author: DANIEL, Justice. McGEE, Justice,

text:
    Allen J. SCOTT, Petitioner, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Respondent.
    No. B-6648.
    Supreme Court of Texas.
    Jan. 4, 1978.
    Rehearing Denied June 7, 1978.

      Helm, Pletcher, Hogan & Burrow, J. Donald Bowen, Houston, H. A. Coe, Jr., Kountze, for petitioner.
    O’Brien & Richards, Chilton O’Brien, Beaumont, McLeod, Alexander, Powell & Apffel, Inc., Galveston, for respondent.
   DANIEL, Justice.

This appeal involves the adequacy of issues and instructions submitted to the jury in a personal injury suit brought under the Federal Employers’ Liability Act, 45 U.S. C.A., § 51 et seq. Plaintiff, Allen J. Scott, alleged that his injuries were caused by negligent acts of his employer, The Atchi-son, Topeka and Santa Fe Railway Company, while he was in the course and scope of his employment as a brakeman. Scott’s injuries occurred when a freight train derailed at a portion of the roadbed which was washed out by a heavy rainstorm. Based upon an answer favorable to the plaintiff on one broadly submitted negligence issue, the trial court rendered judgment for the plaintiff. The Court of Civil Appeals reversed and remanded on various grounds relating to the trial court’s submission of the case to jury. 551 S.W.2d 740. We affirm the judgment of the Court of Civil Appeals.

The evidence shows that during the late afternoon and early evening of June 5, 1973, an unprecedented rainstorm struck north of the railroad company’s track between Somerville and Silsbee in the vicinity of Plantersville. It resulted in the flooding of Caney Creek near the location of the railroad’s Bridge 46.3. Portions of the roadbed and ballast beneath the tracks near Bridge 46.3 were washed out. The washout was unknown to plaintiff or other employees on the defendant’s freight train when it left Somerville at about 6 p. m. or at anytime before the train ran into the washed out area about 9 p. m. The accident caused plaintiff to sustain injuries to his back, neck, and left knee.

Plaintiff Scott originally alleged, in very general terms, that his injuries were caused, in whole or in part, by the negligence of defendant “in failing to provide plaintiff with a reasonably safe place in which to do his work.” The railroad filed exceptions to the generality of such allegations, and thereafter Scott filed an amended petition in which he added three specific allegations as follows:

“The track and supporting bed and ties were faulty in construction, materials and or maintenance since they allowed this train to derail on the occasion in question. Defendant also violated Article 6328 of Vernon’s Civil Statutes Annotated and such violation was negligence and was a cause, in whole or in part, of the accident and injuries to Plaintiff. In addition, Defendant violated the provisions of the Boiler Inspection Act [45 U.S.C.A. §23] in that the engine Plaintiff was riding in was not safe, all of which was a cause in whole or in part of his injuries.”

The railroad company filed a general denial and an affirmative written pleading in which it alleged that the accident and Scott’s injuries were caused solely by an “Act of God” in the form of an unprecedented rainfall which caused water to flood Caney Creek and wash out the roadbed and tracks at the place of the derailment.

There was more than a scintilla of evidence in support of the specific allegations of both parties, except as to plaintiff’s allegation that the track and supporting bed and ties were faulty in construction, materials and/or maintenance. We find no evidence in support of the latter allegation.

Upon the request of the plaintiff and over the objections of the defendant, the case was submitted to the jury on one broad negligence issue followed by a conditional causation issue, and one specific issue on the alleged unsafe condition of the door latch on the locomotive, followed by related conditional issues. The trial court refused to submit the railroad’s request for a special issue on sole causation by an “Act of God” or to correct its explanatory instructions on that aspect of the case when they were objected to by the railroad.

The Court of Civil Appeals, with one member dissenting, reversed and remanded upon a holding that the railroad’s defensive issue on “Act of God” should have been submitted and that Special Issue No. 1 was too broad in that it did not limit the jury’s consideration to those acts or omissions which were raised by the written pleadings and the evidence. Rule 277. Although federal law governs substantive rights of the parties in F.E.L.A. cases, such cases filed in our state courts are tried in accordance with our own applicable Rules of Civil Procedure. Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868, 870 (Tex.1973).

The Negligence Issue

Plaintiff-Scott insists that the Court of Civil Appeals erred in sustaining defendant’s objection to the manner in which Special Issue No. 1 was submitted. He argues that the holding is in conflict with Members Mutual Insurance Co. v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App.1975, writ ref’d n. r. e.), in which the court approved a broad form of submission of several specifically alleged acts of negligence of the parties as follows: “Whose negligence, if any, do you find from a preponderance of the evidence proximately caused the collision made the basis of this suit?” The answer space followed with (a) designating the name of the defendant, (b) the name of the plaintiff, and (c) “Both,” with blank spaces for the jury to indicate its findings. 523 S.W.2d at 79. However, the eases are distinguishable in that the Muckelroy case apparently had some evidence in support of all of the alleged acts of negligence. The same was true in Mobil Chemical Company v. Bell, 517 S.W.2d 245, 255 (Tex.1974), relied upon in Muckelroy, in which we explained the broad submission permitted by Rule 277 as applying in ordinary negligence cases “where several specific acts of negligence are alleged and evidence as to each is introduced . . . This is not true in the present case. Furthermore, the defendant’s complaint in Muckelroy was that the broad issue failed to limit the jury to the specific acts of negligence alleged, without any complaint that it failed to limit the jury to facts which were alleged and proved. In the present case, the railroad’s objection complains that the broad submission of Special Issue No. 1:

“. . . permits the Jury to . hold the Defendant liable upon some basis neither pled nor proved by Plaintiff . . Such Issue should be limited to the acts or omissions pled by Plaintiff to constitute negligence and concerning which there is some proof to support the submission of an issue.”

