARGO, INC., Appellee.
    No. 19650.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 28, 1978.
    Rehearing Denied Jan. 8, 1979.

      Ben L. Krage, Kasmir, Willingham & Krage, Dallas, for appellant.
    Cecil M. Arnold, Jr., Dallas, for appellee.
   ROBERTSON, Justice.

Caravan Refrigerated Cargo, Inc., appel-lee, sued Booker Custom Packing Company, Inc., appellant, for unpaid interstate freight bills, pre-judgment interest and attorney’s fees. Booker claimed an offset for meat damaged by Caravan in a previous shipment and sought an amount identical to the unpaid freight bills. At trial, the parties stipulated to the validity of Caravan’s claim on the unpaid freight bills, and further stipulated that if Caravan was entitled to attorney’s fees, the amount of such fees would be $1,000. Special issues were submitted to the jury which answered favorably for Booker on the offset. However, the court entered a judgment notwithstanding the verdict. We reverse and remand with instructions to render judgment on the verdict, allowing Booker’s offset, but also allowing Caravan pre-judgment interest.

Five special issues were submitted to the jury. Special Issue No. 2 asked: “Do you find from a preponderance of the evidence that Caravan Refrigerated Cargo, Inc. promised to deliver to Booker Custom Packing Company, Inc. a tractor, for the purposes of towing trailer no. 87 on any date set prior to August 28, 1975?” Answer: “We do.” The court disregarded this issue and entered judgment notwithstanding the verdict on no evidence grounds. Appellant contends that there was evidence, in the form of appellant’s pleading, to support this issue. In reviewing a judgment notwithstanding the verdict based on no evidence to support a jury finding, an appellate court must view the evidence in the light most favorable to the jury’s finding and must disregard all evidence to the contrary. Echols v. Wells, 510 S.W.2d 916 (Tex.1974). Also, if there is any evidence to sustain the jury’s findings, it is conclusively binding on the court. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

After Booker rested, Caravan presented its case, which consisted of the introduction into evidence of Booker’s second amended original petition. This pleading was read to the jury in its entirety, save and except for the preamble and prayer. The pleading stated: “. that on August 22, 1975, Caravan promised Booker that a tractor would be available on Monday, August 25, 1975, to pick up trailer 87, loaded with Booker’s shipment of meat; that this promise was repeated on the 25th for the 26th, and the 26th for the 27th; that the tractor did not arrive until the 28th; that the delay caused the meat to deteriorate; that the deteriorated condition of the meat caused Booker’s damage in the amount of $5,017.35.” Caravan offered no other evidence and made no attempt to impeach or limit the recitations in Booker’s pleadings other than stating it was offering this in rebuttal. We hold that this pleading since it was offered by Caravan, is, at least, some evidence to support the verdict. The long standing rule in Texas is that where a party offers in evidence a pleading of his opponent without limitation, the allegations in such pleading are conclusively established. Texas & New Orleans Railroad Co. v. Patterson and Roberts, 192 S.W. 585 (Tex.Civ.App.—Amarillo 1917, no writ); McClung Const. Co. v. Langford Motor Co., 33 S.W.2d 749 (Tex.Civ.App.—Fort Worth 1930, no writ); Lincoln v. Pohly, 325 S.W.2d 170 (Tex.Civ.App.—Texarkana 1959, writ ref’d n. r. e.); Seddon v. Harrison, 367 S.W.2d 888 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.). Although the supreme court has not specifically addressed this point, we feel compelled to defer to this well-established rule. It is an extraordinarily harsh one, which we do not personally favor, since an unsworn pleading, even if offered by the opposing party, logically does not tend to show what the true facts are, but only what the pleader has asserted them to be, unless its allegations are contrary to the position taken by the pleader at the trial.

Caravan by crosspoint seeks attorney’s fees pursuant to Tex.Rev.Civ.Stat. Ann., art. 2226 (1975). The parties concede that this was a sworn account for unpaid freight charges; however, Caravan admits that it failed to comply with the notice provision of the statute in that they did not make demand for payment of the note thirty days prior to the commencement of this action. Therefore, we hold that the trial court was correct in denying appellee’s claim for attorney’s fees.

Caravan further seeks pre-judgment interest since this is an action on a sworn account, and this is not contested by Booker. As a general rule, if damages are established as of a definite time and the amount thereof definitely determinable, interest is recoverable as a matter of right from the date of injury or loss. Black Lake Pipe Line Co. v. Union Construction Co., Inc., 538 S.W.2d 80 (Tex.1976). The petition must contain pleadings to support an award of pre-judgment interest, but a prayer for interest without more- is sufficient to support such an award. Black Lake Pipe Line Co. v. Union Construction Co., supra. Caravan has satisfied both of these requirements. Both a prayer for interest and the time at which the damages were definitely established are set forth in the pleadings. We thus hold that Caravan is entitled to pre-judgment interest at the rate of 6% per annum from January 1, 1976 until final judgment. Tex.Rev.Civ.Stat.Ann., art. 5069-1.03 (1971); Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978). On remand the trial court is instructed to compute the proper amount of interest due and owing to Caravan and to render judgment on the verdict allowing Booker the offset claimed.

Reversed and remanded with instructions.


author: WARD, Justice.

text:
    Roger E. CANTER et al., Appellants, v. Weldon A. LINDSEY, Individually and as trustee, Appellee.
    No. 6729.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 29, 1978.
    Rehearing Denied Dec. 20, 1978.

      Sewell, Junell & Riggs,- Gordon A. Holloway, Leighton E. Moss, Houston, Weaver & Ferguson, John T. Ferguson, Big Spring, Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Midland, for appellants.
    Kerr, Fitz-Gerald & Kerr, Wm. Monroe Kerr, Michael T. Morgan, Harris E. Kerr, Freeman & Hyde, Robert F. Freeman, Midland, for appellee.
   OPINION

WARD, Justice.

This is a suit for declaratory judgment to resolve a three-party dispute over the ownership of a ¼⅛ royalty interest in certain lands in excess of Vsth royalty. The Plaintiff is the successor in interest of the grantee of a 1935 deed on certain lands in Martin County. He sued the Defendant, who is the successor in interest of the grantee of a 1941 conveyance. The Inter-venors succeeded to the rights, if any, of the original grantor in the two deeds. Trial was to the Court upon stipulated facts, and judgment was entered in favor of the Plaintiff. The Defendant and Intervenors filed separate appeals. We reverse and render in favor of Intervenors.

The real parties in interest are all successors to the three principal actors involved in the two deeds, all of whom are now deceased. They were Mrs. Dora Roberts, M. C. Lindsey, and J. E. Mabee. Mrs. Dora Roberts was the owner of four leagues of land totalling 17,712 acres in Martin County, and is the common source of title. On January 19, 1935, Mrs. Roberts by deed sold to M. C. Lindsey an interest in the four leagues. This instrument is denominated “Royalty Deed,” yet nowhere in the body of the instrument does there appear the word “royalty.” As will be noted, it speaks in terms of a double fraction, Vith of ⅛⅛, and never the single fraction, '/32nd. The deed reserves to the grantor bonus, delay rentals, and all executive rights. Other provisions of this 1935 instrument from Dora Roberts to M. C. Lindsey are as follows:

“ * * * do by these presents sell and convey unto M. C. Lindsey * * * ONE FOURTH OF ONE 4- EIGHTH (¼ of ⅛) of all the oil, gas, and other minerals produced from the following described land * * *
“ * * * the interest herein conveyed being an equal one fourth of one eighth (¼ of ⅛) part of all of the oil, gas, and other minerals when same has been produced from said land, and to such extent, such part of any and all future productions of such is hereby conveyed.”

