author: STEAKLEY, Justice.

text:
    EXXON CORPORATION, Petitioner, v. Sue BRECHEEN et al., Respondent.
    No. B-5168.
    Supreme Court of Texas.
    July 7, 1975.
    Rehearing Denied Sept. 24, 1975.

      Fulbright & Jaworski, L. S. Carsey, David J. Beck and Adele Black, Judy L. R. Fernald, Eino Zapata, Robert D. McGee, Houston, for petitioner.
    Frank Stovall, Houston, Glenn & Thomas, Allen D. Glenn, Abilene, for respondent.
   STEAKLEY, Justice.

On March 10, 1970, William D. Brecheen, Jr., a tank truck driver for Oil Transport Company, was injured by being sprayed in the face with oil while waiting for his truck to be loaded on the premises of Exxon’s Baytown Refinery. On August 17,1971, he filed suit to recover for his personal injuries. On December 19,1972, Brecheen committed suicide with a rifle, leaving a note to his wife, Sue Brecheen. A suggestion of death was thereafter filed and Sue Bre-cheen moved that the suit proceed as an action for damages under the Survival Statute, Vernon’s Tex.Rev.Civ.Stat.Ann. art. 5525, and as a suit under the Wrongful Death Act, Tex.Rev.Civ.Stat.Ann. art. 4671 et seq.

Upon trial, the jury found that Exxon was guilty of negligence proximately causing “the occurrence in question.” Additionally, the jury found “that the oil spray incident in question caused William Bre-cheen to have the mental illness or disease made the basis of this suit”; and “that the oil spray incident in question caused the death of William Brecheen.” Based upon these findings, the trial court rendered judgment for Sue Brecheen in the capacities which she sued, and against Exxon, in the respective sums of $6,000.95, for hospital, medical and funeral charges; $55,000 under Article 5525; $166,000.95 under Article 4671; and for Transport Insurance Company in the sum of $18,680.56 under its subrogation claim for sums paid Brecheen for Workmen’s Compensation, medical and hospital Benefits. This judgment has been affirmed by the Court of Civil Appeals, Exxon Corporation v. Brecheen, 519 S.W.2d 170. Exxon is our Petitioner here.

Exxon presents three groups of points. Two of these, which if sustained would require a reversal and a rendition for Exxon, are first considered and these we overrule; the third group, which we sustain, requires that we reverse the judgments below and remand the cause for a new trial.

Exxon’s first group of points presents its suicide defense. The basic argument as to this is that Exxon is not liable for the suicide under any theory because there was no jury finding and the evidence failed to conclusively establish that Brecheen was without conscious volition and under an uncontrollable impulse at the time he took his life. Exxon cites principally Jones v. Traders & General Ins. Co., 140 Tex. 599, 169 S.W.2d 160 (1943); Scheffer v. Railroad Co., 105 U.S. 249 (1881), and Tate v. Canonica, 180 Cal.App.2d 898, 5 Cal.Rptr. 28 (1960).

In oral submission, and by post-submission briefs, Exxon argues further that it could not reasonably have anticipated that Brecheen would commit suicide following the oil spray incident; that there must be evidence that the mental illness caused Bre-cheen’s suicide in the particular manner in which it occurred; and that the facts must establish that Brecheen’s act of suicide did not flow from a conscious, deliberate choice' on his part.

Sue Brecheen, on the other hand, says that the question is whether there is any evidence of probative value that Exxon’s negligence proximately caused Brecheen to become insane, and, if so, whether such insanity caused him to take his life through an uncontrollable impulse. She argues that where there is a negligent act under common law that proximately causes insanity, and in turn, such insanity leads to the suicide of the injured person, then the actor cannot be relieved of liability for the death as it flows naturally and foreseeably from the original act. So here, she says, the evidence establishes that the negligent act of Exxon caused Brecheen to become psychotic and rendered him devoid of realistic reasoning facilities; that this caused him to take his life through an uncontrollable impulse; and that his suicide was a part of an unbroken chain of events. She asserts that the recoveries here are consistent with Jones v. Traders & General Ins. Co., supra, and she relies particularly on the Restatement (Second) of Torts § 455 (1965), later considered.

The posture in which we are to consider the suicide defense of Exxon should be initially established. As noted before, the jury found that the negligence of Exxon proximately caused the oil spray incident that originally injured Brecheen and there is no attack on these findings. The jury further found that the oil spray incident caused Brecheen to suffer a mental illness or disease and that the oil spray occurrence caused his death. The only special instructions given to the jury in the court’s charge were the accepted definitions of negligence, ordinary care and proximate cause; the latter included the Texas elements of cause in fact and foreseeability. There was no objection to the manner of submission and no request by any party for additional or different issues or instructions. With respect to deemed findings thus arising, Exxon acknowledges in its post-submission brief that it is before this Court “as if there was a finding in the trial court that Mr. Bre-cheen’s death was proximately caused by Petitioner’s negligence.” As later stated, we adopt the Restatement view and upon trial following the remand we shall order, the case should be submitted in its terms.

We first review the evidence which is outlined in detail in the opinion of the Court of Civil Appeals. Brecheen’s injury occurred on March 10, 1970, when he was unexpectedly, and with severe impact, sprayed in the face by oil. He was standing on a platform engaged in conversation with another truck driver at which time a loading chute came lose from a nearby railroad tank car hatch and began to spray him and his companion. Brecheen testified by deposition prior to his death that he was hit “flush in the face” by the spray of oil, that the force of the impact knocked him against the rail of the loading platform and onto his hands and knees, that when the spray hit it was “like an explosion in my head” which “felt like it went in my eyes and out my ears” and that he was temporarily blinded and had to be led to the plant dispensary where he was cleaned and given pills for headaches.

Following treatment by the plant personnel, Brecheen picked up his loaded truck and proceeded to a Baytown motel where he spent the night. With the exception of a ringing in his ears, Brecheen’s night was uneventful, and he left for Abilene early the next morning. About 70 miles outside of Abilene, Brecheen took a headache pill which had been given to him at the Bay-town plant dispensary, and from then until sometime after that night, Brecheen had no recollection of his activities. His wife testified that Brecheen’s behavior was extremely peculiar that night, that he talked of needing help in dressing himself so as to get on the road early, that he kept falling down and lacked coordination and that she finally had to call her brother to help in calming him down. Following this, Brecheen’s behavior became more unnatural and erratic and he was plagued with medical problems for which several doctors could find no physical cause. He had no history of mental, psychotic or nervous problems prior to the accident.

In June, 1970, Brecheen commenced a series of consultations with Dr. Larry B. Summers, a family medical practitioner with special training in psychiatry.. He was hospitalized in the West Texas Medical Center from September 16 through October 13, 1970, during which time Dr. Summers diagnosed his condition as being a conversion reaction with an underlying schizophrenic reaction; and that his schizophrenia was a form of psychosis. He considered him to have a severe mental illness in which there had been no improvement “over a long period.” On December 30,1970, Brecheen was admitted to Timberlawn Psychiatric Hospital where he was treated by Dr. James Peden, a certified psychiatrist specializing in the practice of psychiatry. With respect to Brecheen, Dr. Peden found “.

The content of his thinking had a paranoid tenor to it, but primarily was made up of ruminations about changes in his body, his vision, the fusion of his vision, migrating type of headaches and other what appeared to be distortions of his image of himself.” He stated that Brecheen at that time did not have the capacity to adequately differentiate between that which was real and what his interpretation was of what was going on. He gave his impression that the patient was suffering from schizophrenia, which is “characterized by certain changes in the feeling and expressed feeling of the individual, certain changes in the way they associate things with each other, changes in the way they make decisions.” Those suffering from this illness are ambivalent and have “a tendency toward withdrawal or investment of their feelings within themselves, primarily, sort of living in a dream world or fantasy world.” He felt that the majority of the symptoms that Brecheen presented had a paranoid tenor or paranoid flavor to them. He gave an opinion that there was a causal relationship between the schizophrenia that he observed in Brecheen and the oil spraying incident which occurred in March of 1970.

Dr. Peden’s discharge diagnosis was of schizophrenia residual type, i. e., there continued to be evidence of defective functioning of Brecheen’s personality. Dr. Peden further testified that the stress and intense fear experienced by Brecheen was probably related to the fear that he was going to die, or be blind, or that he was going to be brain damaged.

Brecheen continued to be treated by Dr. Summers who last saw him on December 12, 1972. It was his view that Brecheen’s condition then was the same as during the prior two years. It was his testimony that Brecheen was laboring under the schizophrenic or psychotic state when he committed suicide on December 19, 1972, and that this schizophrenic state was the same condition under which Brecheen had been laboring since the injury on March 10, 1970. Both Dr. Peden and Dr. Summers expressed the opinion that there was a causal relationship between the schizophrenia and the oil spraying injury; and Dr. Summers expressed the further opinion that in reasonable medical probability there was a causal relationship between the oil spraying injury and the suicide.

There are contrary indications in the evidence from which it could be concluded that Brecheen was lucid at the time he committed suicide; and that his suicide was voluntary and not attributable to an insanity caused by his injury many months before. The note he left to his wife was coherent and the manner of self-destruction appeared to be deliberate. There is, however, no indication that Brecheen was suffering undue pain or was subject to pressures from which an individual would incline to free himself by self-destruction. There was no evidence that Brecheen had talked about or threatened suicide, or had exhibited suicidal tendencies, or that he was unnaturally preoccupied with death. Apart from the question of whether a person in his right mind would ever commit suicide, there is evidence that Brecheen’s state of mind was such that the fact finders could conclude that he no longer possessed the capacity to govern his conduct and was acting under an uncontrollable impulse when he destroyed himself.

The problem of death by self-destruction has arisen in three principal instances: claims under insurance policies excluding recovery if the insured died “by his own hand”; claims for death benefits under the provisions of Workmen’s Compensation statutes; and, as here, claims for damages in negligence and wrongful death actions.