This is the first time that such two-fold objection to a broad and unlimited submission of negligence has been clearly presented to this Court since the 1973 amendment to Rule 277. This case is different from Mobil Chemical, supra, in two respects. First, as heretofore indicated, all alleged specific acts of negligence were not supported by evidence. Secondly, there are facts in evidence in the present case from which negligence might have been inferred by the jury although not pleaded. For instance, incident to other proof, there was evidence that a storm warning for the area in question had been broadcast on television at about 5 p. m., an hour before the train left Somerville, and nearly four hours before the train reached the point of derailment; the railroad has a storm warning system but did not relay any warning of the rainstorm which had occurred in the area prior to the train reaching the washout; no inspection of the tracks was made during the period of an hour after the storm and before the train reached the washout. The jury could have inferred from other evidence and circumstances that the train was being operated at an excessive rate of speed or that the brakes were not applied soon enough to avoid the derailment.

Special Issue No. 1 simply allowed the jurors to make their own determination as to whether “on the occasion in question the railroad was negligent,” without regard to whether the acts or omissions upon which they reached a 10 to 2 answer had been raised by the pleadings and proof. This is contrary to the requirement in Rules 277 and 279 that special verdict submissions shall be only upon controlling issues that are raised “by the written pleadings and the evidence.” This requirement was unaffected by the 1973 amendment to Rule 277. The pleadings of the parties still furnish the blueprint for the charge. In the absence of trial by consent, a judgment not supported by the pleadings is erroneous. City of Fort Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221 (1937).

Under Rule 277, the trial court has the discretion to submit an issue broadly, including the combination in one issue of several acts or omissions which may be alleged to constitute negligence. However, when one or more pleaded acts or omissions are unsupported by evidence and the record contains evidence of other possible negligent acts or omissions which were not pleaded, failure to limit the broad ultimate fact issue to acts or omissions which were raised by both pleadings and proof violates Rule 277 and is error. In view of the wide variance between the pleadings and unpled facts and circumstances from which the jury could have inferred that the railroad was negligent, such error was reasonably calculated to and probably did cause the rendition of an improper judgment. Rule 434. Accordingly, the Court of Civil Appeals properly reversed and remanded the case for a new trial.

It has been suggested that the absence of the necessary limiting language in Special Issue No. 1 can be cured on retrial by an accompanying instruction along the following lines:

In determining negligence you may consider only those acts or omissions which are both alleged in the pleadings and supported by the evidence.

Under the facts and circumstances of this case, we do not agree that the above language would be an acceptable means of bringing the broad single issue submission of negligence into compliance with those portions of Rules 277 and 279 which require the trial court to confine the issues to those “raised by the written pleadings and the evidence.” The suggested remedy involves questions of law which are within the trial court’s area of responsibility. Whether the occurrence of acts or omissions are properly alleged in written pleadings and supported by evidence are questions of law. They have no place in the jury room.

Where multiple acts or omissions are alleged to be negligent, some of which are supported by evidence and some of which are not, or where there is evidence of possible negligent acts or omissions which are not alleged to be negligent, the trial court should inquire only about those which are raised by both the pleadings and the evidence. Judicial compliance with this requirement does not necessarily mean the submission of separate questions with respect to each of such acts or omissions. On the contrary, compliance under the two alternative broader methods of submission authorized in Rule 277 can be accomplished very simply by listing the relevant acts or omissions (those raised by both pleadings and evidence) in a broad ultimate fact issue as authorized in paragraph two of the Rule or in a checklist form detailed in paragraph four of the Rule. Or, if the listing of the relevant acts or omissions in the broad ultimate fact issue should be cumbersome, complicating, or otherwise undesirable, the requirement may be met by a complementary instruction along the following lines:

In your determination of the above question you shall consider only whether the railroad company was negligent in failing to have necessary culverts or sluices at or near Bridge 46.3, or [here listing any other acts or omissions raised by the pleadings and the evidence upon the new trial].

It should be stressed that Rule 277 was amended in 1973 for the specific purpose of permitting simpler and broader submissions of controlling issues as a means of halting the complex and artificial proliferation of narrow special issues, especially in ordinary negligence cases. The various alternative methods provided by Rule 277 are within the discretion of the trial court so long as the negligence and causation issues are limited in some manner to the acts or omissions which are raised by the pleadings and the evidence in cases where there is a material variance between the pleadings and the evidence.

Petitioner Scott insists that the railroad’s objection to Special Issue No. 1 was not a proper method of pointing out the alleged deficiency and preserving the alleged error. This contention is grounded upon the erroneous assumption that the only viable method of curing the deficiency (failure to limit the question to acts or omissions raised by the pleadings and the evidence) was by the type of explanatory instruction contemplated in Rule 279. Upon this assumption, Scott argues that the railroad waived any error in connection with this issue by failing to request and tender a substantially correct explanatory instruction in accordance with Rule 279. We disagree.

As heretofore indicated, a simple way to cure the deficiency pointed out and objected to with reference to Special Issue No. 1 is to include the relevant acts and omissions within the wording of the issue, although the same correction may be accomplished by listing them in a complementary limiting instruction. The latter is not the type of “explanatory instruction” contemplated in Rule 279. This Court so held in an analogous situation in City of Austin v. Powell, 156 Tex. 610, 299 S.W.2d 273 (1957), wherein the trial court failed to fix the burden of proof either in the special issue or by instruction in the charge. Either method was permissible under Rule 277, but the defendant objected only to the issue without tendering an instruction. This Court held that the objection to the issue was sufficient; that there was no waiver because of failure to tender an instruction; and since the procedure was covered by Rule 277 “it was not intended that this matter should be comprehended by the general provision relating to ‘explanatory instruction’ contained in Rule 279.” We so hold with reference to the objection which was overruled in the present case.