On April 8, 1941, Dora Roberts executed and delivered to J. E. Mabee the deed conveying to Mabee a s/4ths interest in all the oil, gas, and other minerals in and under the four leagues of land, the provisions deserving the greatest attention being as follows:

“That I, Dora Roberts, * * * do GRANT, SELL, and CONVEY unto the said J. E. Mabee, of Tulsa, Oklahoma, a three-fourths (¾) interest, undivided, in and to all of the oil, gas and other minerals, on, in, and under the certain tracts, parcels and pieces of land * * *
“For the same consideration, I have GRANTED, SOLD and CONVEYED, and by these presents do GRANT, SELL and CONVEY unto the said J. E. Mabee the right, privilege and authority to execute Oil and Gas Leases on the remaining one-fourth (¼) interest in the oil, gas and other minerals in the above described land, and the right to receive all bonus monies and annual delay rentals accruing under any such lease covering such remaining ¼⅛ interest, as well as all other benefits accruing thereunder, save and except the royalty payable under any such lease covering such ¼⅛ interest, all royalty accruing under any such lease on such ¼⅛ interest being payable to M. C. Lindsey, his heirs and assigns, who owns an undivided one-fourth (¼) non-participating royalty interest in the oil, gas and other minerals in said land, but who has no right to execute an Oil and Gas Lease, or leases, thereon, or to receive any bonus monies or rentals payable thereunder, all of which rights were retained by grantor herein, and are herein assigned to J. E. Mabee, his heirs and assigns, to the end that from and after the execution hereof, J. E. Mabee shall own the sole right, privilege and authority to execute an Oil and Gas Lease, or leases, on all of the oil, gas and other minerals in and under the above described land and the right to receive all bonus monies and delay rentals accruing under any such lease, or leases, covering said land, but with the right to receive only three-fourths (¾) of the royalty accruing under any such lease, or leases, the remaining one-fourth (¼) interest in such royalty being owned by M. C. Lindsey, his heirs and assigns.”

No other conveyances of any interest in or on the subject tract were thereafter made by Dora Roberts. On or about November 7, 1973, an oil and gas lease covering a portion of the subject tract was executed. It is this lease which provided for a royalty greater than ⅛⅛, namely Vwths, and it is this portion of this royalty whose ownership is disputed in the present suit. Production under that lease was obtained in 1974.

The position of each of the parties may be summarized as follows. First, the Plaintiff contends that under the 1935 deed and the 1941 deed he is entitled to a ¼⅛ of any royalty reserved under any lease on the subject tract, with the remaining 8/iths of any such royalty being owned by the Defendant. In particular, he is claiming ¼⅛ of the 3/i6ths royalty reserved in the lease, or in effect a ⅜4⅛8 royalty interest.

Second, the Defendant contends that it is entitled to all royalty reserved under any lease on the subject tract in excess of Vdh of ⅛⅛ (Vknd) of all oil or gas produced, which '/32nd would be owned by the Plaintiff. In particular, the Defendant claims all of the Vieths royalty reserved in the lease which is in excess of Vith of ⅛⅛ (Vknd) of the oil and gas produced, or in effect a %ths royalty interest.

Third, the Intervenors contend that they are entitled to Vith of any royalty in excess of Vsth which may be reserved in any lease covering the subject tracts. In particular, they are claiming Vith of Vwth (or VMth) of all oil or gas produced under the lease.

The positions of the parties are set forth graphically in the following table. The Plaintiff claims Vith of any royalty reserved under any lease with the remaining Viths of any royalty owned by the Defendant.

Plaintiff - ¼ of ¾6 = ⅜4
Defendant - ¾ of ¾6 = %4
Intervenors - 0 =0 ¾6

The Defendant claims it is entitled to all royalty reserved under any lease in excess of Vith of Vsth (Vtand), with the ownership of the royalty under the lease being as follows:

Plaintiff - ¼ of ⅛ = V32
Defendant
all royalty in excess of ½2
⅜6 - ½2 = 10/⅞4
Intervenors - 0 = 0 ¾6

The Intervenors claim they are entitled to Vith of any royalty in excess of Vsth reserved on any lease (Vith of Vwth, or Vm th).

Plaintiff - ⅛ of ⅛ = ½2
Defendant - ¾ of ¾6 = ⅝⅞4
Intervenors
¼ all royalty in excess of Vs
Vi of (¾6 - ⅛) = ⅛4 ¾6

The trial Court found both the 1935 and the 1941 deeds to be unambiguous and we agree with that conclusion, although we do not agree with the subsequent construction. All of the parties agree that the 1935 deed from Mrs. Dora Roberts to M. C. Lindsey is unambiguous. The interest conveyed to Lindsey by that 1935 deed is set forth twice in that instrument:

“* * * ONE FOURTH of ONE + EIGHTH (Vi of ⅛) of all of the oil, gas, and other minerals produced from the [subject land.] * * *
“ * * * the interest herein conveyed being an equal one fourth of one eighth (V4 of Vs) part of all of the oil, gas, and other minerals when same has been produced from [the subject land] * *

From this starting point, we note the first rule of construction of a deed, and that is that the intention of the parties be ascertained and given effect. However, this primary rule of construction must be modified with the restriction that it is not the intention which the parties may have had but failed to express in the instrument, but it is the intention which by said instrument they did express. Stated another way, the question is not what the parties meant to say, but the meaning of what they did say. 19 Tex.Jur.2d Deeds, Sec. 107 at 391, and Sec. Ill at 401 (1960). As stated in Davis v. Andrews, 361 S.W.2d 419 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.):

“ * * * Again, it has been said that the intention as expressed in the deed must be given effect, regardless of the intention that the parties had intended to express but that they failed to express. If there is no ambiguity in a deed, the instrument will be enforced as written, even though it does not express the original intention of the parties. * * * ”

The deed being unambiguous, the intention of the parties is to be ascertained by the Court as a matter of law from the language used in the writing without any aid from evidence as to the attending circumstances. Parol evidence is not admissible to vary or modify the nature or extent of an interest defined by a deed in unambiguous terms. Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563 (1945); Smith v. Liddell, 367 S.W.2d 662 (Tex.1963); 19 Tex.Jur.2d Deeds, Sec. 120 at 416.

With the above generally stated rules in mind, we hold that the 1935 deed granted a Vs2nd nonparticipating royalty to Lindsey, and that interest is now held by the Plaintiff. Although the interest conveyed is not described as such in the deed, there can be no question as to the intent expressed in the instrument. Certain of that intent can be seen from the grantor’s reservation of the exclusive powers to lease for oil, gas, and other minerals, as well as all rights to “all down payments, bonuses and rentals.” However, the intent is then made certain by the language that the fraction of the oil and gas granted is “produced” oil and gas, as well as that produced in the future. Barker v. Levy, 507 S.W.2d 613 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.); Miller v. Speed, 248 S.W.2d 250 (Tex.Civ.App.—Eastland 1952, no writ); Pinchback v. Gulf Oil Corp., 242 S.W.2d 242 (Tex.Civ.App.—Beaumont 1951, writ ref’d n. r. e.); 3A Summers Oil & Gas, Sec. 599 at 267-274 (1958). The Plaintiff became entitled to a Vrand royalty interest, but no more. That interest was established in 1935 and was absolute and independent of any royalty reserved in any future lease by the then holder of the executive rights.

The Plaintiff contends that the recitals in the 1941 deed from Dora Roberts to J. E. Mabee established or made his right and title to ¼⅛ of all royalties provided for in the 1973 oil and gas lease. That 1941 deed does not in any way grant or convey, or purport to grant or convey, any interest in the oil, gas or other minerals to M. C. Lindsey. There is no granting language with regard to Lindsey. The reference to the ¼⅛ interest in the royalties supposedly owned by Lindsey are mere recitals in connection with the exception to the conveyance to Mabee. The grantor’s then erroneous belief that Lindsey owned a ¼th interest in any royalties, which would include those in excess of a ⅛th royalty, and the incorporation of this erroneous belief into a recital as to the reason for the exception from the grant cannot operate as a conveyance of such an interest. Pich v. Lankford, 157 Tex. 335, 302 S.W.2d 645 (1957). Even if the 1941 deed had expressly stated that the grantor therein was reserving a ¼th nonparticipating royalty interest to Lindsey, the Plaintiff would be in no better position. The law in Texas clearly holds that a reservation or exception in favor of a third party is inoperative. Joiner v. Sullivan, 260 S.W.2d 439 (Tex.Civ.App.—Texarkana 1953, writ ref’d). By the same token, strangers to the deed have no right to set up its recitals as estoppel. Woldert v. Skelly Oil Co., 202 S.W.2d 706 (Tex.Civ.App.-Texarkana 1947, writ ref’d n. r. e.); 28 Am.Jur.2d Estoppel and Waiver, Sec. 21 (1966).