As to the former, see Connecticut Mutual Life Ins. Co. v. Akens, 150 U.S. 468, 14 S.Ct. 155, 37 L.Ed. 1148 (1893); Mutual Life Insurance Co. of New York v. Terry, 82 U.S. (15 Wall.) 580, 21 L.Ed. 236 (1872); Voris v. T. E. I. A., 190 F.2d 929 (5th Cir. 1951); Cooper v. Massachusetts Mutual Life Ins. Co., 102 Mass. 227, 3 Am.Rep. 451 (1869); Newton v. Mutual Benefit Life Ins. Co., 76 N.Y. 426, 32 Am.Rep. 335 (1879); Van Zandt v. Mutual Benefit Life Insurance Co., 55 N.Y. 169, 14 Am.Rep. 215 (1873); Aetna Life Ins. Co. v. McLaughlin, 380 S.W.2d 101 (Tex.1964); Illinois Bankers’ Life Ass’n v. Floyd, 222 S.W. 967 (Tex.Com.App.1920, holding approved); Mutual Life Ins. Co. v. Walden, 26 S.W. 1012 (Tex.Civ.App.1894, writ dism’d).

The cases considering the problem of whether the family of a workman may receive Workmen’s Compensation benefits when he commits suicide are collected in Annot., Suicide as Compensable Under Workmen’s Compensation Act, 15 A.L.R.Sd 616 (1967). The distinction between what' became known as the Sponatski rule — the voluntary willful-choice test — formulated by the Massachusetts Supreme Court in 1915, In re Sponatski, 220 Mass. 526, 108 N.E. 466, and the chain-of-causation test formulated in other jurisdictions, is there drawn. It is pointed out in the annotation that the latter rule rejects the tort liability concept of fault which stresses intervening cause and substitutes therefor the chain-of-causation or “but for” test, together with the requirement of an uncontrollable compulsion to commit suicide. The compulsion, however, need not be abrupt or unpremeditated. The Workmen’s Compensation case of Jones v. Traders & General Ins. Co., supra, is generally cited as following the Sponatski rule. We have reviewed the problem in depth in Texas Employers’ Insurance Ass’n v. Saunders, 516 S.W.2d 242, this day announced; we there held that the death of a workman who committed suicide was not willfully intentional within the statutory preclusion of recovery.

The principal negligence cases are Scheffer v. Railroad Co., supra; Tate v. Canonica, supra; Daniels v. New York, N. H. & H. R. Co., 183 Mass. 393, 67 N.E. 424 (1903); Koch v. Fox, 71 App.Div. 288, 75 N.Y.S. 913 (1902); Orcutt v. Spokane County, 58 Wash.2d 846, 364 P.2d 1102 (1961), and Arsnow v. Red Top Cab Co., 159 Wash. 137, 292 P. 436 (1930).

With reference to Wrongful Death actions, an Annot., Civil Liability for Death by Suicide, 11 A.L.R.2d 751 (1950), contains this summary:

Where an action is brought under a wrongful death statute the general rule is that suicide constitutes an intervening force which breaks the line of causation from the wrongful act to the death and therefore the wrongful act does not render defendant civilly liable. However, where the wrongful act produces such a rage or frenzy that the person injured by defendant’s wrongful act destroys himself during such rage or frenzy, or in response to an uncontrollable impulse, the act is, according to many dicta, considered as within and a part of the line of causation from defendant’s wrongful act to the suicide and defendant’s act is held to be the proximate cause of the death. With respect to negligence cases, Profes-

sor Prosser states this summary:

Some difficulty has arisen in cases where the injured person becomes insane and commits suicide. Although there are cases to the contrary, it is the prevailing view that when his insanity prevents him from realizing the nature of his act or controlling his conduct, the suicide is to be regarded as a direct result, and no intervening force at all, or else as a normal incident of the consequences inflicted, for which the defendant will be liable. The situation is the same as if he should hurt himself during unconsciousness or delirium brought on by the injury. But if the man is sane, or if the suicide is during a lucid interval, when he is in full command of his faculties, but his life has become unendurable to him by reason of his injury, it is agreed in negligence cases that his voluntary choice is an abnormal thing, which supersedes the defendant’s liability. Prosser, Handbook of the Law of Torts, § 44, at 280-281 (4th ed. 1971).

A study of these authorities discloses a noticeable trend from the strict view of Scheffer v. Railroad Co., supra, — that a suicide is not a result naturally and reasonably to be expected or foreseen from a negligently inflicted injury — to the broader view represented in Orcutt v. Spokane County, supra, and Tate v. Canonica, supra, — that there may be liability if the negligent wrong causes mental illness which results in an uncontrollable impulse to commit suicide. This is in keeping with current and more advanced medical and psychiatric knowledge and understanding of human behavior. It is evident that a person may know that he is destroying himself while at the same time he is unable to control his physical acts. The suicide should not bar a claim notwithstanding it can be said that he knew the nature and consequences of his physical acts. Bo we disagree with the distinction Exxon would draw in arguing the absence of evidence of the extent of Bre-cheen’s derangement at the time he committed the act of suicide.

We are in agreement with the Restatement (Second) of Torts § 455, (1965), and adopt it as the rule in Texas:

§ 455. Acts Done During Insanity Caused by Negligent Conduct
If the actor’s negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it, the actor is also liable for harm done by the other to himself while delirious or insane, if his delirium or insanity
(a) prevents him from realizing the nature of his act and the certainty or risk of harm involved therein, or
(b) makes it impossible for him to resist an impulse caused by his insanity which deprives him of his capacity to govern his conduct in accordance with reason.

This is compatible with the Texas rule of foreseeability under which it is not required that the negligent actor anticipate just how injuries will grow out of the dangerous situation created by his negligence. See Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970); Enloe v. Barfield, 422 S.W.2d 905 (Tex.1967); Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); Sullivan v. Flores, 134 Tex. 55, 132 S.W.2d 110 (1939). See also Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1953).

By another group of points that would require a rendition in its favor if sustained, Exxon attacks the holding of the Court of Civil Appeals that sustained the action of the trial court in refusing to receive into evidence a purported release signed by Bre-cheen as a condition to entering the refinery premises. The document in question is headed “General Release and Agreement Regarding Traffic and General Instructions.” Thereunder appeared the following:

In consideration of the permission granted me by Humble Oil & Refining Company, Enjay Chemical Company, and Esso Research and Engineering Company at my request, to enter their Baytown plants or premises at the time shown in column 6 below, I, by my signature in column 1 below, do hereby release and discharge Humble Oil and Refining Company, Enjay Chemical Company and Esso Research and Engineering Company, their officers and employees, from all liability to me, my heirs and legal representatives for all loss, damage, injury, or death to me or my property caused in whole or in part by the negligence of said Humble Oil and Refining Company, En-jay Chemical Company, Esso Research and Engineering Company, their agents or employees, while I am at said plant or premises.
By my signature in column 1 below, I also acknowledge receipt of a copy of the above named companies’ traffic and general instructions Form No. 541-0015 and hereby state that I have read and understand said instructions.

Immediately under the above writing were a series of seven columns calling for the signatures of persons entering Baytown plants or premises, the company or employer represented, the vehicle license number, the MD order number, the name of the person authorizing entry, and the time of entry and departure. The signatures of 18 different persons appear on the document, one of which was that of Brecheen.

It is apparent from the face of the document in question, together with the deposition testimony of Brecheen prior to his death, that the purported release of liability for damages suffered by anyone signing the form and caused by the companies named, or by their agents or employers, is a routine form which all persons entering the premises are required to sign.

Without further writing, suffice to state that we are in agreement with the holding of the Court of Civil Appeals that the showing of disparity of bargaining power was such that it would be contrary to public policy to enforce the document as releasing Exxon [the successor to Humble] of its liability for the injuries negligently inflicted upon Brecheen.

As indicated earlier, we sustain Exxon’s group of points asserting that the trial court reversibly erred in excluding evidence establishing the ceremonial remarriage of Sue Brecheen. The admission of this evidence was mandated by Article 4675a that was added to Title 77, Revised Civil Statutes, 1925, as amended, by act of the Legislature which became effective April 9,1973. This legislative act was captioned “An act relating to the admissibility of certain evidence in a wrongful death action,” and provided as follows:

Art. 4675a. Proof of remarriage, etc.
In an action under this title, evidence of the actual ceremonial remarriage of the surviving spouse is admissible, if such is true, but the defense is prohibited from directly or indirectly mentioning or alluding to any common-law marriage, extramarital relationship, or marital prospects of the surviving spouse.
Acts 1973, 63rd Leg., p. 43, ch. 29, § 1.

The statute became effective after Brecheen’s death but prior to the trial of this case. We agree with the holdings of the Court of Civil Appeals that Article 4675a is procedural and remedial in nature, and is constitutional; that the statute governs the proceedings in litigation pending on its effective date; and that the trial court erred in excluding evidence of the remarriage.

Our disagreement is with the further ruling of the Court of Civil Appeals that the error was harmless, and not reversible, because it could not be said that knowledge of the remarriage would have caused the jury to reduce the damage award. The Legislature has decreed in clear and explicit terms that evidence of the actual ceremonial remarriage of a surviving spouse is admissible in the statutorily authorized wrongful death action. The legislative determination forecloses judicial inquiry into the effect upon the fact finder of evidence that the surviving spouse has ceremonially remarried. It is the duty of the courts to apply the law as declared by the Legislature, and to give effect to its stated purpose or plan. See Railroad Commission of Texas v. Miller, 434 S.W.2d 670 (Tex.1968); State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279 (1958). Article 4675a would be rendered ineffectual by an independent judicial determination that disregard of its terms in a given instance was harmless error.

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    The STATE of Texas, Petitioner, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent.
    No. B-5327.
    Supreme Court of Texas.
    July 9, 1975.
    Rehearing Denied Sept. 24, 1975.