The “Act of God” Issue and Instruction

As indicated, the railroad filed affirmative written pleadings that the accident was due solely to the washout of its tracks caused by an Act of God. There was much evidence that the unprecedented rainstorm and flash flood caused the washout and subsequent accident. The evidence is summarized in the opinion of the Court of Civil Appeals. The railroad insists that this was a controlling issue raised by the pleadings and the evidence. It made a timely request for the trial court to submit an issue inquiring whether the accident was due solely to an Act of God. This defensive concept has all of the aspects of an inferential rebuttal issue, and we so consider it. Prior to our opinion in Yarborough v. Berner, 467 S.W.2d 188 (Tex.1971), and the 1978 amendment to Rule 277, the railroad would have been entitled to a separate finding on this type of rebuttal issue. Yarborough v. Berner, supra; Fort Worth & D. C. Railway Company v. Kiel, 143 Tex. 601, 187 S.W.2d 371 (1945); Gulf, C. & S. F. Ry. Co. v. Boyce, 39 Tex.Civ.App. 195, 87 S.W. 395 (1905, writ ref’d). The submission of inferential rebuttal issues has been discouraged since this Court’s opinion in Yarborough v. Berner, supra, and they have been prohibited since the adoption of the 1973 amendment to Rule 277. The proscription reads: “Inferential rebuttal issues shall not be submitted.” Rule 277. We agree with plaintiff Scott’s argument that the Court of Civil Appeals erred in holding that the railroad’s “Act of God” defense should have been submitted as a separate issue.

On the other hand, under the pleadings and evidence in this case, the railroad company was entitled to have this defensive aspect of the case fairly presented to the jury by an explanatory instruction. Yarborough v. Berner, supra; Rule 277. In our effort to provide a simpler special verdict practice it was anticipated that there would be more emphasis on adequate, though not excessive, explanatory instructions. We retained the mandate in Rule 277 that the court “shall submit such explanatory issues as shall be proper to enable the jury to render a verdict.” Accompanying the railroad’s request for a special issue on this defense was its proposed definition of the meaning of the term “Act of God.” After refusing to submit the issue, the trial court placed defendant’s requested definition immediately ahead of the special issues with this additional instruction:

“An occurrence may be an ‘Act of God’, that is, an event not caused in whole or in part by the negligence of any party.”

The railroad company timely objected to this instruction because of the trial court’s “failure ... to relate it either to the issues inquiring on negligence or the issues inquiring with regard to causation . .” Its objection and arguments in the courts below and here are that this abstract statement of the law was meaningless to the jury since it was wholly without reference to or connection with any issue or definition on negligence or causation. It failed to instruct the jurors how to apply the law to the issues if they should determine that the washout and Scott’s injuries were caused solely by an Act of God. The above quoted instruction was defective for another reason which was not set forth in the objections. It actually describes “unavoidable accident” rather than “Act of God.” Furthermore, it is not consistent with the definition which preceded it.

Upon retrial, if the pleadings and evidence again raise “Act of God” as a defense, the explanatory instruction should focus the effect of the concept on the relevant issues that are to be considered, but without reference to the result thereof. This may be accomplished by inserting the following explanatory instruction in the charge after the definitions of “negligence” and “cause in whole or in part”:

In connection with the above definitions and any special issue using either term, you are instructed that an occurrence is not caused in whole or in part by the negligence of any party if it is due solely to an “Act of God.”

The judgment of the Court of Civil Appeals is affirmed.

McGEE, Justice,

dissenting.

I respectfully dissent.

The Railroad affirmatively pled that the accident was due solely to the washout of its tracks caused by an Act of God and produced substantial evidence that the unprecedented rainstorm caused the washout and subsequent accident. The Railroad insisted that this was a controlling issue and requested the trial court to submit an issue inquiring whether the accident was due solely to an Act of God. I am in agreement with the holding of the majority opinion that the court of civil appeals erred in holding that the Railroad was entitled to a separate issue on the Act of God defense; clearly such an issue would have been an inferential rebuttal issue proscribed by Rule 277.

I disagree, however, with that portion of the opinion that would require the trial court to submit both a definition of an Act of God and an additional instruction on it. The trial court correctly submitted the following definition and instruction:

“You are instructed that by the term ‘Act of God’ as used in this Charge is meant an accident that is due directly and exclusively to natural causes without human intervention and which no amount of foresight or care reasonably exercised could have prevented. The accident must be one occasioned by the violence of nature, and all human agency is to be excluded from creating or entering into the cause. The term implys [sic] the intervention of some cause not of human origin and not controlled by human power. If the derailment resulted in whole or in part from human negligence it was not an ‘Act of God’.
“An occurrence may be an ‘Act of God’, that is, an event not caused in whole or in part by the negligence of any party.”

The majority opinion, as I understand it, would also require that the following instruction be given in the charge after the definitions of “negligence” and “cause in whole or in part”:

“In connection with the above definitions and any special issue using either term, you are instructed that an occurrence is not caused in whole or in part by the negligence of any party if it is due solely to an ‘Act of God’.”

In my opinion, this additional instruction is an unwarranted comment on the weight of the evidence and, therefore, is improper.

Further, I strongly disagree with the majority’s holding regarding the manner in which Special Issue No. 1 was submitted. The broad form of submission used in this case is a permissible means of submitting controlling issues to the jury, Tex.R.Civ.P. 277; see Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974); Members Mutual Insurance Co. v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.), and I do not think additional instructions are necessary. The majority’s opinion, I fear, will lead to the excessive use of explanatory instructions, thus defeating the intent of Rule 277 to have a simpler special verdict system.