As to the Defendant who is making his claim as the successor to the grantee Mabee in the 1941 deed, the argument is made that the 1941 deed expressly granted to Mabee all of the then remaining right, title and interest of Mrs. Roberts in and to the land. We disagree. The granting clause recited the conveyance of a 3/iths interest, undivided, in and to all the oil, gas and other minerals in and under the four leagues of land. This conveyed the undivided interest of the minerals in place. In addition, she expressly provided and granted unto Mabee (a) the right, privilege and authority to execute oil and gas leases on the remaining V4th interest in the minerals in the above described land; (b) the right to receive all bonus monies and annual delay rentals accruing under any lease covering such remaining ¼⅛ interest in the minerals; and (c) in addition, “all other benefits” accruing under any lease covering such remaining ¼⅛ interest in the minerals, save and except the royalties payable to M. C. Lindsey. Under the 1941 deed, it did not convey unto Mabee all except that which had been previously granted to Lindsey, but conveyed to Mabee a ¾⅛8 mineral interest, executive rights on the subject tract, and bonus and delay rental rights. Dora Roberts merely made an erroneous recital. Since only a Vs2nd royalty interest was owned by Lindsey under the 1935 deed, she, under the mistaken belief that a ¼⅛ nonparticipating interest was outstanding, excepted such interest from the conveyance to Mabee by clear and unambiguous language. She thus retained as her own that portion of the excepted interest which was not already outstanding in another. Thus, by the two deeds, Dora Roberts conveyed s/4ths of the minerals in place and a ⅛⅛ royalty under the remaining ¼⅛ minerals in place, and she has assigned all of the executive rights under the whole. She has not conveyed but still retains the ⅛⅛ mineral interest and is entitled to royalty on that interest in excess of the ⅛⅛ conveyed. In the instant case, since the lease in question provides for a 3/i6ths royalty, the Interve-nors as successors to the rights of Dora Roberts are entitled to a Vinth of all such royalty.

The judgment of the trial Court is reversed and rendered to the extent that the claim of the Intervenors is sustained, that is that at the time of the death of Dora Roberts, she owned a ¼⅛ of all royalty in excess of ⅛⅛ which is now or might be payable under any lease on any of the four leagues of land in question, and such interest is now owned by the Intervenors in the proportions set forth in the trial Court judgment. To the extent that the trial Court awarded such interest to the Plaintiff, and to that extent only, the judgment of the trial Court is hereby reversed and rendered, and to that extent the Plaintiff takes nothing. To the extent that the trial Court determined that the Defendant acquired no interest in and owns no interest in the undivided ¼⅛ of royalty in oil, gas and other minerals produced and saved from the four leagues, such judgment is affirmed.


author: MURRAY, Justice. CADENA, Chief Justice.

text:
    CRYSTAL CITY INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. GRIFFITH-WILLIAMS CATTLE COMPANY et al., Appellees.
    No. 16075.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 29, 1978.
    Rehearing Denied Jan. 10, 1979.

      Peter Torres, Jr., San Antonio, for appellants.
    Edward Kliewer, III, Ronald B. King, Foster, Lewis, Langley, Gardner & Banack, Inc., San Antonio, for appellees.
   OPINION

MURRAY, Justice.

This suit was brought by appellees for declaratory judgment, for a writ of mandamus, and for temporary and permanent in-junctive relief due to the adoption of an illegal and void scheme of taxation of real property for ad valorem tax purposes by the appellants. Appellees filed a motion for summary judgment which the trial court granted on the ground that the ad valorem taxes had not been levied by the school district as required by law. The school district then perfected its appeal to this court.

On August 9, 1976, the board of trustees of the school district through a resolution authorized the levy of ad valorem taxes assessed by the board of equalization. Ap-pellees filed suit against appellants as a result of this alleged levy which adopted the property valuation increases made by appellants at the July 1976 board of equalization hearings. Appellees alleged such valuations upon their properties to be in excess of that allowed by law. Appellees also alleged that the method by which their tax liability was affixed for the 1976 ad valorem tax year contained many irregularities. Furthermore, this levy was alleged to be invalid and void as to all appellees because the levy was not in accordance with the laws of the State of Texas and did not contain the formalities required by the law to constitute a valid levy.

Although appellees pleaded several causes of action, their summary judgment motion only asserted that the levy conducted by the school district was invalid and that the appellants unlawfully denied some ap-pellees their agricultural exemption. The motion for summary judgment was granted on the sole ground that the purported levy of taxes for the 1976 tax year was invalid and void because of the failure of such levy to be conducted with the formalities required by law. The court then ordered that the maximum tax liability incurred by the appellees for the 1976 ad valorem tax year was an amount equal to that previously paid to the appellants by each appellee.

The facts as they relate to the actions taken by the board of trustees on August 9, 1976, are without dispute. The appellants did not contest the accuracy of the minutes or resolution, which purport to evidence the 1976 levy of taxes for the school district. The appellants did not file any controverting affidavits nor did they in any way contradict any of the testimony of Mr. Balder-as. Mr. Balderas, who is president of the board of trustees of the Crystal City Independent School District, testified in his deposition that the August 9, 1976, board of trustees’ meeting was the only meeting which concerned the levy of 1976 taxes.

The minutes of the meeting of the board of trustees concerning this tax levy reflect that:

Mr. Balderas made a motion to set the assessment ratio at 60% of the fair market value for all property in the Crystal City Independent School District, except for those applying for and qualifying for Agricultural Exemption; these values will be placed on the productive values, as set by Southwestern Appraisal Company. The persons qualifying for an Agricultural Exemption and Old Age Homestead Exemption will have an option to choose either the Agricultural Exemption or the Old Age Homestead Exemption. Mr. Rivera seconded this motion. Motion carried 5-0. This was based on the recommendation by Mrs. Avila and Supt. Lopez.

The unsigned resolution attached to the minutes of the meeting provides:

WHEREAS, THE BOARD OF TRUSTEES OF THE CRYSTAL CITY INDEPENDENT SCHOOL DISTRICT is empowered to levy and collect taxes by the Texas legislature.
BE IT RESOLVED, that the tax rate for the Crystal City Independent School District, for tax year 1976, be set at $2.15 per hundred dollars of valuation;
That the assessment ratio of all property except real property qualifying for an Agricultural Exemption, be 60% of fair market value;
That the Tax Assessor-Collector for the Crystal City Independent School District receive and accept applications from taxpayers eligible for either Old Age or Agricultural Exemptions, but that no individual taxpayer shall be granted more than one such exemption;
That all land qualifying for an Agricultural Exemption be assessed upon the basis of its productive value, and that this productive value is to be determined by the Tax Assessor-Collector.

No fact issue exists as to these minutes and this resolution.

The only question before this court is whether or not the trial court was correct in holding that the alleged levy of taxes for the 1976 ad valorem tax year was, as a matter of law, invalid and void. Texas law is well settled that the levy of an annual ad valorem tax by a board of trustees of an independent school district is required to be by ordinance rather than by motion or resolution. Mercedes Independent School District v. Nolen, 536 S.W.2d 662, 664 (Tex.Civ.App.—Corpus Christi 1976, no writ); Flower Grove Independent School District v. Roger, 77 S.W.2d 602, 603 (Tex.Civ.App.—El Paso 1934, writ dism’d); Tex.Rev.Civ.Stat. Ann. art. 1027 (Vernon 1963).

Appellant asserts that this resolution qualifies as an ordinance because it is vested with the formalities, solemnities and characteristics of an ordinance; therefore, the levy is valid. We disagree.

The type of ordinance contemplated by the Texas courts was defined in St. Louis Southwestern Ry. Co. of Texas v. Naples Independent School District, 30 S.W.2d 703 (Tex.Civ.App.—Texarkana 1930, no writ):

To be an ‘ordinance’ within the meaning of the statute, the procedure must be more than a mere verbal motion made, adopted, and entered on the minutes, more than a mere resolution subsequently reduced to writing by the secretary. It must be reduced to writing before being acted on by the council. It must be invested, not necessarily literally, but substantially, with the formalities, solemnities and characteristics of an ordinance, as distinguished from motions and simple resolutions.

Id. at 705.

In Naples, the board of trustees of the school district also levied its 1928 ad valo-rem taxes by resolution. The resolution, which was entered and recorded in the minutes of the board of trustees’ meeting as the action of the board, read as follows:

May 4, 1928. We, the Board of Trustees of the Naples Independent School District, hereby levy or set the tax rate on $100.00 valuation for this district at $1.00 to be assessed and collected by the duly elected Assessor and Collector for the purpose of maintenance and payment of bonds, 60% to be used for maintenance, 40% to be used- for payment of bonds.
The above order was unanimously passed by the Board of Trustees, Naples Independent School District, this date.
Dr. C. D. Hibbitts, President,
B. J. Floyd, Secretary.

This resolution was the only action taken by the board of trustees for the levy of these taxes. The court held that this resolution was sufficient to constitute an ordinance; therefore, the levy of ad valorem taxes was valid.

The court reasoned that this resolution, which stated the amount of the tax, for the purposes for which it was levied, and the percentages to be applied, contained the same elements that constitute an ordinance. The court further reasoned that the notation appearing at the foot of the recorded resolution was in effect a certificate and an indication that the above order was in written form at the time it was passed or acted on by the board of trustees. 30 S.W.2d at 705.