      John L. Hill, Atty. Gen., Stockton, Fisher & Willatt, Mike Willatt, Austin, for petitioner.
    Clark, Thomas, Denius, Winters <& Shapiro, Donald Scott Thomas, Austin, Sears & Burns, Will Sears, Houston, Ford W. Hall, Dallas, for respondent.
   STEAKLEY, Justice.

Southwestern Bell Telephone Company, Respondent, is a public utility furnishing telephone service to the people of Texas, interstate and intrastate. At this time it is statutorily unregulated as to the intrastate rates it charges in Texas.

On January BO, 1975, Bell announced a long distance intrastate telephone rate increase to become effective March 1, 1975. It was designed to net Bell additional annual revenue of approximately 45 million dollars. On February 7, 1975, suit was instituted by the Attorney General of Texas in the name of the State of Texas to enjoin the proposed rate increase as unreasonably high. The State sought to temporarily enjoin the effectuation of the announced rate increase, pending final trial. After hearing, the trial court did so. An appeal was taken by Bell and the Court of Civil Appeals rendered judgment dissolving the temporary injunction. We granted writ of error at the instance of the State. We reverse the judgment of the Court of Civil Appeals and reinstate the temporary injunction.

The view stated by the Court of Civil Appeals was that the determination in court sought by the State, i. e., that the rate increase was unreasonably high, called for the exercise of an impermissible legislative function; or, as phrased by the court, would be “tantamount to judicial ratemaking.” This was thought to be violative of the separation of powers ordained by Article 2, § 1, of the Texas .Constitution, Vernon’s Ann.St. 523 S.W.2d 67.

We first narrow the issue before us at this stage of the proceeding. We are not now concerned with whether or not, upon final trial, the State will be successful in establishing the unreasonableness of the intrastate rates proposed by Bell. The action under appellate review here is the exercise by the trial court of the discretionary power to hold in abeyance the effectiveness of the rate increase, pending trial, thereby maintaining the status quo. We have defined the status quo as being the last, actual, peaceable, non-contested status that preceded the pending controversy. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953). We have also said that to warrant issuance of a temporary injunction, the applicant need only show a probable right and probable injury; that the applicant is not required to establish that he will finally prevail in the litigation; that the judgment of the trial court will be upheld unless we are convinced that it represents a clear abuse of discretion; and that there is no abuse of discretion if the evidence tends to sustain the cause of action as alleged. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex.1964); Transport Co. of Texas v. Robertson Transports, supra; Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460 (1952); Southwestern Greyhound Lines v. Railroad Com’n, 128 Tex. 560, 99 S.W.2d 263 (1936); Annot. 109 A.L.R. 1235 (1937).

We have also recognized the risk of injustice in the immobilization of a defendant from a course of conduct he may have the legal right to pursue; and that this calls for the further rule that the trial court abuses its discretion when the law is misapplied to established facts, or when the evidence does not reasonably support the conclusion that the applicant has a probable right of recovery. City of Spring Valley v. Southwestern Bell Tel. Co., 484 S.W.2d 579 (Tex.1972); Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961); Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1936).

This points up Bell’s essential position. It asserts that until the Legislature subjects it to intrastate rate regulation, it may charge as it wills for its intrastate telephone service; that the Courts are without jurisdiction to test the reasonableness of its rates at the suit of the State through the Attorney General; that the Attorney General is without lawful power to bring suit attacking the reasonableness of its rates; and that there was no factual support for the temporary injunction in the evidence offered by the State.

Bell is a privately owned public utility supplying a necessary communication service in which, for all intents and purposes, it enjoys a monopoly. It is a business affected with a public interest. This concept is expressed in Munn v. Illinois, 94 U.S. 113, 126, 24 L.Ed. 77 (1876):

Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.

As such, Bell is under the major legal obligations of offering its services without undue discrimination, and at reasonable rates. As to the first, it is settled that the obligation of a utility enjoying a monopoly, whether private or public, to fix non-discriminatory rates is enforceable in the courts. It was said in City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622, 624-5 (1952):

The common-law rule that one engaged in rendering a service affected with a public interest or, more strictly, what has come to be known as a utility service, may not discriminate in charges or service as between persons similarly situated is of such longstanding and is so well recognized that it needs no citation of authority to support it. The economic nature of the enterprise which renders this type of service is such that the courts have imposed upon it the duty to treat all alike unless there is some reasonable basis for a differentiation. .
The utility consumer is thus at the mercy of the monopoly and, for this reason, utilities, regardless of the character of their ownership, should be and have been, subjected to control under the common-law rule forbidding unreasonable discrimination.

As to the second, it is held that in the absence of rate regulation by some authorized body, state or municipal, the telephone company may prescribe and apply its own rates, subject to the dictates of reasonableness and justice. Southwestern Bell Tel. Co. v. Houston Ind. Sch. Dist., 397 S.W.2d 419 (Tex.1965); City of Nassau Bay v. Nassau Bay Telephone Co., Inc., 517 S.W.2d 613 (Tex.Civ.App.1974, writ ref’d n. r. e.); General Tel. Co. of Southwest v. Cities Littlefield, 498 S.W.2d 375 (Tex.Civ.App.1973, writ ref’d n. r. e.); City of Carrollton v. Southwestern States Tel. Co., 381 S.W.2d 401 (Tex.Civ.App.1964, writ ref’d n. r. e.); City of Houston v. Memorial Bend Utility Co., 831 S.W.2d 418 (Tex.Civ.App.1960, writ ref’d n. r. e.). This legal obligation upon the telephone company — that of not exacting exorbitant or unreasonable charges for its services — would be meaningless if there were no judicial redress for its violation. Of course, the fixing or revision of rates is not a judicial function and under our system of separation of powers the courts do not and cannot regulate rates of public utilities; but the determination of whether rates fixed by the utility are unreasonably high is a judicial function.' In granting the relief here sought, the Court does not fix a rate or prescribe a future charge; it does no more than determine whether the rate as fixed by Bell is, or is not, lawful. As observed in Interstate Com. Commission v. Railway Co., 167 U.S. 479, 499, 17 S.Ct. 896, 900, 42 L.Ed. 243 (1897):

It is one thing to inquire whether the rates which have been charged and collected are reasonable — that is a judicial act; but an entirely different thing to prescribe rates which shall be charged in the future — that is a legislative act.

The distinction thus drawn is applicable to rates fixed by the utility as well as to those otherwise prescribed. Such fact does not convert the function exercised by the courts from judicial to legislative. See also Ball v. Texarkana Water Corp., 127 S.W. 1068 (Tex.Civ.App.1910, no writ).

The United States Supreme Court has addressed the other side of the coin, i. e., when the utility invokes judicial relief from prescribed rates claimed by the utility to be too low and hence to be violative of due process and equal protection of the law. In Chicago, Milwaukee and St. Paul Railway Co. v. Minnesota, 184 U.S. 418, 458, 10 S.Ct. 462, 467, 38 L.Ed. 970 (1890), the utility attacked a statute of Minnesota that, as interpreted by the Supreme Court of the State, provided that rates prescribed by a State commission shall be final and conclusive. The Court held the statute to be in conflict with the Constitution of the United States. In doing so, the majority wrote:

. The question of the reasonableness of a rate of charge for transportation by a railroad company, involving as it does the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, . . . (Emphasis added).

It is noteworthy that the three dissenting Justices advanced the view that a judicial question as to the reasonableness of rates arises only when there has been legislative inaction.

The Court also wrote in Reagan v. Farmers’ Loan & Trust Company, 154 U.S. 362, 399, 14 S.Ct. 1047, 1055, 38 L.Ed. 1014 (1894):

These cases all support the proposition that while it is not the province of the courts to enter upon the merely administrative duty of framing a tariff of rates for carriage, it is within the scope of judicial power and a part of judicial duty to restrain anything which, in the form of a regulation of rates, Operates to deny to the owners of property invested in the business of transportation that equal protection which is the constitutional right of all owners of other property.

See also C. & L. Turnpike Road v. Sandford, 164 U.S. 578, 17 S.Ct. 198, 41 L.Ed. 560 (1896) where it was noted that a court determines whether rates are unjust to a utility without assuming itself to prescribe rates.

The courts are no less open to determine whether rates fixed by a utility are reasonable and just for the public. As said in Smyth v. Ames, 169 U.S. 466, 547, 18 S.Ct. 418, 434, 42 L.Ed. 819 (1898):

What the company is entitled to ask is a fair return upon the value of that which it employs for the public convenience. On the other hand, what the public is entitled to demand is that no more be exacted from it for the use of a public highway than the services rendered by it are reasonably worth.

And in C. & L. Turnpike Road v. Sandford, supra:

. stockholders are not the only persons whose rights or interest are to be considered. The rights of the public are not to be ignored. It is alleged here that the rates prescribed are unreasonable and unjust to the company and its stockholders. But that involves an inquiry as to what is reasonable and just for the public. . . . The public cannot properly be subjected to unreasonable rates in order simply that stockholders may earn dividends. ... So that the right of the public to use the defendant’s turnpike upon payment of such tolls as in view of the nature and value of the service rendered by the company are reasonable, is an element in the general inquiry whether the rates established by law are unjust and unreasonable.

We do not agree with the argument of Bell that the court adjudicates when it protects a utility by enjoining a rate as too low; but that the court legislates when it protects the public by enjoining a rate as too high. Nor do we subscribe to Bell’s contention that under our decisions injunctive relief may be sought in the courts only where the utility seeks redress from a violation of constitutional guarantees and that judicial relief is unavailable to protect the public from rates Bell fixes that are unreasonably high. We hold that the courts have jurisdiction to make this determination, and that in so doing they will not be exercising a legislative function.

It is our further opinion that the Constitution of Texas confers on the Attorney General the authority to institute and maintain suit in the name of the State to restrain Bell from exacting unreasonably high charges for its intrastate telephone services in Texas, if such be the case.