I would reverse the judgment of the court of civil appeals and affirm that of the trial court.

ON MOTION FOR REHEARING

The plaintiff, Allen J. Scott, contends that since this suit was brought under the Federal Employers’ Liability Act, 45 U.S.C.A., § 51 et seq., his substantive rights are governed by federal law and cannot be interfered with, lessened or destroyed by a State rule of practice or procedure. Arnold v. Panhandle & Santa Fe Ry. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889 (1957); Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Brown v. Western Railway of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100 (1949); Texas & Pac. Ry. Co. v. Younger, 262 S.W. 557 (Tex.Civ.App.1953, writ ref’d n. r. e.); 79 A.L.R.2d 553, 559. We agree with this basic premise. We do not agree, however, that any of the plaintiff’s substantive rights have been denied by this remand for a new trial in accordance with the Texas Rules of Civil Procedure.

Our decision does not relate to burden of proof, the sufficiency of evidence, the right to a jury determination, or any of the other “substantive” rights which have been held to be governed by federal law in F.E.L.A. cases. On the contrary, it deals solely with rules of procedure relating to the form, necessity, and effect of jury issues and instructions. These have been recognized to be procedural rather than substantive when they do not interfere with a right or defense provided by the Act. Chesapeake and Ohio Railway Company v. De Atley, 241 U.S. 310, 36 S.Ct. 564, 60 L.Ed. 1016 (1916); Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868 (Tex.1973); Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111 (1957); King v. Schumacher, 32 Cal.App.2d 172, 89 P.2d 466 (1939), cert. den. 308 U.S. 593, 60 S.Ct. 123, 84 L.Ed. 496; Atlantic Coast Line R. Co. v. Strickland, 87 Ga.App. 596, 74 S.E.2d 897 (1953); Renn v. Seaboard Air Line Ry., 170 N.C. 128, 86 S.E. 964 (1915), aff’d 241 U.S. 290, 36 S.Ct. 567, 60 L.Ed. 1006.

Our decision has put no end to Scott’s alleged rights, and it does not defeat them. It merely requires the assertion and adjudication of those rights to be in accordance with the rules of procedure of the forum which he chose. His principal complaint is that the broad finding of negligence was sufficient to support a judgment under federal law in an F.E.L.A. case. See Arnold v. Panhandle & Santa Fe Ry. Co., supra, and other cases referred to therein. In Arnold a sharply divided Court held that a favorable answer on the broad issue of whether the railroad was negligent in failing to provide the plaintiff with a reasonably safe place in which to do his work was sufficient in spite of unfavorable answers to alleged conflicting specific issues. We would have followed that decision in this case if that broad issue had been requested and the jury had answered it in favor of the plaintiff.

The plaintiff alleged negligence of the railroad “in failing to provide plaintiff with a reasonably safe place in which to do his work,” but he requested no jury finding on that issue. Scott’s evidence of an unsafe place in which to ride or work related to a defective door latch on the locomotive in which he was riding. There was some evidence that the failure of the latch to hold the door shut resulted in plaintiff’s being injured when he was thrown against the open door at the time of the derailment. Instead of requesting the broad form of issue as to unsafe place in which to work, the plaintiff requested a specific issue about the defective latch, and the jury answered it against him. The plaintiff also alleged several other specific acts and omissions as negligence on the part of the defendant. A problem in this case arose by reason of the presence in the case of considerable evidence which went far beyond the plaintiffs allegations of the facts upon which he was relying. It was for this reason that we determined that a plaintiff may have a broad negligence issue, but by the wording of the issue or by complementary instructions the jury will be precluded from considering matters that go beyond what he alleged and what he thus put the defendant upon notice as his grounds for recovery. This is the procedure required by Texas Rules of Civil Procedure 277 and 279.

Texas Rule 277

Plaintiff also contends that our decision is contrary to our own Rule 277 and our statement concerning the broad submission of negligence in Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974). We disagree. On the contrary, we recognized that Rule 277 gives the trial court discretion “to submit separate questions with respect to each element of a case or to submit issues broadly.”

While the writer considers the checklist system authorized by Rule 277 to be preferable in ordinary negligence cases involving multiple acts and omissions, the court said in Mobil, and we reaffirm, that:

The rule (Rule 277) means that in- an ordinary negligence case, where several specific acts of negligence are alleged and evidence as to each is introduced, the submission of a broad issue inquiring generally whether the defendant was negligent is not error and is not subject to the objection that the single issue inquires about several elements or issues. 517 S.W.2d at 255.

If there is a variance between the pleadings and the proof, we have now held further that, upon proper request, the trial court should limit a broad issue to those acts or omissions which are included within the pleadings and supported by some evidence. Rules 277 and 279. As clearly stated in our opinion, this does not require separate questions as to each of such acts or omissions. The limitation may be accomplished by including in a single issue all of the alleged negligent acts or omissions which are raised by the pleadings and evidence, as: “Was the defendant negligent in _ or _ or _?” We have further set forth an alternative method of complying with this requirement by submitting a broad negligence inquiry and following it with a complementary instruction which would limit the jury to consideration of the specified acts or omissions raised by the pleadings and the evidence. Or, as heretofore indicated, the checklist form may be used as another means of broad submission.

The motion for rehearing is overruled.

      . Article 6328, referred to in the allegations, provides:
      “In no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as a natural lay of the land requires, for the necessary draining thereof.”
      All statutory references herein refer to Vernon’s Annotated Texas Civil Statutes unless otherwise noted. Citations to Rules refer to the Texas Rules of Civil Procedure.