The resolution, involved herein, does not meet the minimum requirements set out in Naples. The minutes do not indicate that the resolution was ever acted on or passed by the board. The resolution was not signed by any member of the board and does not correspond to or bear any relationship to the minutes. Finally, the resolution does not state the purposes for which it was levied. This resolution clearly lacks the elements required to constitute an ordinance that levies ad valorem taxes.

Furthermore, the minutes of the August 9, 1976, meeting of the board of trustees show that Mr. Balderas made a motion to set the assessment ratio. The amount of the tax and the purpose for which it was levied were not stated, and the minutes do not reflect that a vote was ever taken on the tax rate. Under Geffert v. Yorktown Independent School District, 290 S.W. 1083 (Tex.Comm’n App.1927, opinion adopted), these minutes do not constitute a valid levy of ad valorem taxes.

We hold that the levy of ad valorem taxes by the Crystal City Independent School District for the 1976 tax year is invalid and void as to these appellees.

The trial court, in this judgment, enjoined the appellants from collecting taxes from appellees in excess of those previously paid by them to the appellants. As this suit only involved the 1976 ad valorem tax levy, the trial court’s judgment is reformed to read that the appellants are enjoined from collecting 1976 ad valorem taxes from appellees in excess of those previously paid by them to the appellants.

The judgment of the trial court is reformed and as reformed is affirmed.

CADENA, Chief Justice.

I concur in the result solely on the ground that the taxing agency took no action of any kind purporting to levy a tax for the year in question.


author: DIES, Chief Justice. KEITH, Justice,

text:
    Mrs. Dempsey MORROW, Appellant, v. PORT ARTHUR INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 8208.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 30, 1978.
    Rehearing Denied Dec. 21, 1978.

      Gerald Eddins, Port Arthur, for appellant.
    Banker Phares, Port Arthur, for appellee.
   DIES, Chief Justice.

Plaintiff below, Mrs. Dempsey Morrow on behalf of her son, Walter Morrow, sued the Port Arthur Independent School District, defendant below, for the negligence of an employee, the principal of DeQueen School, in failing to instruct the school bus driver to let her son off on Sixth Street rather than Seventh Street. Plaintiff alleged Seventh Street was “very busy” and created a “dangerous situation.”

Defendant filed a general denial, and in its prayer asked “that this action be dismissed by the court; that the court find that no cause of action whatsoever exists in favor of Plaintiff.”

Defendant later filed a Motion to Dismiss on the grounds that it was protected by the doctrine of governmental immunity, and the court dismissed the case. From this order of dismissal, plaintiff brings this appeal.

The Motion to Dismiss amounted to a general demurrer, which Tex.R.Civ.P. 90 directs “shall not be used.”

See Ragsdale v. Ragsdale, 520 S.W.2d 839, 842 (Tex.Civ.App.—Fort Worth 1975, no writ); Pugh v. Borst, 237 S.W.2d 1021 (Tex.Civ.App.—San Antonio 1951, no writ); McClain v. State, 235 S.W.2d 947 (Tex.Civ.App.—Eastland 1951, writ ref’d n. r. e.); Texas Employers Ins. Ass’n v. Tyler, 224 S.W.2d 783 (Tex.Civ.App.—Galveston 1949, writ ref’d).

The proper manner for defendant below to raise its contention would be to seek a Summary Judgment as provided in Tex.R.Civ.P. 166-A, or it could proceed in the manner outlined by Judge Keith in McCamey v. Kinnear, 484 S.W.2d 150, 152-153 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.).

In the posture the cause reaches us we cannot consider the merits. The order of the trial court granting Port Arthur Independent School District a dismissal is reversed, and the cause is remanded to that court.

REVERSED and REMANDED.

KEITH, Justice,

concurring and dissenting.

I am in accord with the determination that defendant could have properly raised its jurisdictional point by a motion for summary judgment or by special exception under Tex.R.Civ.P. 90 (1967), as interpreted in McCamey v. Kinnear, 484 S.W.2d 150, 152-153 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.). I do not agree that these two procedures are exclusive or that the trial court erred in dismissing the case because plaintiff’s pleadings failed to state a cause of action.

Plaintiff’s petition contains three numbered paragraphs and a prayer. The first paragraph identifies the parties. The second, alleging negligence, is quoted in the margin; and the third contains the damage allegations.

Defendant’s answer is unusual, consisting of a general denial and a lengthy prayer which is quoted in the margin. Subsequently, defendant filed its motion to dismiss wherein it alleged that as an independent school district it was protected by the doctrine of governmental immunity except as such immunity had been waived by the Texas Tort Claims Act, Tex.Rev.Civ.Stat. Ann. art. 6252-19, § 19A (1978). After quoting § 19A, defendant alleged: “Plaintiff’s cause of action, however, is not one that is allowed under Sec. 19A and, therefore, should be dismissed.”

The order of dismissal recites that there was a hearing on the motion to dismiss, but the order does not contain any recitation that plaintiff sought leave to amend or objected to the procedure followed in the disposition of the motion.

As noted earlier, I am of the opinion that while either procedure set forth in the majority opinion would have been proper under this record, that followed by the trial court was not erroneous. Several courts have used such a procedure in the disposition of suits — all after the adoption of Tex. R.Giv.P. 90 in 1940. I discuss a few of these cases.

In Lone Star Gas Co. v. Murchison, 353 S.W.2d 870, 871 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.), the first syllabus in the opinion reads:

“We have concluded that the pivotal question presented by this appeal is propriety of the trial court’s action in holding that Lone Star’s pleadings failed to state a cause of action and in dismissing the suit.”

The court then examined the pleadings and found that a cause of action was stated and the judgment was reversed and the cause was remanded. Earlier, a similar result had been reached in Lane v. Davis, 337 S.W.2d 292, 293 (Tex.Civ.App.—San Antonio 1960, no writ). The Lone Star Case, supra, has been followed in several other cases, namely: Lower Colorado River Authority v. McIntyre, 494 S.W.2d 219, 221 (Tex.Civ.App.—Austin 1973, no writ); Newton v. Dallas Morning News, 376 S.W.2d 396, 397 (Tex.Civ.App.—Dallas 1964, no writ).

Newton v. Dallas Morning News lays down the rule to be followed in such a case:

“Since the trial court disposed of this cause by sustaining a motion to dismiss thereby holding that appellants’ petition failed to state a cause of action, we must test the propriety of this action in the same manner as previously done under the general demurrer practice and in so doing we must assume the truth of the allegations contained in the petition. Lone Star Gas Co. v. Murchison, Tex.Civ.App., 353 S.W.2d 870.” (376 S.W.2d at 397)

The court proceeded to test the ruling under such standard and found, just as the trial court had concluded, that the pleading did not state a cause of action and the judgment of dismissal was affirmed.

Plaintiff’s counsel, even upon appeal, does not suggest that he could have amended the petition to state a cause of action. Instead, he argues in the first point that “Plaintiff’s claim is within the purview of the waiver of immunity in the Texas Tort Claims Act,” while the second and final point simply avers that there are material (but undisclosed) issues of fact to be determined and that the defendant did not establish as a matter of law that plaintiff had no cause of action.

It cannot be argued successfully at this point in time that school districts are liable in tort for the negligence of their agents except to the extent that the defense of governmental immunity has been waived by § 19A of the Texas Tort Claims Act. Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex.1978), citing with approval Coleman v. Beaumont Independent School District, 496 S.W.2d 245, 246 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.), wherein Chief Justice Dies collated and cited many cases so holding.

Section 19A of the Texas Tort Claims Act is a model of legislative simplicity, and I quote it in its entirety:

“The provisions of this Act shall not apply to school districts or to junior college districts except as to motor vehicles.”

Plaintiff’s petition did not mention the Tort Claims Act or the waiver; instead, the petition was simply one sounding in common law negligence under the doctrine of respondeat superior. As such, it stated no cause of action against the defendant.

In Campsey v. Brumley, 55 S.W.2d 810, 812 (Tex.Comm’n App.1932, holdings approved), the Court held:

“The jurisdiction of a court is determined, not by the judgment rendered, but by the petition.”

See also Northwest Oil Company v. Railroad Commission, 462 S.W.2d 371, 376 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

After testing the allegations under the rationale of the Lone Star Gas and Newton cases, supra (353 S.W.2d at 871 and 376 S.W.2d at 397, respectively), by assuming the truth of the allegations contained in the petition, I am of the opinion that no cause of action was stated in the petition, and that the trial court properly dismissed the cause. I would affirm the judgment of dismissal.