Article IV, Section 22 of the Constitution of Texas provides:

The Attorney General . .. . shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party, and shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharf-age not authorized by law. He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law.

Bell collects tolls for the use of its intrastate telephone service, see Southwestern Telegraph & Telephone Co. v. State, 109 Tex. 337, 207 S.W. 308 (1918); and the law does not authorize Bell to demand or collect from the public unreasonably high charges based on rates that would be extortionate to its subscribers. This Court emphasized in State v. Farmers’ Loan & Trust Co., 81 Tex. 530, 17 S.W. 60 (1891), that the Attorney General may institute and maintain suit to prevent the exercise by a corporation of a power not conferred by law when it is made to appear that the exercise of the power by the corporation in question will be hurtful to some interest essentially public. It is self-evident, in our view, that the demand and collection by Bell of unreasonably high — and hence unlawful — charges for the use of its intrastate telephone service by the people of Texas would be an abuse of its corporate power as a public utility, the prevention of which would subserve the public interest. The Attorney General is authorized to take action in the courts to enjoin this being done. Cf. State v. St. Louis S. W. Ry. Co. of Texas, 197 S.W. 1006 (Tex.Civ.App.1917), rev’d on other grounds, 113 Tex. 570, 261 S.W. 996 (1924); Western Union Telegraph Co. v. State, 121 S.W. 194 (Tex.Civ.App.1909) rev’d on other grounds, 103 Tex. 306, 126 S.W. 1197 (1910); Queen Ins. Co. v. State, 22 S.W. 1048 (Tex.Civ.App.1893), rev’d on other grounds, 86 Tex. 250, 24 S.W. 897 (1898); State v. Teachers Annuity Life Ins. Co., 149 S.W.2d 318 (Tex.Civ.App.1941, writ ref’d); Day v. State, 489 S.W.2d 368 (Tex.Civ.App.1972, writ ref’d n. r. e.); Security State Bank v. State, 169 S.W.2d 554 (Tex.Civ.App.1943, writ ref’d w. o. m.). The decisions upon which Bell strongly relies — Garcia v. Laughlin, 155 Tex. 261, 285 S.W.2d 191 (1955); State v. Reagan County Purchasing Co., 186 S.W.2d 128 (Tex.Civ.App.1944, writ ref’d w. o. m.); and State v. Harney, 164 S.W.2d 55 (Tex.Civ.App.1942, writ ref'd w. o. m.) did not involve the problem now before us and are not controlling.

Finally, Bell says the evidence offered by the State at the hearing for temporary injunction was grossly insufficient and proved nothing. As noted earlier, the State was not required to show at the temporary injunction stage that it will finally prevail in establishing that the rates fixed by Bell are unlawful as unreasonably high. Indeed, its task in this regard will be formidable. An exhaustive study of the Bell System by the Federal Communications Commission is reflected in its report, In the Matter of American Telephone & Telegraph Co. and The Associated Bell System Companies, etc., 9 F.C.C.2d 30 (1967). It is there reported that “A.T.&T. [the owner of all the stock of Southwestern Bell Telephone Company] is the world’s largest company in assets — $35 billion. It grosses over $12 billion a year, employs about 800,000 men and women, is owned by more than 3 million shareholders of 539 million shares worth about $21 billion, and purchases every year some $1.6 billion in goods and services from more than 45,000 suppliers. This makes it a larger operation than all but very few national governments.”

In speaking of the magnitude of the task of regulating the Bell System, the Federal Communications Commission said:

Indeed, lack of resources is an even more serious problem for State and municipal regulatory bodies. And the splintering of jurisdiction between the Federal Government and the States undoubtedly contributes further to the deterioration of effective, coordinated regulation. A.T.&T. is so much bigger, and better financed, than any government agency it confronts that even the process of selecting which information it will offer the regulator gives the whole operation a substantial aura of self-evaluation.

It is recognizea that in fixing an intrastate rate there must be a separation or allocation of rate making factors in view of the fact that Bell’s major properties are used in common in both interstate and intrastate services. The United States Supreme Court emphasized in Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 51 S.Ct. 65, 75 L.Ed. 255 (1930), that a separation of telephone property, revenues, and expenses between intrastate and interstate operations is essential to rate determination as to each. In speaking of the difficulty of doing so, the Court observed:

" s * While the difficulty in making an exact apportionment of the property is apparent, and extreme nicety is not required, only reasonable measures being essential * * *, it is quite another matter to ignore altogether the actual uses to which the property is put. It is obvious that, unless an apportionment is made, the intrastate service to which the exchange property is allocated will bear an undue burden — to what extent is a matter of controversy. We think that this subject requires further consideration, to the end that by some practical method the different uses of the property may be recognized and the return properly attributable to the intrastate service may be ascertained accordingly.

The record indicates that this essential prerequisite to the fixing of the intrastate rates under attack was not observed by Bell. Illustrative of this are the responses of Bell to certain requests of the State. The following examples recited in the State’s Post Submission Brief are not challenged by Bell in its Brief in Reply.

The State requested “documents explaining the separations procedures used by the Company to arrive at the interstate, intrastate, and local rate base.” The Company responded that “regulatory separations in Texas identifying interstate and local rate bases employed the principles and procedures contained in the February, 1971 Separations Manual. This Manual is a product of the NARUC-FCC Cooperative Committee on Communications. No separation of rate base to intra-state toll is performed by Southwestern Bell in Texas. A copy of the Separations Manual is provided in response to that request.”

The State requested schedules or documents showing the rate of return the Company is seeking on its intra-state toll operations with copies of all internal justification or economic studies supporting this rate of return. The Company responded that “there is no such documentation, since our intention to raise intra-state long distance rates is not based on required intra-state rate of return, per se.”

„ , „ , , The State requested schedules or documents showing the Company’s intra-state toll rate based for the last year available at original cost and fair value.” The response from the Company was that “this information requested is not available from records kept in the regular course of our business.”

It is fairly inferable from the testimony of representatives of Bell that the amount of the increase — $45,000,000 annually — was arbitrarily developed in the St. Louis office of Bell as the desired amount of additional revenue to be derived from its intrastate operations in Texas, with the rates to be accordingly adjusted; and that the increase was designed to raise the rate of return for the company in all its operations. This increase was sought to be justified on the basis of rising inflation and in order to attract new capital. The expert witness presented by the State testified that his studies indicated that the return from the rate increase on intrastate long distance operations would be in excess of 17 per cent and could go as high as 20 per cent; and that there is a strong probability that the increase is unreasonably high. Without undertaking a detailed recitation, we hold that the evidence of the State was sufficient to invoke the discretionary power of the trial court to temporarily enjoin Bell from placing in effect the rate increase.

We agree with Bell that the temporary injunction order of the trial court is too broad in its terms reading as follows: “It is accordingly ordered that the Defendant, Southwestern Bell Telephone Company, be and it is hereby temporarily restrained pending hearing hereon from increasing the intra-state long distance rates charged to its Texas customers . . . We therefore reverse the judgment of the Court of Civil Appeals and modify the judgment of the trial court so as to temporarily enjoin Southwestern Bell Telephone Company from placing in effect the long distance intrastate telephone rate increase announced to become effective March 1, 1975, pending final trial. The judgment of the trial court as modified is affirmed.

WALKER, J., not sitting,

      . House Bill 819 of the 64th Texas Legislature enacted the Public Utilities Commission Bill, under which Bell, as well as other utilities will be statutorily regulated. The regulatory commission will not, however, assume its duties until January 1, 1976, and its jurisdiction over rates of public utilities is postponed until September 1, 1976.

      . The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confined to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.


author: DENTON, Justice. WALKER, Justice

text:
    Claude W. RUSSELL, Administrator, Petitioner, v. Branch R. MOELING, Respondent.
    No. B-5129.
    Supreme Court of Texas.
    July 16, 1975.
    Rehearing Denied Sept. 24, 1975.

      ' Lane, Savage, Counts & Winn, Edward B. Winn and G. Ward Beaudry, Dallas, for petitioner.
    Carter, Jones, Magee, Rudberg, Moss & Mayes, John E. Agnew, Dallas, for respondent.
   DENTON, Justice.

A named executrix under a decedent’s prior will, brought this suit to collect attorneys’ fees and expenses, following an unsuccessful contest of the probate of the decedent’s later will. A summary judgment was rendered by the trial court denying allowance of the attorneys’ fees and expenses. However, the court of civil appeals reversed and remanded the cause to the district court, holding that the executrix is entitled to reasonable attorneys’ fees if findings are secured to the effect that she had attempted to probate the earlier will in good faith and with just cause. Tex. Civ.App., 517 S.W.2d 912. We reverse the judgment of the court of civil appeals and affirm the judgment of the district court.

Mayme Cherry died in December of 1969, leaving two wills; one dated November, 1965, and a second dated March, 1969. The executrix named in the 1965 will offered that instrument for probate while Claude Russell offered the 1969 will for probate. The probate court probated the 1965 will. However, upon appeal the district court overturned that action and ordered the probate of the later will, appointing Russell the administrator with will annexed.

Subsequently, the executrix named in the 1965 will applied to the probate court for allowance of attorneys’ fees and expenses incurred in her unsuccessful attempt to have the earlier will probated. Russell contested the application, but the probate court awarded some $24,000 in attorneys’ fees and expenses to the executrix. This order of the probate court was reversed by the district court which granted Russell’s motion for summary judgment. Upon appeal to the court of civil appeals, the trial court judgment was reversed and the cause was remanded to make findings with respect to “good faith” and “just cause” which are necessary to an award of attorney fees and expenses for an executor under Section 243 of the Probate Code, V.A.T.S.