      . Special Issue No. 1 read: “Do you find from a preponderance of the evidence that on the occasion in question the railroad was negligent?” Special Issue No. 2 inquired if “such negligence was a cause in whole or in part of the injuries suffered by Mr. Scott.” Both were answered “We do” with a notation at the side of the answers “10 for.” Special Issue No. 3 read: “Do you find from a preponderance of the evidence that the door latch on the locomotive in question was not in proper and safe condition on the occasion in question?” To this the answer was “We do not.” The verdict was signed by the ten jurors.

      . Hodges, Special Issue Submission in Texas, 4-5 (1959). Professor Hodges writes: “The facts to be inquired about in the charge must have been, alleged in the pleading. There must also be evidence of the alleged facts to support each of the issues submitted.” See also Note, Civil Procedure—Texas Special Issue Practice, 52 Tex.L.Rev. 376, 383 (1974).

      . See Pope and Lowerre, Revised Rule 277 — A Better Special Verdict System for Texas, 27 S.W.L.J. 577 (1973).

      . See Sample Charge “A” in the 1973 Cumulative Supplement in the pocket part of Vol. I of Texas Pattern Jury Charges, pages 11-12.

      .With reference to City of Austin v. Powell, supra, Professor Hodges comments that the same result could have been reached by reasoning that “since . . . the error can be cured by a change in the wording of the issue, a defect in the issue, reachable by objection, rather than a failure to submit an explanatory instruction, was presented.” Hodges, Special Issue Submission in Texas, p. 173..

      . Such issues are defined as denial issues, defenses that seek to rebut liability in terms of offering a non-negligent explanation for the occurrence of a sole non-human cause. Hodges, Special Issue Submission in Texas, § 15 et seq. Professor Hodges lists “unavoidable accident” and “sole proximate cause” as inferential rebuttal issues. Id. § 19 at p. 50. Both have aspects of the defensive concept of “Act of God.” The concept includes the theory that physical, non-human circumstances, were the sole cause of the accident or occurrence, thus negating negligence as a causative factor.

      . Pope, A New Start on the Special Verdict, 37 Tex.B.J. 335, 337 (1974); Pope and Lowerre, Revised Rule 277—A Better Special Verdict System for Texas, 27 Sw.L.J. 577, 587 (1973).

      .“You are instructed that by the term ‘Act of God’ as used in this Charge is meant an accident that is due directly and exclusively to natural causes without human intervention and which no amount of foresight or care reasonably exercised could have prevented. The accident must be one occasioned by the violence of nature, and all human agency is to be excluded from creating or entering into the cause. The term implys [sic] the intervention of some cause not of human origin and not controlled by human power. If the derailment resulted in whole or in part from human negligence it was not an ‘Act of God.’ ”

      . This should be followed by the definition of “Act of God,” submitted by the railroad and quoted in the preceding footnote 9.

      . At the time of the accident plaintiff was riding in the cab of one of the engines on his way back to his residence in Silsbee, having completed his hours of work as a brakeman prior to the train’s departure from Somerville.

      . Special Issue No. 3, requested by plaintiff, read:
      “Do you find from a preponderance of the evidence that the door iatch on the locomotive in question was not in proper and safe condition on the occasion in question?” To this the answer was “We do not.”

      . See paragraph 4 of Rule 277 and Sample Charge “A” in the 1973 Cumulative Supplement of Vol. I of Texas Pattern Jury Charges, pages 11-12.


source: Caselaw Access Project

author: DANIEL, Justice.

license: Public Domain

text:
    Gail G. SCARBOROUGH, Petitioner, v. AETNA LIFE INSURANCE COMPANY, Respondent.
    No. B-7157.
    Supreme Court of Texas.
    March 29, 1978.

      Roger L. Turner, Dallas, for petitioner.
    Woodfin C. Henderson, Dallas, for respondent.
   DANIEL, Justice.

The question presented by this case involves the right to benefits under a medical insurance policy.

Gail Scarborough’s husband was included in a group accident and health insurance policy issued through his employer by Aet-na Life Insurance Company. The policy provided comprehensive medical benefits for Mrs. Scarborough as a member of an insured employee’s family. The medical coverage was limited by a continuing treatment exclusion which provided in part:

If, at the time a family member becomes insured under this Title, he has received treatment for a condition resulting from a disease or injury during the three month period just before he became insured under this Title, Covered Medical Expenses for that condition are subject to the limitations described below. Treatment of a condition means receiving either medical services or prescribed drugs or medicines.
1. Any expenses incurred in connection with such condition during the first twelve months while insurance is in force will not be considered Covered Medical Expenses.

The insurance policy went into effect on June 16, 1974. On July 1, 1974 Mrs. Scarborough underwent surgery for a complete hysterectomy and for removal of abdominal adhesions.

While the surgical expenses were covered by the comprehensive medical provisions of the policy, Aetna took the position that the continuing treatment exclusion applied and refused to pay Mrs. Scarborough any benefits. Aetna contends that the surgical expenses were incurred in connection with a condition for which Mrs. Scarborough had been treated during the three-month period prior to the policy’s effective date.

The jury found that during the three-month period preceding June 16, Mrs. Scarborough did not receive treatment for a condition which related to her July 1 surgery. Accordingly, the trial court rendered judgment for her in the amount of the medical expenses incurred as a result of the surgery. The Court of Civil Appeals reversed and rendered judgment for Aetna on the ground that the continuing treatment exclusion applied to her surgery. 556 S.W.2d 109. The court held there was no evidence to support the jury’s finding of no prior treatment of the condition.