      . “On or about June 10, 1976, at approximately 1:04 p. m., Plaintiffs minor son, WALTER MORROW, was struck and injured by a passing automobile, after being dropped off of a school bus owned and operated by the PORT ARTHUR INDEPENDENT SCHOOL DISTRICT, as he attempted to cross Seventh Street. Plaintiff would show that Plaintiff had, on two previous occasions within a few days of the incident, requested the principal of De-Queen School to instruct the bus driver to drop her son on Sixth Street to avoid the necessity of his crossing the very busy Seventh Street. Although the principal indicated such arrangements would be made they were not, and as a direct and proximate result of the principal’s failure to make the necessary arrangements Plaintiffs minor son was forced to cross Seventh Street at a busy time of day, which ultimately resulted in the injuries made the basis of this suit. Plaintiff would show that such failure on the part of Mr. Meeks, the principal of DeQueen School, as an agent or employee of the PORT ARTHUR INDEPENDENT SCHOOL DISTRICT, was negligence and especially so when prior warning of the dangerous situation was given on at least two previous occasions.”

      . “WHEREFORE, PREMISES CONSIDERED, Defendant prays that this action be dismissed by the Court; that the Court find that no cause of action whatsoever exists in favor of Plaintiff; that Defendant owes Plaintiff no money whatsoever for the causes advanced by Plaintiff; that all attorney’s fees be denied Plaintiffs attorney; that all costs of Court be assessed against Plaintiff; and for such other relief as the Court may find Defendant entitled.”

      . It is appropriate to note at this point that under the terms of Tex.Educ.Code Ann. § 16.55 (1972), a variation of the bus route would have been unlawful, said section reading in part:
      “School buses shall be operated to and from school upon approved school bus routes and no variations shall be made therefrom." (emphasis supplied)


author: HUGHES, Justice.

text:
    Gary Daniel BASS, Appellant, v. McCLUNG ROOFING CO., INC., et al., Appellees.
    No. 18021.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 30, 1978.
    Opinion on Motion for Rehearing Dec. 28, 1978.

      Pace, Chandler & Rickey, and Jonathan A. Pace, Dallas, for appellant.
    Simon & Simon, and Robert M. Doby, Jr., Fort Worth, for appellee McClung Roofing Co.
    William D. Campbell, Fort Worth, for appellee Jay Jackson Automotive.
   OPINION

HUGHES, Justice.

Gary Bass has appealed from the take nothing judgment of the trial court in favor of McClung Roofing Company, Inc., and Jay Jackson Automotive. Bass sued for damages arising out of the collision of McClung’s truck with Bass’ auto. Custody and control of the truck was alleged in Jackson as of the time of the collision.

Trial court, without a jury, found: McClung was not “negligent in parking the truck at its location prior to the collision”; that Bass failed to prove McClung’s employees “failed to secure the truck prior to collision”; that Jackson’s employee “was negligent in failing to secure the truck just prior to the collision”; that such negligence “was a proximate cause of the collision”; that Bass proved the market value of the auto immediately before the collision, but failed to prove the reasonable cost of repairs necessary to restore the auto to its condition before the collision or the market value of the auto immediately after the collision. These last findings are the basis for Bass’ appeal.

We reverse and remand.

We hold the trial court erred in finding that Bass failed to prove market value in Tarrant County after the collision. We have considered the entire record before us and agree with Bass’ second point of error that this finding is so against the great weight and preponderance of the evidence that it is reversible error. This judgment is the subject of several other points and crosspoints of error. We have considered each of them and each is overruled. Because we are remanding this case, we feel it is unnecessary to discuss any facts except those connected with the point on which we are reversing.

The trial court’s finding that Bass failed to prove market value after the collision meant that Bass proved all elements of his cause of action except damages. Therefore, the issue in this appeal is whether by proof of the price he received for salvage, Bass proved market value after the collision and hence, proved damages.

Bass’s pleadings asserted that the auto was totally demolished and wrecked; that the cash market value on the date of the collision was $4,000.00; that he had recovered $1,247.50 as salvage, and therefore his damages were $2,752.50. This amount is the difference in the reasonable cash market value of his auto immediately before and immediately after the collision at the time and place of the collision. He pled alternatively that this amount also represented the reasonable and necessary costs of repair.

We conclude from the record that all parties tried the case on the theory that the car was a total loss. Wayne Edinburgh, an insurance adjuster in Fort Worth for plaintiff’s insurance carrier, testified that his company declared it a total loss. This testimony was elicited by defendant, McClung, on cross-examination. It was not contradicted by either defendant. The statement in proof of loss signed by Bass showing actual loss and damage to the Corvette to be $3,300.00 was admitted in evidence by McClung without objection. This amount was found by the judge to be the cash market value immediately before the collision. Jackson did not question Edinburgh on this point.

Mrs. Bass witnessed the accident and testified to the extensive damage sustained by the auto. She photographed the auto the evening of the accident. These photographs were introduced into evidence without objection. She testified that they correctly and accurately portrayed the damage immediately after the accident, except for some damage under the hood. The photographs in the record show extensive damage. She also testified to individuals who sought to purchase the auto after the collision in order to salvage parts from it.

Both of these witnesses testified that the auto was sold as salvage and to the net amount obtained. Edinburgh testified it was sold in a salvage pool to the highest bidder. While he was not directly asked if the sale took place in Tarrant County, the location can be inferred from his testimony that it was the Tarrant County Salvage Pool on Mansfield Highway. The defendants did not object to evidence of salvage nor did they offer evidence that plaintiff could have obtained more in salvage or in some other way mitigated his damages.

Generally, the measure of damages for injury to a vehicle is established by proof of the vehicle’s market value immediately before and immediately after the injury at the place it occurred. Where the vehicle is a total loss, the measure of recovery is its market value on the date of the loss at the place of loss. 17 Tex.Jur.2d Damages §§ 92, 93 (1960). Another way of expressing the measure of damages in cases where the vehicle cannot be repaired is that it is the difference between market value before the accident and the salvage value of the wreckage. 8 Am.Jur.2d Automobiles and Highway Traffic § 1042 (1963). Government Employees Ins. Co. v. Hanna, 219 S.W.2d 122 (Tex.Civ.App.—Fort Worth 1949, writ ref’d n. r. e.).

Where a vehicle is a total loss, the only market value it has is what it would bring as salvage. We take judicial notice of the fact that at the time of this collision and trial, Tarrant County had a salvage market for wrecked autos. We hold here that evidence of what was obtained for salvage was some evidence of market value. The amount Bass obtained as salvage was admitted without objection. Under these circumstances, the court erred in finding that no market value was established immediately after the collision.

We are authorized to overrule a trial court’s fact findings only when they are not supported by any evidence of probative force or are so against the great weight and preponderance of the evidence as to be obviously wrong. City of Garland v. S. H. Lynch & Associates, 413 S.W.2d 480 (Tex.Civ.App.-Dallas 1967, no writ). In considering points of error asserting that evidence is insufficient, the court of civil appeals must consider all the evidence and should remand for a new trial only if the verdict is so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We overrule the trial court’s finding that Bass failed to prove market value in Tar-rant County immediately after the collision. The effect of this finding was that Bass failed to prove damages. Such finding is so against the great weight and preponderance of the evidence as to be obviously wrong. We remand for a new trial because the error led to a judgment that was manifestly unjust.

McClung argues the finding that he was not negligent should be upheld, and that error, if any, was not sufficiently material to require reversal of that portion of the judgment rendered in his favor. Even though the error found only affected damages, the entire cause of action must be remanded for a new trial on all issues since liability was contested. In such a situation, damages alone cannot be retried. Tex.R. Civ.P. 434.

Judgment is reversed and remanded for a new trial.

OPINION

ON MOTION FOR REHEARING

Appellee McClung’s motion for rehearing is granted. The recent amendments to Tex.R.Civ.P. 434 permit us to order a partial new trial when the issues are clearly severable and the new trial can be conducted without unfairness to the parties. Because the reversible error did not affect the trial court’s verdict in favor of McClung, and the issues as to him are separable, we hereby modify our previous opinion and judgment. The portion of the trial court’s judgment in favor of McClung is severed and affirmed. The portion of the trial court’s judgment that Bass take nothing is reversed and remanded for a new trial for the reasons previously stated in our opinion.


author: CIRE, Justice.

text:
    James F. HURY, Jr., Criminal District Attorney, Relator, v. Raymond E. MAGEE, Judge, Respondent.
    No. 2008.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 6, 1978.
    Rehearing Denied Jan. 3, 1979.