In prosecuting this appeal from the action taken by the court of civil appeals, the administrator of the will admitted to probate presents basically two arguments why the attorneys’ fees and expenses should not be awarded to the executrix of the earlier will. First, that this claim for attorneys’ fees should have been brought in the original will contest and that such cannot be now undertaken; and secondly, that the executrix cannot seek attorneys’ fees for her counsel under the statutory provision in the probate code since her attorneys, due to a contingent fee agreement, are not owed anything by the executrix.

In dealing with the administrator’s second argument we look to Section 243 of the Probate Code:

When any person designated as executor in a will, or as administrator with the will annexed, defends it or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney’s fees, in such proceedings.

The import of the statute is clear: the executor or administrator “shall be allowed out of the estate his necessary expenses and disbursements.” The purpose then is to pay the cost of attorney’s fees that are owed by the executor or administrator, and the allowance is not to the attorney, but to the administrator. See Thomas’ Estate v. Fallen, 172 S.W.2d 118 (Tex.Civ.App. — Beaumont 1943, writ ref’d w. o. m.). We are presented here, however, with a situation where the unsuccessful executrix of the 1965 will and her attorneys had entered into a contingent fee agreement which provided that if the probate of the 1965 will was successful, the attorneys were to receive a percentage of all moneys they recovered. The earlier will was not probated and therefore the executrix named therein was not faced with any expense for the legal work that had been done since nothing was recovered. Young v. Grisham, 163 S.W.2d 842 (Tex.Civ.App. — Eastland 1942, writ ref’d w. o. m.). Consequently, under the terms of Section 243, the estate could not be held liable for those attorneys’ fees.

With reference to the administrator’s argument to the effect that any claim for attorneys’ fees and expenses must be brought, if at all, in the original will contest, we must turn first to this court’s decision in Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327 (1939). The precise question presented in that case was set out by the court as follows:

Can a person named executor in a will offer such will for probate, and, after its probate is refused on several grounds (one of which is that the executor and other beneficiaries named in the purported will had unduly influenced the maker thereof to execute same), in a later proceeding filed by him be allowed costs and reasonable attorneys’ fees — the court in the previous proceeding having entered a final judgment whereby all costs involved in the proceedings to probate the will had been taxed against said executor?

The holding in Huff, which denied to the executor the right to seek attorneys’ fees in a subsequent proceeding, was construed by the court of civil appeals opinion in the instant case as one turning entirely on the fact that the executor had been found guilty of exercising undue influence upon the testator. We do not agree. The Huff decision did cite several cases wherein an executor was denied any expenses, regardless of when they were asserted, because of the existence of undue influence having been exercised by the executor upon the testator. However, the decision not to allow an executor to bring a subsequent suit to recover attorneys’ fees for an unsuccessful attempt to probate a will was not grounded upon this consideration alone because the opinion went on to point out:

We think that the executor could have had submitted to the jury, along with the other issues, the question of good faith on his part in offering the will for probate; and if the jury had found that, under all the circumstances, he had acted in good faith, then he would have been entitled to judgment for such attorneys’ fees and court costs. This was not done; and the judgment became final. We do not think the rule should be extended further than this, in order to let him recover -in a subsequent suit. [Emphasis added.]

The determinative fact in Huff then, which would likewise be controlling in the instant case, is the fact that the trial court’s judgment, probating the will and awarding costs, had become final and that the prior proceeding was the proper time to have made the claim.

We think that the better rule is to have the questions of good faith and just cause determined in the original probate of the will when all relevant information has been placed before the finder of the facts. To allow these questions to be brought in a subsequent proceeding does not properly utilize judicial machinery and is to further burden a decedent’s estate with administrative expenses and delay in the full distribution of the estate. This result would also be more in line with the rule of res judicata which in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former trial. Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963), see Steakley & Howell, Ruminations on Res Judicata, 28 Sw.L.J. 355 (1974).

For the reasons herein stated, the judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

Concurring opinion by WALKER, J.

WALKER, Justice

(concurring).

I concur in the Court’s judgment, but in my opinion Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327, does not hold that the claim for attorney’s fees and expenses must be established in the original will contest. If it does, the case should be overruled to that extent. The rule now adopted by the Court will not be workable in cases where there is no personal representative of the estate who can be required to observe an order allowing attorney’s fees and expenses rendered by the probate court in the will contest. In the absence of a pending administration, the probate court could not make an order for allowance of attorney’s fees and expenses that would be binding on the heirs. Nor could it make one that would be binding on an independent executor.

It also seems unwise as a practical matter to require that the allowance of attorney’s fees and expenses always be litigated in the context of an adversary will contest. If the interested parties were given the opportunity, the allowance would doubtless be handled on an amicable basis in some cases after resolution of the will contest. This would be quite likely where the expenses of the unsuccessful proponent are obviously reasonable and the personal representative of the estate is one whose personal fortune was not at stake in the will contest. The most that would be required is a simple motion by an administrator and an order of the probate court approving the allowance. Even that would not be necessary when the personal representative is an independent executor.


author: WALKER, Justice.

text:
    Ex parte Vernon Douglas SUTHERLAND.
    No. B-5210.
    Supreme Court of Texas.
    July 16, 1975.
    Rehearing Denied Sept. 24, 1975.

      Cornett, Echols <& Baird, Leighton Cor-nett, Paris, for relator.
    Kennedy & Minshew, Jack G. Kennedy and W. Lawrence Evans, Sherman, for respondent.
   WALKER, Justice.

This is an original habeas corpus proceeding. Vernon Douglas Sutherland, relator, was adjudged guilty of contempt for violating the terms of a prior divorce judgment by failing to pay his former wife one-half of the “retainer pay” received by him as a member of the Fleet Reserve. He attacks the contempt order on two grounds: (1) the retainer pay received after rendition of the divorce judgment constitutes his separate earnings, relator contends, and the provision in the divorce judgment ordering him to pay one-half to his former wife is a void attempt to require the payment of alimony; and (2) he is being imprisoned for debt in violation of Article I, Section 18, of the Texas Constitution, Vernon’s Ann.St. Relator urged these grounds in applying to the Court of Civil Appeals at Texarkana for a writ of habeas corpus. See Article 1824a, Vernon’s Ann.Civ.St. That court granted the petition, but after a hearing it remanded relator to the custody of the sheriff. Ex parte Sutherland, Tex.Civ.App., 515 S.W.2d 137 (wr. dis.). Relator then applied to us for a writ of habeas corpus, and his petition was granted because we entertained doubts as to the legality of his confinement. After hearing and after further consideration of his contentions, we have concluded that he was properly remanded to custody by the Court of Civil Appeals.

The divorce judgment was rendered by the 6th Judicial District Court of Fannin County on August 31, 1971. Under its terms the divorce was granted, the minor children bom to the marriage were placed in the custody of their mother, and relator was ordered to make monthly payments for support of the children. Certain real and personal property was awarded to relator, and other real and personal property was awarded to the wife.

Prior to the divorce relator had served for more than 15 years in the Naval Air Reserve. On July 15, 1970, he was released from active duty and was transferred to inactive duty in Class P-6, United States Naval Fleet Reserve. Under the provisions of the Federal statute, a member of the Fleet Reserve is entitled, when not on active duty, to “retainer pay” based on the basic pay he received at the time of transfer and the number of years of active service in the armed forces. 10 U.S.C.A. § 6330. Relator’s orders require him to report a change of address promptly, to submit to a physical examination at least once every four years, to inform his commanding officer of any change of health that might prevent active service in time of war, to answer all official correspondence promptly and comply with instructions contained therein, and to notify his commanding officer of plans to reside or travel in a foreign country for more than 30 days.

Relator is not in a retired status but may be called to active duty in time of war or national emergency. In time of peace he may be required to perform not more than two months’ active duty for training in every four-year period. 10 U.S.C.A. § 6485. When he has completed 30 years of service, or when he is found not physically qualified, he will be transferred to the appropriate Retired Reserve and will then be entitled to retired pay at the same rate as the retainer pay to which he was entitled at the time of his transfer to the Retired Reserve. 10 U.S.C.A. § 6331.

The divorce judgment recites the court’s conclusions that the wife, Hazel Joy Sutherland, should be awarded “an undivided ½ interest in and to that certain earned property right owned by the parties” represented by relator’s having been released from active duty and transferred to inactive duty in the Fleet Reserve, that “by reason thereof he is receiving payments” in the amount of $257.00 per month, that the wife should be awarded one-half of all Fleet Reserve payments received by relator up to the date of the judgment and a like interest in all future payments received by him, and that relator should be ordered to pay same into the registry of the court. In the decretal provisions of the judgment, the retainer pay being received by relator was adjudged to be community property, a one-half interest therein was awarded to the wife, relator was ordered to pay into the registry of the court one-half of the retainer pay received by him from the time of trial up to the date of the judgment and one-half of all such pay received by him in the future, with interest at the rate of six percent per an-num if not paid within 15 days after receipt, and the clerk was directed to pay the same to the wife.

Relator gave notice of appeal from the portion of the judgment relating to the retainer pay, but he evidently did not perfect his appeal. One-half of the retainer pay received by him after the trial and up to the date of the divorce judgment was paid into the registry of the court, but relator has not paid any of that received after rendition of the judgment. The former wife filed a motion to hold relator in contempt, and on June 19, 1974, after a hearing, the order now under attack was signed by the district judge. It adjudges relator guilty of contempt for violating the order of the court with respect to retainer pay, and orders that he be confined in jail for 30 days and thereafter until he purges himself by paying into the registry of the court $4,000.00 found to be in arrears.