On June 6, 1974, Mrs. Scarborough went to Dr. James Ensey, a gynecologist, for an annual physical examination. That examination revealed abdominal adhesions, an abnormal ovarian function, and that Mrs. Scarborough’s ovaries were enlarged. Dr. Ensey testified that nothing revealed at the June 6 examination indicated that surgery was necessary at that time. However, he asked that she return for further examination on June 17 (the day after the insurance policy went into, effect). While Dr. Ensey testified that she showed some improvement on that date, his written report compiled as a result of this examination concluded with the recommendation of an ovarian excision.

After she developed abdominal pains, Mrs. Scarborough went to the hospital on June 30 at the direction of Dr. Ensey. After a third examination to verify Mrs. Scarborough’s conditions of failing ovaries and abdominal adhesions, Dr. Ensey performed surgery on her the next day.

Aetna contends that since the June 6 examination revealed the conditions which necessitated Mrs. Scarborough's surgery, that examination was a medical service constituting treatment of a condition under the continuing treatment exclusion of the insurance policy. The Court of Civil Appeals sustained Aetna’s contention, relying on Provident Life & Accident Insurance Company v. Hutson, 305 S.W.2d 837 (Tex.Civ.App.—Beaumont 1957, writ ref’d n. r. e.). Hutson involved an accidental death insurance policy with an exclusion of benefits if the insured’s death was caused by medical or surgical treatments. While undergoing diagnostic surgery, the insured in Hutson died. The court held that his death was the result of medical treatment as a matter of law and denied benefits under the insurance policy.

The Hutson court adopted the general rule that “medical treatment” includes more than an operation or a prescription of drugs to relieve or cure a patient’s condition. The court stated that the term also covers a preliminary examination given for the purpose of diagnosing an ailment or infirmity. International Travelers Association v. Yates, 29 S.W.2d 980 (Tex.Com.App. 1930, jdgmt. adopted); McKay v. Bankers Life Company, 187 N.W.2d 736 (Iowa 1971); Zeh v. National Hospital Association, 233 Or. 221, 377 P.2d 852 (1963); United Commercial Travelers v. Shane, 64 F.2d 55 (8th Cir. 1933).

The insurance policy in Hutson excluded benefits if the insured’s death resulted from any medical treatment. However, in the present case, the exclusion applies only if the insured has received “medical treatment for a condition resulting from a disease or injury.” That is, for the exclusion to apply it is necessary that the insured received a medical service (which may be a preliminary examination) directed toward a known condition. The distinction is that in Hutson the exclusion was triggered by mere treatment, while Mrs. Scarborough’s policy required treatment for a condition. Additionally, the surgical examination in Hutson was given for the purpose of diagnosing the insured’s ailment, while the June 6 examination in the present case was only a routine physical check-up.

There is evidence in the record that Mrs. Scarborough was not treated during the three months preceding .the effective date of the policy for the condition which necessitated the July 1 surgery. Both Mrs. Scarborough and Dr. Ensey testified that no more than a routine physical examination was conducted by Dr. Ensey on June 6. Moreover, Aetna offered no evidence to contradict their testimony. It was error for the Court of Civil Appeals to set aside the jury finding that Mrs. Scarborough had not received treatment for a condition during the three-month period preceding the effective date of the policy.

The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.


text:
    COASTAL PLAINS DEVELOPMENT CORPORATION et al., Petitioners, v. MICREA, INC., Respondent.
    No. B-7035.
    Supreme Court of Texas.
    April 26, 1978.
    Rehearing Denied June 21, 1978.

      Leland B. Kee, Angleton, for petitioners.
    John Mercer, Houston, for respondent.
   DANIEL, Justice.

This is an action for breach of a contract involving the development and sale of lots in a Brazoria County subdivision. Micrea, Inc., the promoter and seller of lots, brought suit against the landowner, Coastal Plains Development Corporation, and its president and principal stockholder, Charles L. DuCroz. The trial court, after trial to a jury, rendered judgment for Micrea in the sum of $123,393.94. This was affirmed by the Court of Civil Appeals, 553 S.W.2d 816. We reverse the judgment of the courts below and render judgment for Coastal Plains, et al.

The contract which was allegedly breached had its inception in July of 1970. At that time, DuCroz and Jack Adler, president of Micrea, reached an oral agreement concerning the development and subdivision of a tract of land in Brazoria County owned by Coastal Plains. On July 31, 1970, the verbal agreement was reduced to writing.

The contract originally called for the development of a 200-acre portion of the tract, although a subsequent amendment increased the amount of land involved to 720 acres. The duties and responsibilities of each party were delineated by the contract. Coastal was obligated to have the tract subdivided and platted. In addition, it was required to arrange for the construction, improvement and maintenance of the dedicated roadways in the subdivision, until such roads were accepted by the Commissioner’s Court of Brazoria County. Coastal Plains was solely responsible for the costs associated with the performance of its contractual duties. Micrea’s required performance consisted of offering the lots in the subdivision for sale, and conducting a sales promotion program. All costs arising from these activities were the sole responsibility of Micrea.

Micrea was granted an option by the contract to purchase all lots in the subdivision. The lots were to be sold on a contract of sale basis. The determination of the amount of the down payment collected and the length of the payout period (not to exceed 180 months) was to be made by Micrea in the exercise of its discretion. If the down payment amounted to 20% or less of the total purchase price of the lot, Micrea was entitled to retain such amount to defray its overhead costs. Any amount in excess of 20% was to be forwarded to Coastal Plains. The 20% of cost down payment figure was an estimate which was subject to adjustment to meet actual costs incurred. Net profits were to be equally divided.

Two provisions of the contract are of special importance to the decision of this case. The first, in paragraph VI, reads:

“Both parties shall jointly approve and execute all contracts pertaining to said improvements and development of the subject property.”