      James F. Hury, Jr., in pro. per.
    Gerald A. Burks, Asst. Dist. Atty., Galveston County, Galveston, for relator.
    Raymond E. Magee, Judge, in pro. per.
    Tom Lambright, Houston, for respondent.
   CIRE, Justice.

This is a petition for a writ of mandamus. Relator, the Criminal District Attorney of Galveston County, asks this court to direct respondent Raymond E. Magee, Judge of County Court No. 1 of Galveston County, to proceed to trial in a case instituted by relator to have a child declared delinquent. Respondent dismissed the petition upon a motion filed by the child’s attorney on the ground that County Court No. 1 lacked jurisdiction to sit as a juvenile court.

Relator urges that County Court No. 1 is vested with juvenile jurisdiction by reason of a constitutional grant. For the reasons set out below, we hold that County Court No. 1 has no authority to act as a juvenile court, and accordingly the petition for writ of mandamus is denied.

In his brief respondent sets out a detailed discussion of the history of juvenile jurisdiction in Texas and in Galveston County. Without dwelling at length on this history, it will suffice for our purposes to begin with an examination of juvenile jurisdiction as it stood just prior to 1969.

At that time juvenile jurisdiction existed in the district and constitutional county courts by virtue of Tex.Rev.Civ.Stat.Ann. article 2338-1 §§ 1 through 24-A, and in the Domestic Relations Court by virtue of Tex.Rev.Civ.Stat.Ann. article 2338-16. In 1969 the Texas Legislature amended Tex. Rev.Civ.Stat.Ann. article 2338-16 to confer jurisdiction on both County Court No. 1 and County Court No. 2 concurrent with the Court of Domestic Relations in cases involving delinquent child proceedings. As a result jurisdiction over juvenile cases was vested in the district and county courts, County Court No. 1, County Court No. 2, and the Domestic Relations Court of Galveston County. This legislation remained in effect until it was repealed in 1977 by the Family District Court Act, Tex.Rev.Civ. Stat.Ann. article 1926a § 3.04(b)(17).

County Court No. 1 is not specifically given jurisdiction over juvenile cases by statute. It is, however, given concurrent jurisdiction with County Court No. 2, Tex. Rev.Civ.Stat.Ann. article 1970-342a, § 2(b). County Court No. 2 in turn is given the same jurisdiction as the Domestic Relations court, Tex.Rev.Civ.Stat.Ann. article 1970-342b, § 15. As a result whatever juvenile jurisdiction County Court No. 1 may have had was dependent upon the juvenile jurisdiction which the Court of Domestic Relations derived from article 2338-16.

When the Family District Court Act was passed in 1977, the statute creating the Domestic Relations court, article 2338-16, was repealed, and the court was abolished. Tex.Rev.Civ.Stat.Ann. article 1926a, § 3.04(b)(17). This removed the authority over juvenile cases from County Court No. 2, and consequently from County Court No. 1. Accordingly we hold that there is no statutory authority giving County Court No. 1 such jurisdiction.

We further hold that no other legislative act accomplishes such a result. Tex. Family Code Ann. section 51.04 contains the following language:

(b) In a county having a juvenile board, the board shall designate one or more district, criminal district, domestic relations, juvenile, or county courts or county courts at law as the juvenile court .

Two recent decisions by courts of civil appeals have resulted in a conflict of authority on this point. The El Paso Court of Civil Appeals has held that this language grants to the courts there enumerated, jurisdiction over juvenile matters. In the matter of G. B. B., 572 S.W.2d 751 (Tex.Civ.App. 1978). This holding conflicts with that in E_ S_ v. State, 536 S.W.2d 622 (Tex.Civ.App.-San Antonio 1976, no writ), a decision by the San Antonio Court of Civil Appeals. That court held that section 51.04 was not a grant of jurisdiction to the courts listed, but rather provided “a procedure by which, in counties having more than one court otherwise empowered to act in juvenile cases, it will be possible to develop, within the existing jurisdictional framework, . . . expertise, knowledge, and skill in juvenile matters . ..” 536 S.W.2d at 626 (emphasis added). We agree with this holding.

The Attorney General of Texas has also issued an opinion dealing with this question. In Op.No. H-325 (1974) at page 1506, he stated:

Section 51.04 . . . does not confer the jurisdiction of a juvenile court on courts not already possessing it.
******„
Designation as the juvenile court under Sec. 51.04 of the Family Code is limited to courts possessing jurisdiction over juvenile matters from a source other than the Family Code.

We think this is correct. Even though the legislature apparently assumed that these various courts had jurisdiction, there was nothing in the Texas Family Code conferring it. Since abolishing the acts which previously gave juvenile jurisdiction to County Court No. 1, the legislature has taken no action which would reinstate such jurisdiction.

The only other source which could confer juvenile jurisdiction on County Court No. 1 is the Constitution of the State of Texas. This is the source upon which relator bases this appeal. Tex.Const. article V § 16 provides, inter alia,

The County Court shall have the general jurisdiction of a Probate Court; they shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis and common drunkards, grant letters testamentary and of administration, settle accounts of executors, transact all business appertaining to deceased persons, minors, idiots, lunatics, persons non compos mentis and common drunkards, including the settlement, partition and distribution of estates of deceased persons and to apprentice minors, as provided by law . . .. (emphasis added)

This section grants to the county court some jurisdiction over minors. However, when read in context with the other powers there granted, it is clear that the county court’s jurisdiction over minors is limited to those instances where it sits as a probate court, and is not a grant of authority over delinquency proceedings.

Accordingly, since the County Court No. 1 of Galveston County is not vested with jurisdiction to hear juvenile cases by any statutory or constitutional authority, respondent was correct in dismissing the petition filed by relator. No writ of mandamus will issue to respondent.

Writ denied.


author: SHANNON, Justice.

text:
    TEXAS OIL AND GAS CORPORATION, Appellant, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. 12827.
    Court of Civil Appeals of Texas, Austin.
    Dec. 6, 1978.

      C. C. Small, Jr., Larry W. Langley, Small, Craig & Werkenthin, Austin, for appellant.

      John L. Hill, Atty. Gen., Austen H. Furse, Asst. Atty. Gen., Austin, for Railroad Commission.
    Dan Moody, Jr., Graves, Dougherty, Hearon, Moody & Garwood, Austin, for Pel-to Oil Co.
    Robert C. McGinnis, McGinnis, Lochridge & Kilgore, Austin, for Hughes and Hughes.
   SHANNON, Justice.

Appellant, Texas Oil and Gas Corporation, appeals from the judgment of the district court of Travis County which affirmed an order of the Railroad Commission. The order established the net acre-feet of reservoir space in the Pettus Southeast Field in Bee County, a common gas reservoir, and also allocated the total net acre-feet to the separately owned tracts in the field for proration purposes. We will affirm the judgment of the district court.

Appellee Hughes and Hughes, a partnership, and appellant hold leases in the Pettus Southeast Field. Appellee Pelto Oil Company, a corporation, owns a 25 percent working interest in the Hughes lease. For purposes of this opinion, it is accurate to state that appellant applied to the Commission for an amendment of the field rules in the Pettus Southeast Field to change the allocation of gas well allowables in the reservoir from 100 percent surface acreage allocation to 100 percent net acre-foot allocation.

The Commission’s task was to determine the net acre-feet assignable to each tract. The parties presented evidence pertaining to that issue. After hearing, the Commission entered its order in which it assigned 34,400 productive net acre-feet to the Hughes tract and 3,345 productive net acre-feet to appellant’s tract, a material reduction of appellant’s participation. The Commission grounded its determinations on Pel-to Exhibit 13, an isopach map showing the productive limits and thickness of the reservoir, and Pelto Exhibit 15, a tabulation of acre-feet attributable to each operator within the productive limits of the reservoir.

The controversy between the parties concerned the course and direction of the western segment of a fault line which forms the southern productive limit boundary of the reservoir. Appellant contended that the fault ran more or less in an east-west direction. Pelto, on the other hand, claimed that the fault line dipped more to the south, thereby putting a greater amount of productive area in the Hughes lease and entitling Hughes to a greater allocation of acre-feet of productive sand. The Commission adopted Pelto’s view.

Appellant’s first point of error is that the district court erred in affirming the Commission’s order in that it was not supported by substantial evidence. Pelto’s position as to the location of the fault was presented by its geologist, Dan C. Hudson. Both on direct and cross-examination Hudson testified as to the geologic basis for his conclusion that the western segment of the fault line curved to the south.