Relator seeks to avoid compliance with the divorce judgment on the ground that the award to the wife of an undivided one-half interest in the “right” to receive future retainer pay is void. He is not attempting to have the prior judgment corrected, but he does insist that it is wholly ineffectual and may not be enforced with respect to retainer pay received after the judgment was signed. It is clear then that this is a collateral attack on the earlier judgment, and relator is contending, in effect, that the district court had no jurisdiction to enter the particular judgment. There are cases in which collateral attacks have been sustained on the ground that the court, although it had jurisdiction of the parties and the subject matter, did not have jurisdiction to render the particular judgment. As we pointed out in Austin Ind. Sch. Dist. v. Sierra Club, Tex.Sup., 495 S.W.2d 878, the errors in these cases were quite serious and struck at the very power of the court to render the judgment. In this instance relator’s “right” to future retainer pay constitutes, at least arguably, no less an earned property right than the disability retirement benefits in Busby v. Busby, Tex.Sup., 457 S.W.2d 551. Whether this “right” was vested and subject to division between the parties was a question to be resolved by the district court in the exercise of its jurisdiction in the divorce proceeding. The court determined at that time that relator’s “right” was vested as community property, and the wife was awarded an undivided one-half interest therein. We hold that the prior judgment is not subject to collateral attack in these circumstances. See Hodges, Collateral Attacks on Judgments, 41 Tex.L.Rev. 163; Roberts v. Southwestern Life Ins. Co., Tex.Civ.App., 244 S.W.2d 302 (wr. ref. n. r. e.).

We are not saying that the determination made by the court in the divorce suit is necessarily correct. See French v. French, 17 Cal.2d 753, 112 P.2d 235, 134 A.L.R. 366. That question is not considered or decided here. We do say that if relator wished to attack the judgment, he should have perfected his appeal. It is not subject to collateral attack in this proceeding. This does not mean that there can never be a collateral attack on any judicial determination that there is a present vested interest in money that will be received in the future. It is conceivable that the purported division of what is determined to be a “vested interest” in funds to be received by one of the spouses in the future might constitute so obvious an award of alimony that the judgment would be regarded as void and subject to collateral attack. We do not attempt to explore that question here.

The former wife’s right to one-half the retainer pay received by relator and his duty to pay her share into the registry of the court, are determined by the divorce judgment. Since that is so, there is no problem here of imprisonment for debt in the constitutional sense, at least with respect to the wife’s one-half of the retainer pay. Relator was constituted a trustee by the court to collect and remit to the clerk the one-half of the pay awarded to the wife. In performing that duty he will not be paying a debt but will be surrendering the share to which his former wife is legally entitled. His confinement to compel payment of the arrearage in the wife’s one-half of the retainer pay is not imprisonment for debt within the meaning of Article I, Section 18, of our Constitution. See Ex Parte Preston, 162 Tex. 379, 347 S.W.2d 938.

The Court of Civil Appeals concluded that relator may not be confined to tíompel payment of interest on the arrearage. That holding has not been questioned, and we assume that the trial court will make any orders that may be necessary to insure that it is observed. It is not clear to us whether the $4,000.00 relator must pay to obtain his release includes or is exclusive of interest, but the contempt judgment has not been attacked on that ground.

It is ordered that relator be remanded to the Sheriff of Fannin County, to be by him confined under the order of the District Court, and that relator pay all costs of this proceeding.


author: GREENHILL, Chief Justice.

text:
    CONTINENTAL INSURANCE COMPANY, Petitioner, v. Pat WOLFORD, Respondent.
    No. B-4957.
    Supreme Court of Texas.
    July 23, 1975.

      Vinson, Elkins, Searls, Conhally & Smith, Knox D. Nunnally, Houston, for petitioner.
    Robert C. Barnett and Kenneth L. Smith, Houston, for respondent.
   GREENHILL, Chief Justice.

This is a workmen’s compensation case in which the controlling issue is whether Pat Wolford, our Respondent, was an employee or an independent contractor. Trial was to a jury which found that he was an employee. Judgment was entered upon the verdict for Wolford. The Court of Civil Appeals affirmed. 515 S.W.2d 364. We find no evidence to support the jury’s finding that Wolford was an employee; and accordingly, we must reverse the judgments of the courts below.

The solution to the question presented here is reached through the application of the test of right of control. Anchor Casualty Co. v. Hartsfield, 390 S.W.2d 469 (Tex.1965); Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.1964); Elder v. Aetna Casualty & Surety Co., 149 Tex. 620, 236 S.W.2d 611 (1951); Standard Insurance Co. v. McKee, 146 Tex. 183, 205 S.W.2d 362 (1947).

The evidence in this regard is this: Wolford was an experienced bricklayer. His practice was to do particular jobs usually lasting one or two weeks. He entered into an oral agreement with Tiffany Homes to lay bricks at the site of a single townhouse being constructed.

The terms of the oral contract, as testified to by Wolford were that he would be paid seven cents for each brick laid, and he estimated that the job would take about a week and a half. He was not paid by the hour, and he came to work “pretty much when he wanted to.” It was within his discretion as to how much he worked and what hours he worked. He could take a break whenever he desired. He furnished his own helper, and he paid the helper by the hour.

Asked if he considered himself a contractor, he replied, “a subcontractor.” He could subcontract the work to others with the consent of the superintendent.

No social security or income tax was withheld from Wolford’s pay. The mortar and sand used by Wolford were furnished by Tiffany Homes, but their cost was deducted from the amount due Wolford. He furnished all his own tools and equipment, his own wheelbarrow, and his own scaffolding. He and his assistant put up the scaffold. While he was at work, a part of the scaffold broke. He fell and was injured.

There was no “pusher” (supervisor) to tell Wolford what to do or when to do it. He could have begun at the north or the south end of the job. There was no evidence of any exercise of control over him, or over any of the details of his work.

Wolford’s counsel emphasizes much of the following testimony which he elicited on direct examination:

Q What was your understanding about whether or not he (Tiffany’s superintendent) had the right to tell you how to do this work out there? If he didn’t like the way you were doing it, or you got a brick laid crooked or something like that, what was your understanding of what his rights were and what your rights were if the details of the work were not done the way he wanted them done?
A Well, if it wasn’t did the right way, he could tell me to do it just, you know — if I wasn’t qualified for the job, I could get my equipment and go home.
Q In other words, the gentleman for Tiffany, if he didn’t like the way you were performing a detail of the work could fire you at any time?
A Yes, sir, he could.

On cross-examination by Continental’s attorney:

Q Now, it was up to you as to which stack you went for first and picked the bricks out of?
A Correct.
Q It was up to you as to how you mixed your mortar and sand?
A Yes, sir. That’s up to me.
Q In other words, it was your decision as to exactly how you mixed it and how much water you put in, how much sand you put in, and how much cement you put in?
A Yes, sir. That’s up to me.

On re-direct examination by Wolford’s attorney:

Q Counsel asked you about your performing the so-called details of the employment, the picking out of the brick to lay and the mixing of the mortar. Is it true that no one had to tell you how to do that, because you were an experienced bricklayer and knew how?
A That’s right.
Q But what is your testimony as to whether if you were not doing it the way the superintendent wanted you to do it, what did he have the right to do?
A Well, if I wasn’t laying them right, building an arch or something, and some of the superintendents are real good, you know, they just drive down the street and see if you have got one or two bricks on the wall wrong, he will tell you, say, “Well, this job can’t be, you know, can’t be this way. We are going to have to get somebody else.”

The testimony merely reflects the view that if the supervisor from Tiffany Homes was dissatisfied with Wolford’s work product, Wolford could be discharged. It is not, in our opinion, evidence that details of his work were being controlled or were subject to Tiffany’s control. As far as this problem is concerned, the right to stop the work exists regardless of whether Wolford was an employee or independent contractor; and, therefore, such a right can afford no basis for determining Wolford’s status. As stated in Anchor Casualty Co. v. Hartsfield, 390 S.W.2d 469 (Tex.1965):

[T]he only evidence of [the sub-contractor’s] right to control more than the end results rests in the testimony that [the subcontractor] could have told Hartsfield anything he wanted done and he would have done it. This testimony . is no more than a scintilla of evidence of the requisite right of control. It follows that the only reasonable conclusion infer-able from the facts is that Hartsfield was not an employee but occupied the status of independent contractor as a matter of law.

The minimal degree of control found in our case is even less than that found in Harts-field, wherein the claimant testified that he would follow any instructions given to him by the subcontractor. We hold, therefore, that Pat Wolford was an independent contractor as a matter of law at the time of his injury. Consequently, there was no evidence to support the finding of the jury that Wolford was an employee of Tiffany Homes.

The judgments of the courts below are reversed, and judgment is here rendered •that plaintiff take nothing.


author: PER CURIAM.

text:
    Pearline Katy ARMENDARIZ et al., Petitioners, v. Joe B. MORA, d/b/a Central Vending Co., Respondent.
    No. B-5233.
    Supreme Court of Texas.
    July 30, 1975.
    Owen, Brester, Steinberger, Mayhall & Company, Jack L. Brewster, El Paso, for petitioners.
    Charles E. Anderson, El Paso, for respondent.
   PER CURIAM.

S&H Realty Company was the owner of certain business premises in El Paso which had been leased to Kathy Armendariz under a lease which prohibited subleasing without the written consent of the lessor. Shortly thereafter, Joe Mora entered into what was designated an exclusive concession lease with Armendariz that was to run for some 5 years. This concession lease, which was obtained without the knowledge or consent of S&H Realty, permitted Mora the exclusive right to place coin-operated amusement and vending machines on the premises. S&H Realty and Armendariz subsequently agreed to terminate them landlord-tenant relationship upon the execution of a new lease with a designated third party. The new lessee, with the approval of S&H Realty, entered into an exclusive concession lease with B&B Vending Co., who thereupon entered upon the business premises and replaced Mora’s vending machines with its own.

Joe Mora brought this action seeking temporary and permanent injunctive relief directed at protecting his interests under his exclusive concession lease which still had some 8 years to run. The trial court granted a temporary injunction, and the court of civil appeals affirmed. 519 S.W.2d 921.

The record discloses that Mora’s pleadings referred to damages that he might suffer if his vending machines were not placed back into operation on the premises. However, upon the temporary injunction hearing, absolutely no evidence was adduced tending to show that Mora would suffer any injury if a temporary injunction was not issued. Granting a temporary injunction under such circumstances would be improper in view of this court’s decision in Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683 (Tex.1968) where it was held that the applicant has the burden of offering some evidence establishing probable injury. The temporary injunction, therefore, cannot stand.