Paragraph X of the contract provides:

“It is expressly understood and agreed that the performance by the respective parties of their respective obligations under the terms of this contract shall not constitute the parties as partners in connection therewith and neither is the performance of this contract by the respective parties to be considered a joint venture, but to the contrary each party shall be solely responsible for the performance of the respective obligations herein contracted to be undertaken by each respective party.”

The development plan was implemented, the subdivision and platting completed, and the road construction was commenced by the road contractor. Micrea embarked on a promotion campaign and actually negotiated the sale of approximately $200,000 worth of lots.

In October of 1970, Micrea submitted an invoice to Coastal Plains in the amount of $13,618.94. This figure represented overhead costs which had not been defrayed by the retained down payments. This invoice was not paid by Coastal Plains. Road building activities ceased, Micrea withdrew its sales force from the subdivision, and the project floundered.

As stated, the trial court rendered judgment for Micrea on a jury verdict in the amount of $123,393.94, representing $109,-695.00 in lost profits and $13,698.94 in stipulated expenses.

The Court of Civil Appeals’ affirmance was by a divided court, with the majority’s principal holdings being that Micrea and Coastal were, in fact, joint ventures and, therefore, exempt from the requirements of the Real Estate License Act. For the reasons hereinafter stated, we reverse and here render judgment that Micrea, Inc., take nothing by its suit.

Joint Venture

It is a general rule of construction that when parties have bound themselves to an unambiguous contract, the courts will give effect to the manifest intent expressed therein. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex.1968). However, when the record demonstrates that the actual effect of the arrangement resulting from the agreement is to create a status different from that stated in the language of the contract, the parties’ designation will not control. Neece v. A.A.A. Realty Co., 159 Tex. 403, 322 S.W.2d 597 (1959).

Paragraph X of the contract expressly negatives any intent on the behalf of the parties to create a joint venture or partnership. However, Micrea attempted to establish the existence of a joint venture by showing that such a relationship arose by the actual operation under the contractual provisions. It insists that the reality of the contractual arrangement varied from the intent expressed in paragraph X. We disagree.

A joint venture, being “ex con-tractu,” must be based upon an agreement, either express or implied. Donald v. Phillips, 13 S.W.2d 74 (Tex.Com.App.1929, judgmt adopted); Fuller v. Flanagan, 468 S.W.2d 171 (Tex.Civ.App.1971, writ ref’d n. r. e.); Henning v. Cox, 148 F.2d 586 (5th Cir. 1945); 2 S. Williston, Williston on Contracts § 318A (3d ed. 1959). Beyond this threshold requirement, several essential elements are generally recognized. These elements are (1) a community of interest in the venture, (2) an agreement to share profits, (3) an agreement to share losses, and (4) a mutual right of control or management of the enterprise. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704 (1956); Luling Oil & Gas Co. v. Humble Oil and Refining Co., 144 Tex. 475, 191 S.W.2d 716 (1945); Chandler v. Herndon, 450 S.W.2d 703 (Tex.Civ.App. 1970, writ ref’d n. r. e.). The intention of the parties to a contract is a prime element in determining whether or not a partnership or joint venture exists. Luling Oil & Gas Co. v. Humble Oil and Refining Co., supra; Holman v. Dow, 467 S.W.2d 547 (Tex.Civ.App.1971, writ ref’d n. r. e.).

It is undisputed that'the relationship between the parties is based upon a valid written contract. As evidence of the existence of the remaining elements of a joint venture, Micrea relies upon the actions of the parties and the operative provisions of the contract, including (1) the paragraph which calls for an equal division of the profits, (2) the paragraph, quoted above, which requires joint approval and execution of all contracts concerning the development, and (3) the dissemination of certain advertising material which referred to the Cedar Lake Estates, the subject subdivision, as a joint venture of Micrea and Coastal Plains.

We are not persuaded by the description of the relationship in the advertising material. Just as the words used by the parties in a contract do not necessarily control the substance of the relationship, the terms used by the parties in referring to the arrangement do not control. Further, there is no claim by any party that the representations in the advertising material were relied upon, so as to raise an issue of estoppel.

Even if the provision for equal division of profits was sufficient, the contract did not have any agreement for sharing the losses. The latter was essential to constitute a joint venture. Micrea contends that this requirement was met by the “joint approval and execution of contracts” clause in the contract. However, by the express terms of the contract, Coastal Plains was solely responsible for the costs of road building. Although the contract also states that Mi-crea is solely responsible for the costs of advertising and selling, these costs were to be offset by the retained down payments. If the retained money failed to compensate Micrea for its overhead costs, Micrea could, and did, invoice Coastal Plains for the difference. In fact, one facet of the instant cause of action is Micrea’s plea for recovery of $13,698.94 in unpaid overhead costs. The only other costs upon which evidence was presented was a $180,000 loan evidenced by a note signed by Micrea, Adler, Coastal Plains, DuCroz, and Mr. DuCroz’s mother and father. However, the collateral for the loan was the land owned by Coastal Plains.

Based upon the clearly expressed intent of the parties, and the absence of any contrary provision for the sharing of losses, we hold that the parties were not participants in a joint venture.

Real Estate License Act

Coastal Plains contends that Micrea cannot prevail in this action because it has not complied with § 19 of Article 6573a, the Real Estate License Act. We agree. That section prohibits suits for compensation for certain name services by a person or company not duly licensed as a real estate broker or salesman at the time the services are commenced.

Although the president of Micrea, Adler, was duly licensed at all times relevant to this ease, it is undisputed that Micrea was not so licensed until September 2, 1970.

The services referred to in § 19 are set forth in § 4(1) of Article 6573a. They include selling, offering to sell, negotiating the sale of or advertising or holding oneself out as being engaged in the business of selling real estate. The undisputed evidence establishes that the contract between Micrea and Coastal was negotiated, advertising and promotion begun, and some lot sales consummated prior to September 2, 1970. These actions clearly fall within the terms of § 4(1).