Appellant claims that Hudson’s opinion testimony is no evidence either because it was based upon unfounded assumptions or because it was the result of inference piled upon inference.

Opinions of experts are received in agency hearings, as well as in conventional trials, upon the theory that by reason of study or experience, experts have a special knowledge of the subject of inquiry which the fact finders generally do not possess and that the experts are therefore better equipped to draw conclusions from the facts than are the fact finders.

Pelto qualified Hudson as an expert without challenge from appellant’s representative. Appellant was represented at the Commission’s hearing not by counsel, but instead by a consulting petroleum engineer. Hudson was permitted to testify and give opinions to matters within the realm of his expertise. On appeal, appellant seeks in part to undermine Hudson’s opinion testimony by claiming that his statement that two existing wells were in the same fault block was an unwarranted assumption. That some of the facts to which Hudson testified were not capable of direct proof, in the sense of having someone testify to direct observation of them, does not mean that his testimony may be fairly characterized as assumption. Because most geological facts are not directly observable, much of the lore of geology must rest on reasonable conclusions drawn from facts indirectly observed and sometimes imperfectly known.

It appears to us that Hudson’s statement was not an assumption, but instead it was the statement of an expert as to a geological fact based upon a study of the logs of the wells and a comparison of them presented on his cross section. We agree with Pelto and Hughes that Hudson did not make an assumption and then proceed to another presumption based thereon. Rather, Hudson testified to geological facts available to him, and gave his expert conclusions drawn therefrom, a method of reasoning used by scholars from at least the time of Aristotle.

Appellant’s representative cross-examined Hudson as to the foundation for his opinions. As was its right, appellant argued to the Commission that Hudson’s opinions, grounded upon allegedly incorrect premises, did not warrant belief. The Commission was entitled, of course, to believe or disbelieve Hudson’s testimony. See Board of Firemen’s Relief & Retirement Fund Trustees v. Marks, 150 Tex. 433, 242 S.W.2d 181 (1951). The Commission chose to believe Hudson’s evidence.

Hudson’s opinion evidence is substantial evidence even though its reliability was questioned. In a substantial evidence rule appeal, the reviewing court does not substitute its judgment for that of the agency. We are of the view that reasonable minds could have arrived at the conclusion that the Commission must have reached in entering its order. It follows that appellant’s point of error should be overruled. Auto Convoy Company v. Railroad Commission of Texas, 507 S.W.2d 718 (Tex.1974).

The Administrative Procedure and Texas Register Act empowers the reviewing trial court, under certain conditions, to order the administrative agency to take additional evidence. Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19(d)(2) (Supp.1978). The refusal of the district court to reverse and remand the Commission’s order with instructions to reopen the record and permit the introduction of additional evidence is appellant’s complaint in its second point of error.

Section 19(d)(2) provides that:

“(2) any party may apply to the court for leave to present additional evidence and the court, if it is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the agency, may order that the additional evidence be taken before the agency on conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file such evidence and any modifications, new findings, or decisions with the reviewing court . . . ”

Before a cause may be remanded to the agency with instructions that additional evidence be taken under the authority of § 19(d)(2), the court must be satisfied (1) that the additional evidence is material and (2) that there were good reasons for the failure of the party to present the evidence before the agency. Independence Savings and Loan Association v. Gonzales County Savings and Loan Association, 568 S.W.2d 463 (Tex.Civ.App.1978, writ ref’d n. r. e.).

The additional evidence which appellant urged the district court to order the Commission to consider consisted of certain seismic data. Those findings were in existence at the time of the Commission’s hearing, but were not introduced into the agency record. In its motion for rehearing filed with the Commission, appellant urged the Commission to reopen its hearing and reconsider the case in light of the seismic data. The Commission overruled the motion for rehearing.

The district court refused to allow appellant to introduce evidence that would show (1) the alleged materiality of the seismic data and (2) the alleged good reason for its failure to put that evidence into the record in the Commission’s hearing. The evidence tendered to show materiality and good reason appears in the record by bill of exception.

The seismic information was obtained from two seismic shot lines across the reservoir. The data contradicted Hudson’s location of the western segment of the fault defining the productive limits of the reservoir. The Commission, if it had considered the seismic data, could have reached a conclusion contrary to its previous conclusion. Appellant’s tendered evidence meets the test of materiality under art. 6252-13a, § 19(d)(2).

Appellant has not shown good reason for its failure to produce the seismic data in the Commission’s hearing. Appellant’s representative at the Commission’s hearing, the consulting petroleum engineer, testified on bill of exception that he had investigated Hughes’ filings with the Commission prior to the hearing and that those filings showed that the western segment of the fault ran in an east-west line without curving to the south. Because the Hughes filing showed a fault location similar to that contended for by appellant, the engineer was satisfied that there would be no contest as to the location of the western segment of the fault line. An examination of the hearing record shows that the petroleum engineer’s repose should have been short-lived. The very first witness was Hudson who proceeded to testify to a contrary location of the western segment of the fault. Appellant had the remainder of the hearing to marshal its evidence to rebut Hudson’s testimony.

The reason that the seismic data was not produced in the Commission’s hearing was shown by the petroleum engineer’s testimony on cross-examination on the bill. He testified that he knew of the existence of the seismic data and that it would support appellant’s view of the location of the fault. When asked about his failure to present the seismic information at the hearing, the engineer responded:

“A No, I believed there was substantial evidence in the record to support the finding of our interpretation. I did not believe there was substantial evidence in the record to support another adoption of a PELTO finding, but I believed that the record had sufficient evidence to support the findings that we had urged.
“Q So for that reason you didn’t put in the seismic data?
“A Correct.”

It is apparent that the petroleum engineer made a judgment call not to include the seismic data in the record of the original hearing. Viewed after-the-fact, the judgment call was erroneous. Errors in judgment made during the agency hearing cannot constitute good reason for ordering the Commission to consider additional evidence under art. 6252-13a, § 19(d)(2).

Appellant’s final point is that the district court erred in refusing to hold that appellant had been denied procedural due process by the Commission and in refusing to remand the cause to the Commission for that reason. The Commission did not violate due process by denying appellant’s motion for rehearing. Appellant had an opportunity to have all of its evidence considered by the Commission. The reason that the seismic data was not considered stemmed from the calculated tactic of appellant’s representative. The point of error is overruled.

The judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    David C. BODENMAN et ux., et al., Appellants, v. ALLANDALE BAPTIST CHURCH, INCORPORATED, Appellee.
    No. 12880.
    Court of Civil Appeals of Texas, Austin.
    Dec. 6, 1978.
    Rehearing Denied Jan. 10, 1979.
    John McAllen Scanlan, Scanlan & Buckle, Austin, for appellants.
    Doren R. Eskew, Eskew, Brady, Womack & Muir, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellants, homeowners in Allandale, a subdivision in the city of Austin, brought suit to enjoin appellee church from using lots 13 through 19 in Allandale, Section 4, for any purpose other than single-family residential.

After hearing, the trial court refused to grant a temporary injunction and we affirm this judgment.

Section 4 in Allandale is one of four sections of the entire Allandale subdivision. When subdivided, the lots therein were restricted to one-story, single-family dwelling units, except for garages and servant’s quarters. The restrictions proscribe the use of any of the lots for business or commercial purposes or for carrying on any trade or profession.

Appellants’ principal contention in this appeal is that the trial court erred and abused its discretion in failing to issue a temporary injunction. We think not.

At the outset of the testimony on the hearing for temporary injunction, appellee offered a stipulation that was accepted and agreed to by appellants, that: “[A]ll of the properties involved in the controversy in Section Four have been used for various church purposes, including allowing people who attend church to park their cars on the properties which front on Nasco Drive for many years”; and “that the church does not have any completed plans for the construction of any improvements on the properties which front Nasco Drive, that no construction contracts of any sort have been sought, signed or now pending; that the properties on Nasco Drive have been used . for various church purposes: educational purposes, nursery, that sort of thing, but all for church purposes; and that parking has occurred — has been occurring for about two and a half hours a week on Sunday morning on some of those properties.”

This case is controlled by the recent opinion of the Supreme Court in Davis v. Huey, 571 S.W.2d 859 (1978).

In Huey the Court stated that: “The appeal of an order granting or denying a temporary injunction is an appeal from an interlocutory order, which is expressly authorized by Article 4662, Texas Revised Civil Statutes Annotated. Accordingly, the merits of the underlying case are not presented for appellate review. 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.” Id. at 861.