Accordingly, we grant petitioners’ motion for rehearing on application for writ of error. Additionally, pursuant to Texas Rules of Civil Procedure 483 we grant writ of error and, without hearing oral argument, reverse the judgments of the district court and the court of civil appeals and dissolve the temporary injunction.


author: DANIEL, Justice.

text:
    Neil G. DELANEY, Jr., et al., Petitioners, v. FIDELITY LEASE LIMITED et al., Respondents.
    No. B-5118.
    Supreme Court of Texas.
    July 23, 1975.
    Rehearing Denied Sept. 24, 1975.

      Kronzer, Abraham & Watkins, W. James Kronzer, Houston, Webb & Stokes, Tom Webb, Cain, Dorsey & Johnson, Donald P. Dorsey, Melvin N. Gray, San Angelo, for petitioners.
    Edwards, Belk, Hunter & Kerr, Frank Hunter, Kemp, Smith, White, Duncan Si Hammond, Joe Lea, Jr. and Jim Curtis, El Paso, for respondents.
   DANIEL, Justice.

The question here is whether limited partners in a limited partnership become liable as general partners if they “take part in the control of the business” while acting as officers of a corporation which is the sole general partner of the limited partnership. The trial court, by summary judgment, held that under such circumstances the limited partners did not become liable as general partners. The court of civil appeals affirmed with a dissent and a concurring opinion. 517 S.W.2d 420. We reverse and remand the case for trial on the merits.

Fidelity Lease Limited is a limited partnership organized under the Texas Uniform Limited Partnership Act, Article 6132a, to lease restaurant locations. It is composed of 22 individual partners, and a corporate general partner, Interlease Corporation. Interlease’s officers, directors and shareholders were W. S. Crombie, Jr., Alan Kahn, and William D. Sanders, who were also limited partners of Fidelity. In February of 1969, plaintiffs Delaney, et al. entered into an agreement with the limited partnership, Fidelity, acting by and through its corporate general partner, Interlease, to lease a fast-food restaurant to the partnership. In accordance therewith, plaintiffs built the restaurant, but Fidelity failed to take possession or pay rent.

Plaintiffs brought suit for damages for breach of the lease agreement, naming as defendants the limited partnership of Fidelity Lease Limited, its corporate general partner Interlease Corporation, and all of its limited partners. On plaintiffs’ motion the cause against the limited partners individually, insofar as it relates to their personal capacities and liabilities, was severed from the cause against Fidelity and Inter-lease. In this severed cause, the trial court granted a take nothing summary judgment for the limited partners. Plaintiffs appealed only as to limited partners Crombie, Kahn, and Sanders. Plaintiffs sought to hold these three individuals personally liable under Section 8 of Article 6132a, alleging that they had become general partners by participating in the management and control of the limited partnership.

Pertinent portions of the Texas Uniform Limited Partnership Act, Article 6132a, provide:

“Sec. 8. A limited partner shall not become liable as a general partner unless, in addition to the exercise of his rights and powers as a limited partner, he takes part in the control of the business.
“Sec. 13. (a) A person may be a general partner and a limited partner in the same partnership at the same time.
“(b) A person who is a general, and also at the same time a limited partner, shall have all the rights and powers and be subject to all the restrictions of a general partner; except that, in respect to his contribution, he shall have the rights against the other members which he would have had if he were not also a general partner.” (Emphasis added.)

It was alleged by plaintiffs, and there is summary judgment evidence, that the three limited partners controlled the business of the limited partnership, albeit through the corporate entity. The defendant limited partners argue that they acted only through the corporation and that the corporation actually controlled the business of the limited partnership. In response to this contention, we adopt the following statements in the dissenting opinion of Chief Justice Preslar in the court of civil appeals:

“I find it difficult to separate their acts for they were at all times in the dual capacity of limited partners and officers of the corporation. Apparently the corporation had no function except to operate the limited partnership and Appellees were obligated to their other partners to so operate the corporation as to benefit the partnership. Each act was done then, not for the corporation, but for the partnership. Indirectly, if not directly, they were exercising control over the partnership. Truly ‘the corporation fiction’ was in this instance a fiction.” 517 S.W.2d at 426-27.

Thus, we hold that the personal liability, which attaches to a limited partner when “he takes part in the control and management of the business,” cannot be evaded merely by acting through a corporation. See Bergeson v. Life Ins. Corp. of America, 170 F.Supp. 150, 159 (D.Utah 1958), modified on other grounds, 265 F.2d 227 (10th Cir.) cert. den., 360 U.S. 932, 79 S.Ct. 1452, 3 L.Ed.2d 1545 (1959); Strang v. Thomas, 114 Wis. 599, 91 N.W. 237 (1902); 68 C.J.S. Partnership § 478, p. 1029 (1950); 60 Am. Jur.2d Partnership, § 381, pp. 262-63 (1972).

The defendant limited partners also contend that the “control” test enumerated in Section 8 of Article 6132a for the purpose of inflicting personal liability should be coupled with a determination of whether the plaintiffs relied upon the limited partners as holding themselves out as general partners. Thus, they argue that, before personal liability attaches to limited partners, two elemente must coincide: (1) the limited partner must take part in the control of the business; and (2) the limited partner must have held himself out as being a general partner having personal liability to an extent that the third party, or plaintiff, relied upon the limited partners’ personal liability. See Vulcan Furniture Mfg. Corp. v. Vaughn, 168 So.2d 760 (Fla.Dist.Ct.App.1964); Silvola v. Rowlett, 129 Colo. 522, 272 P.2d 287 (1954); Rathke v. Griffith, 36 Wash.2d 394, 218 P.2d 757 (1950). They observe that there is no question in this case but that the plaintiffs were in no way misled into believing that these three limited partners were personally liable on the lease, because the lease provided that the plaintiffs were entering into the lease with “Fidelity Lease, Ltd., a limited partnership acting by and through Interlease Corporation, General Partner.”

We disagree with this contention. Section 8 of Article 6132a simply provides ■that a limited partner who takes part in the control of the business subjects himself to personal liability as a general partner. The statute makes no mention of any requirement of reliance on the part of the party attempting to hold the limited partner personally liable.

Crombie, Kahn, and Sanders argue that, since their only control of Fidelity’s business was as officers of the alleged corporate general partner, they are insulated from personal liability arising from their activities or those of the corporation. This is a general rule of corporate law, but one of several exceptions in which the courts will disregard the corporate fiction is where it is used to circumvent a statute. Pacific American Gasoline Co. of Texas v. Miller, 76 S.W.2d 833 (Tex.Civ.App.1934, writ ref’d). See also Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 202 (Tex.1962), and Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (1955). That is precisely the result here, for it is undisputed that the corporation was organized to manage and control the limited partnership. Strict compliance with the statute is required if a limited partner is to avoid liability as a general partner. See Hamilton on Business Organizations, 19 Texas Practice § 215, at p. 206. See also “The Limited Partnership With a Corporate General Partner . .”, Comment, 24 S.W.Law J. 285, 291-292 (1970). It is quite clear that there can be more than one general partner. Assuming that Interlease Corporation was a legal general partner, a question which is not before us and which we do not decide, this would not prevent Crombie, Kahn, and Sanders from taking part in the control of the business in their individual capacities as well as their corporate capacities. In no event should they be permitted to escape the statutory liability which would have devolved upon them if there had been no attempted interposition of the corporate shield against personal liability. Otherwise, the statutory requirement of at least one general partner with general liability in a limited partnership can be circumvented or vitiated by limited partners operating the partnership through a corporation with minimum capitalization and therefore minimum liability. We hold that the trial court erred in granting summary judgment for the defendants, Crombie, Kahn, and Sanders. If, upon trial on the merits it is found from a preponderance of the evidence that either of these three limited partners took part in the control of the business, whether or not in his capacity as an officer of Interlease Corporation, he should be adjudged personally liable as a general partner.

In affirming the trial court, the majority opinion of the court of civil appeals stated:

“It is permissible in this State to form a limited partnership where a corporation is the only general partner, provided that the purpose to be carried out by the limited partnership is lawful.” 517 S.W.2d at 423.

The court had no point of error before it requiring such statement to be made. Its accuracy depends upon the scope of the. corporate charter, Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716 (1945), and upon whether we should extend our holding in Port Arthur Trust Co. v. Muldrow, 155 Tex. 612, 291 S.W.2d 312 (1956), to sanction corporations acting as general partners in a statutory limited partnership. We reserve any decision on these questions until they are properly presented for our determination.

Accordingly, the cause of action against the defendants Crombie, Kahn, and Sanders is severed, and as to that portion of the case the judgments of the lower courts are reversed and such cause as to them is remanded for trial in accordance with this opinion. As to the remainder of the case, the judgment of the trial court is affirmed.

      . All references to statutes are to Vernon’s Annotated Texas Civil Statutes.


author: MOORE, Justice.

text:
    H. W. CROOK et ux., Sharon Crook, Appellants, v. Dick WILLIAMS, Appellee.
    No. 840.
    Court of Civil Appeals of Texas, Tyler.
    July 17, 1957.
    Tom O’Connell, Plano, for appellants.
    James R. Catón, McKinney, for appellee.
   MOORE, Justice.

This is an appeal from the judgment of the trial court granting a Bill of Review and setting aside and holding for naught a default judgment previously rendered. The judgment appealed from did not dispose of the case on its merits so as to finally determine the rights of the parties.

It is settled that in a suit brought by bill of review, the court must try and determine not only the question of whether the judgment may be reopened, but also the issues presented in the original action, and that an order which merely vacates the former judgment without disposing of the merits of the controversy between the parties is not a final judgment from which an appeal will lie. Hubbard v. Tallal, 127 Tex. 242, 92 S.W.2d 1022 (Tex.Com.App., 1936, adopted); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957); Palmer v. D. O. K. K. Benevolent and Insurance Association, 160 Tex. 513, 334 S.W.2d 149 (1960). The judgment being interlocutory, this court is without power to review it. Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280.