The Court further stated in Huey that it “will not assume that the evidence taken at a preliminary hearing will be the same as the evidence developed at a full trial on the merits,” and that, at such hearing, the only question before the trial court is whether the applicant is entitled to preservation of the status quo on the subject matter of the suit pending trial on the merits. The appellate court may not substitute its judgment for that of the trial court. An abuse of discretion does not exist where the trial court bases its decisions on conflicting evidence. Davis v. Huey, supra; Zmotony v. Phillips, 529 S.W.2d 760 (Tex.1975).

Here, as in Huey, no findings of fact or conclusions of law were filed; therefore, the trial court judgment must be upheld on any legal theory supported by the record.

Turning to the facts before us, appellee first began operation as a church in 1950 and has been in continuous operation ever since. The parties hereto stipulated in open court that the properties involved in the controversy in Section 4 have been used for various church purposes for many years. Faced with this stipulation, the trial court could have easily concluded that the stipulation raised the legal theory of waiver of restrictions by appellants. Zmotony v. Phillips, supra.

Consequently, the status quo at the time the suit was brought was that the lots on Nasco Drive owned by appellee had been used and were being used for church purposes for some period of time before the suit was brought.

We also overrule appellants’ points concerning the refusal of the trial court to admit certain letters and an alleged conversation with church officials. Proof of the conversation was offered for the purpose of showing that there had been only conditional consent by a local resident to violation of restrictions on several lots not in controversy. The letters were intended to refute waiver in that they show objection by residents in early 1978. Even should the trial court have been in error in refusing to admit this testimony under Tex.R.Civ.P. 434, it was harmless error, as it was not reasonably calculated to cause the rendition of an improper judgment.

The judgment of the trial court is in all things affirmed.

Affirmed.

SHANNON, J., not participating.

      . Id. at 9; (citing Houston Belt & T. Ry. Co. v. Texas & New Orleans R. Co., 155 Tex. 407, 289 S.W.2d 217 (1956); Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953)).


author: CADENA, Chief Justice.

text:
    STEVES SASH & DOOR COMPANY, Appellant, v. WBH INTERNATIONAL, Appellee.
    No. 16005.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 6, 1978.

      Charles J. Muller, III, San Antonio, for appellant.
    Marvin Champlin, Law, Snakard, Brown & Gambill, Fort Worth, for appellee.
   OPINION

CADENA, Chief Justice.

Plaintiff, Steves Sash & Door Company, appeals from an order of the district court sustaining the plea of privilege filed by defendant WBH International, a corporation, and one of three defendants below. Pleas of privilege filed by the other two defendants in the case were also sustained, but plaintiff does not here complain of the action of the trial court relating to such other defendants.

Plaintiff’s suit is cast in the form of a suit on a sworn account for goods and services rendered to WBH International, hereafter referred to as “defendant.” Defendant filed its plea of privilege and a verified denial. Plaintiff, in its controverting plea, claimed that the suit was properly filed in Bexar County under Subdivision 23 of Article 1995, Texas Revised Civil Statutes Annotated. Insofar as this case is concerned, it may be rather broadly stated that Subdivision 23 permits a suit against a corporation to be filed in the county in which the cause of action or part thereof arose. A plaintiff who relies on Subdivision 23 to defeat a defendant’s claim of privilege must allege and prove, by a preponderance of the evidence, facts establishing all the elements of his cause of action against such defendant. See Employers Casualty Co. v. Clark, 491 S.W.2d 661, 662 (Tex.1973); 1 R. McDonald, Texas Civil Procedure § 4.30.2, at 518 (rev. 1965). Where the cause of action is a suit on a sworn account, such .plaintiff must plead and prove (1) the specific character and number of the goods involved; (2) the sale of each item and the amount and date thereof; (3) the terms and conditions of the various sales; (4) the date of delivery of each item; (5) the justness of the account, that is, that the prices charged were in accordance with the agreement of the parties or were the reasonable and customary charges for such goods; and (6) the amount due and unpaid. See Blue Bell, Inc. v. Isbell, 545 S.W.2d 563, 565 (Tex.Civ.App.—El Paso 1976, no writ); Vahlsing Christina Corp. v. Ryman Well Service, Inc., 512 S.W.2d 803, 809 (Tex.Civ.App.—Corpus Christi 1974, no writ); Hilton v. Musebeck Shoe Co., 505 S.W.2d 341, 343 (Tex.Civ.App.—Austin 1974, writ ref’d, n. r. e.); Dockrey v. Higginbotham Bartlett Co., 493 S.W.2d 254, 255 (Tex.Civ.App.—Eastland 1973, no writ); Brooks v. Eaton Yale and Towne, Inc., 474 S.W.2d 321, 322 (Tex.Civ.App.—Waco 1971, no writ); California Chemical Co. v. Sasser, 423 S.W.2d 347, 348 (Tex.Civ.App.—Corpus Christi 1967, no writ); Bosco Bolt, Nut, Screw Co. v. Mercer Construction Co., 412 S.W.2d 322, 325 (Tex.Civ.App.—Corpus Christi 1967, no writ); Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357, 359 (Tex.Civ.App.—Dallas 1963, no writ).

Plaintiff’s petition alleges that the suit is founded upon claims “pursuant to an open account for goods, wares, merchandise and a liquidated money demand” resulting from dealings between the parties “for materials furnished on which a systematic record was kept.” This pleading further alleges that on or about the various dates shown on the verified itemized statement of the account attached to the petition, plaintiff sold and delivered to defendant all of the various items shown on such statement. Plaintiff also alleges that defendant agreed to pay the prices charged as set out in the attached account and that such charges were reasonable. Attached to the petition was a “statement of account” which consisted of a listing of eight unpaid invoices with the dollar amount of each invoice shown. The attached invoices contain descriptions of the goods consisting of abbreviations and symbols. Examples of the entries are: “Back Ordered from S.O. # 373 Invoice # 9672, dated 8-30-77”; “PD ⅜ X % X 1¾ LH HW 6 P15 D9 Line Item # 38, Reg. No. CH-S60-09-0066”; and “¾ X % X 1⅜ UC RH HW5 F14 D4." Plaintiff’s comptroller was the only witness who testified at the hearing. He identified plaintiff’s exhibits 1 and 2, which were received in evidence, as plaintiff’s ledger sheets and invoices. The evidence, perhaps, supports the conclusion that such exhibits were business records in the custody of the comptroller.

Article 3737e permits the introduction of business records as an exception to the hearsay rule. Tex.Rev.Civ.Stat.Ann. (Vernon Supp. 1978-1979). The statute makes a memorandum or record of an act, event, or condition competent evidence of the occurrence of such act, event, or condition when the identity and mode of preparation of the memorandum are established as provided in the statute. Among the things which must be shown by the party offering the record are that “[i]t was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such a memorandum or record or to transmit information thereof to be included in such a memorandum or record.” Id. at § 1(b). In Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 305 (Tex.1962), the Supreme Court required that “[s]ome employee or representative who either made the record or transmitted the information to another to record must have had personal knowledge of the act, event or condition in order for such record to be admissible under the business records exception to the hearsay rule.” (Emphasis original). Where this requirement is not met, the records are not admissible. See Hanson Southwest Corp. v. Dal-Mac Construction Co., 554 S.W.2d 712 (Tex.Civ.App.—Dallas 1977, writ ref’d, n. r. e.); Cooper Petroleum Co. v. LaGloria Oil and Gas Co., 436 S.W.2d 889, 891 (Tex.1969). Here, there is no evidence indicating that it was the regular course of plaintiff’s business for one or more employees who had personal knowledge of the act, event or condition to transmit such information for inclusion in the ledger sheets or invoices.

The ledger sheets and invoices were clearly inadmissible because of plaintiff’s failure to lay the required statutory predicate. The fact that defendant failed to object is irrelevant. Absent the required showing, the exhibits were clearly hearsay and lacking in probative force. Such exhibits were insufficient to establish even a prima facie case and, in the absence of other testimony tending to establish the elements of plaintiff’s cause of action, the trial court properly sustained defendant’s plea of privilege.

In any event, the ruling of the trial court was correct. There is no evidence in the record which explains the symbols and abbreviations used in the ledger sheets and invoices. The exhibits attached to plaintiff’s petition, including the ledger sheets and invoices, are not sufficient to establish that the systematic record required by Rule 185 has been kept so as to constitute prima facie evidence of the debt. Tex.R.Civ.P. The account, ledger sheets, and invoices fail to show with reasonable certainty the nature of each item, the date and the charge therefor. Williamsburg Nursing Home, Inc. v. Paramedics, Inc., 460 S.W.2d 168, 169-70 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ).

The judgment of the trial court is affirmed.