The appeal is dismissed.


author: KLIN6EMAN, Justice.

text:
    DON’S AMBULANCE SERVICE, INC., Appellant, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 15403.
    Court of Civil Appeals of Texas, San Antonio.
    May 30, 1975.
    Rehearing Denied July 30, 1975.

      Sims <⅞ Sims, Jack B. Sims, San Antonio, for appellant.
    Sidney D. Callender, San Antonio, for appellees.
   KLIN6EMAN, Justice.

This is a suit by appellant, Don’s Ambulance Service, Inc., plaintiff below, against appellee, San Antonio Pair, Inc., to recover damages for breach of contract allegedly performed by it and breached by appellee. The jury, in answer to the only two issues submitted, found that appellant made an offer to furnish ambulance service to appel-lee and that appellee accepted such offer. Both sides moved for judgment. The trial court overruled appellant’s motion for judgment and sustained appellee’s motion for judgment and entered a take-nothing judgment against appellant.

This case was originally filed against the City of San Antonio and San Antonio Pair, Inc. The court ordered a severance as to the two defendants, and the City of San Antonio is not involved in this appeal.

Appellant’s pleadings assert that it entered into an agreement with appellee to furnish ambulance services for a specific period of time for $38,000.00; that it had not received payment in full for services rendered under such contract or agreement; and that there is due and owing under such contract the sum of $12,666.68, and judgment in this sum is prayed for. Defendant’s answer contains a general denial; a special denial that it is indebted to plaintiff in any amount or sum; and a sworn denial that the instruments in writing upon which plaintiff’s cause of action was founded were executed by it or under its authority.

We will first consider appellee’s motion to dismiss the appeal. Such motion is predicated upon two basic contentions: (a) appellant’s points of error are too general and broad and do not constitute a sufficient compliance with the Rules of Civil Procedure to justify their consideration by this Court; (b) appellant’s points of error do not relate to and are not traceable to any distinct assignment of error in appellant’s motion for new trial, and such points of error are not properly before this Court.

Appellant’s points of error are very general and in some respects are multifarious and do not strictly comply with the Rules of Civil Procedure. However, the object of a point of error in a brief, as provided in Rule 418, Tex.R.Civ.P. (1965), is to call the court’s attention to the questions raised and discussed in the brief. Ordinarily, if the point is sufficient to direct the court’s attention to the matter complained of, the court will look to the point and the statements and argumente thereunder, to determine the question of reversible error, and the court will pass on both the sufficiency and the merits of the point in the light of the statements and the arguments thereunder. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943). Our courts have given a liberal interpretation of the rules in favor of the sufficiency of an appellant’s brief, and under a liberal construction of the rules, we will consider the contention made by appellant in his brief and look to the statements and arguments made in the brief to determine the nature of appellant’s complaints and the grounds upon which he apparently relies to support his appeal. Bunnell v. Republic Bankers Life Insurance Company, 497 S.W.2d 338 (Tex.Civ.App.— Austin 1973, no writ); Mooney Aircraft, Inc. v. Adams, 377 S.W.2d 123 (Tex.Civ.App.—Dallas 1964, no writ); Wyche v. Noah, 288 S.W.2d 866 (Tex.Civ.App.—Dallas 1956, writ ref’d n. r. e.).

Appellee also contends that appellant’s points of error cannot be considered because they do not relate to and are not traceable to any distinct assignments in appellant’s motion for new trial. The record discloses that appellant filed not only a motion for new trial but also a motion for judgment based upon the jury’s findings to the special issues submitted. Rule 324, Tex.R.Civ.P. (1967), provides in part that in cases where a party desires to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal, provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court in overruling a motion for judgment on the verdict made by the party who becomes appellant. Under a liberal interpretation of the rules, we will consider appellant’s points of error as we understand them.

Although appellant submits six points of error, they basically boil down to his contention that the trial court erred in not sustaining its motion for judgment and in not entering judgment for appellant based upon the jury’s verdict, and that the trial court erred in entering a take-nothing judgment against appellant.

Appellee asserts that the trial court’s judgment should be affirmed because: (1) the jury’s answers to the only special issues submitted do not form a sufficient basis for entering a judgment for appellant; (2) appellant failed to prove that the alleged written contract was executed by appellee under its authority; (3) appellant neither pled nor proved the performance of the contract by it; (4) appellant did not request nor did the court submit a special issue as to the performance of the contract; (5) appellant wholly failed to prove any damages suffered by it as a result of any alleged breach of contract by appellee; (6) appellant did not request nor did the court submit any special issues regarding damages.

In its judgment, the trial court stated: “ . . . Further, the Court having made such additional findings and considerations as were authorized by the law and the evidence, as well as the pleadings in this cause, is of the opinion and finds that, based upon the verdict of the jury, as well as such additional findings and considerations as were authorized by law and made by the Court, the Court is of the opinion that Judgment should be rendered as follows for the Defendant: . . The court then decreed that appellant take nothing against appellee.

Appellant made no objections or exceptions to the charge as submitted and did not request the submission of any additional special issues. Appellee made a number of objections to the court’s charge as submitted and, among other things, objected: (a) to the submission of Special Issue No. 2 (whether appellee accepted the bid and offer of appellant to furnish ambulance services) on the ground that there was no legal evidence of probative value that defendant corporation, or anyone with any authority to bind said corporation, ever did accept such bid and offer; (b) to the submission of said charge because of its failure to inquire of the jury as to any sum of money due plaintiff, or as to any element of damages the plaintiff may have sustained; (c) to the submission of the charge as a whole because affirmative answers to said issues submitted will not support a judgment for plaintiff.

Rule 279, Tex.R.Civ.P. (1967), provides, among other things, that upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived. However, if the grounds of recovery or defense consist of more than one element and the court submits some of the elements and omits some others, and there are no objections to the failure to submit the omitted elements, the parties will be placed in the position of having agreed to waive a jury trial on the unsubmitted elements and to have submitted them to the court for his determination. Skelly Oil Company v. Medical & Surgical Clinic, 418 S.W.2d 574 (Tex.Civ.App.—Tyler 1967, no writ).

In the absence of either party to the proceedings making any request for additional issues or for findings to be made, or the court filing written findings of its own, a reviewing court must deem omitted issues, if any, to have been found in a manner such as to support judgment. McAllister v. Gardner, 378 S.W.2d 316 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.); Davis v. Zapata Petroleum Corp., 351 S.W.2d 916 (Tex.Civ.App.—El Paso 1961, writ ref'd n. r. e.); Pan American Fire & Casualty Company v. Greenberg, 326 S.W.2d 274 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.); Commonwealth Credit Corp. v. Breitkreutz, 324 S.W.2d 949 (Tex.Civ.App.—Fort Worth 1959, writ ref’d n. r. e.).

The statutes and civil procedure rules relating to submission of issues do not require a defendant to request the submission of plaintiff’s issues. When a plaintiff does not request a jury submission of an issue embracing a component element of his ground of theory of recovery, he waives a jury submission thereof, and the trial court may find upon the unsubmitted issue in such manner as he finds the facts to be. Pasadena Associates v. Connor, 460 S.W.2d 473, 479 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.); Rodriguez v. Higgenbotham-Bailey-Logan Company, 172 S.W.2d 991 (Tex.Civ.App.—San Antonio 1943, writ ref’d).

There are several areas covered in appel-lee’s counter points upon which an affirmance of the judgment can be supported, and we will discuss these areas.

The first of these areas is the question of authority. Appellee, by sworn pleadings, denied that the instruments in writing upon which appellant’s cause of action was founded.were executed by it or under its authority. It contends that in view of such pleadings, the burden of proof to show authority was upon appellant; that appellant failed to discharge such burden; and that the court’s implied finding of no authority is sufficiently supported by the evidence. It must be remembered that the jury found that appellee accepted the offer of appellant to furnish ambulance services. This jury finding necessarily encompasses a finding that such acceptance was authorized by appellee. In view of such finding, there was no basis for an implied finding by the trial court upon the question of authority, and appellee’s contention in this regard is rejected.

The jury made no findings as to damages. This was a necessary element of recovery of a judgment by appellant. Appellant requested no issues as to damages and made no exceptions or objections to the charge as submitted.

As. hereinbefore discussed, when a plaintiff does not request a jury submission of an issue embracing a component element of its .basis for recovery, it waives a jury submission thereof, and the trial court may find upon the unsubmitted issues in such manner as he finds the facts to be. The trial court impliedly found that the plaintiff suffered no damages. Without a finding as to damages, appellant is not entitled to a judgment. Under the record, the trial court correctly entered a take-nothing judgment against appellant.

In view of our holding herein, we do not deem it necessary to discuss or pass on appellee’s other contention that the trial court judgment should be affirmed because appellant neither pled nor proved the performance of the contract by it and because no issue was requested or submitted as to the performance of the contract.

The judgment is affirmed.

      . Appellant’s six points of error may be summarized as follows: The trial court erred (1) in sustaining appellee’s motion for judgment and in denying appellant’s motion for judgment based on alleged lack of authorities on the part of appellee to enter into the contract; (2) in sustaining appellee’s motion for judgment and in denying appellant’s motion for judgment based on alleged lack of pleadings; (3) in sustaining appel-lee’s motion for judgment and in denying appellant’s motion for judgment because said action was against the great weight and preponderance of the evidence; (4) in not sustaining appellant’s motion for judgment based on the jury’s answers to special issues; (5) in entering judgment in favor of appellee contrary to the jury’s answers to special issues and based upon undisclosed findings of fact and conclusions of law; (6) in granting judgment that appellant take-nothing from appellee.