Micrea asserts that, even though it was not properly licensed at all times, the lost profits for which it sues all relate to the period of time after the issuance of its license. This argument must fail because § 19 clearly requires that the entity seeking compensation be licensed at the time the services were commenced. Again, the undisputed evidence establishes that the services performed pursuant to the contract began no later than July of 1970. Thus, the services were commenced at a time when Micrea was unlicensed.

Micrea would distinguish the instant case from one subject tc the provisions of the Real Estate License Act on the basis that this is a suit for damages occasioned by a breach of contract, not a suit for compensation. The term “compensation” as used in § 19 is defined in § 4(5) to “include any fee, commission, salary, money or valuable consideration, as well as the promise thereof and whether contingent or otherwise.” (Emphasis supplied.) This action is one for lost profits which are nothing more or less than anticipated “compensation” for the rendition of the services of a real estate broker or salesman.

As another basis for avoiding the applicability of § 19, Micrea points out that Jack Adler was duly licensed at all relevant times. This fact is asserted to establish substantial compliance with the provisions of the Act. Without expressing an opinion as to whether this fact would constitute substantial compliance, we hold that substantial compliance will not suffice. An entity seeking to recover compensation for any of the services listed in § 4(1) of the Act must strictly comply with § 19 in order to use the courts of this State. Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960); Elrod v. Becker, 537 S.W.2d 84 (Tex.Civ.App.1976, writ ref’d n. r. e.); Macphee v. Kinder, 523 S.W.2d 509 (Tex.Civ.App.1975, no writ).

Lastly, Micrea contends that even if it is applicable by its terms, Coastal Plains waived § 19 by failing to plead it as an affirmative defense, pursuant to Rule 94. A reading of § 19 reveals that the burden of pleading and proving licensure is placed upon the party seeking to use the courts to collect compensation, and it has been so held. Hall v. Hard, supra. This interpretation of § 19 is supported by the “strict compliance” rule stated by the previously cited cases.

Although Coastal Plains did not plead Micrea’s lack of proper license, at the close of the presentation of Micrea’s case, Coastal Plains moved for an instructed verdict on that very basis.- Micrea’s counsel did not claim surprise, but rather argued that his client was exempt from the licensing requirement as a joint venturer. The motion for instructed verdict timely called the trial court’s attention to Micrea’s failure to plead and prove licensure, and, thus preserved any error of the trial court in not dismissing the action.

Accordingly, the judgments of the courts below are reversed and judgment is here rendered that Micrea, Inc., take nothing by its suit against Coastal Plains Development Corporation and Charles L. DuCroz.

ON MOTION FOR REHEARING

On motion for rehearing it was called to our attention that our judgment did not take into account a separate portion of the trial court’s judgment from which no appeal had been prosecuted. At trial Coastal Plains Development Corporation and Charles L. DuCroz prosecuted a cross-action against Micrea, Inc., and Jack Adler for an alleged breach of the contract in question. The trial court rendered judgment on the jury verdict that Coastal Plains and DuCroz take nothing on their cross-action. No appeal was taken from that portion of the trial court’s judgment, and this Court did not intend to reverse that portion of the trial court’s judgment.

For the limited purpose of correcting our judgment in this respect, Micrea’s motion for rehearing is granted, and the judgment of this Court embodied in the last paragraph of our opinion of April 26, 1978, is changed to read as follows:

That portion of this cause consisting of a cross-action by Coastal Plains Development Corporation and Charles L. DuCroz against Micrea, Inc., and Jack Adler, and the judgment of the trial court that Coastal Plains and DuCroz take nothing against Micrea and Adler, is severed from Micrea’s original cause of action against Coastal Plains and Charles L. DuCroz. As to the remaining cause of action, the judgments of the courts below are reversed and judgment is here rendered that Micrea, Inc., take nothing in its action against Coastal Plains and Charles L. DuCroz. Rule 503, Tex.R.Civ.P.

In all other respects, Micrea’s motion for rehearing is overruled.

      . Article 6573a, Vernon’s Annotated Texas Civil Statutes. All citations are to Vernon’s Annotated Texas Civil Statutes unless otherwise indicated.
      Article 6573a has been amended substantially since 1970, but this case is governed by the language of the statute as of that date.

      . “Sec. 19. No person or company may bring or maintain any action .for the collection of compensation for the performance in this State of any of the acts set out in subdivision (1) of Section 4 hereof without alleging and proving that the person or company performing the brokerage services was a duly licensed real estate broker or salesman at the time the alleged services were commenced; or was a duly licensed attorney-at-law as exempt from the provisions of this Act by Section 6.”


author: SAM D. JOHNSON, Justice. DANIEL, Justice,

text:
    CITY OF CORPUS CHRISTI, et al., Appellants, v. PUBLIC UTILITY COMMISSION of Texas, et al., Appellees.
    No. B-7028.
    Supreme Court of Texas.
    May 17, 1978.
    Rehearing Denied July 5, 1978.

      McGinnis, Lochridge and Kilgore, B. D. St. Clair and Robert C. McGinnis, Austin, for appellants.
    Dyer, Redford, Burnett, Wray & Wool-sey, W. N. Woolsey, Corpus Christi, John L. Hill, Atty. Gen., Joyce B. Carpenter, Asst. Atty. Gen., Austin, for appellees.
   SAM D. JOHNSON, Justice.

The instant case requires an interpretation of the Public Utility Regulatory Act, Article 1446c, Texas Revised Civil Statutes Annotated, and presents a central issue of first impression.

Appellants Corpus Christi, et al., here seek direct appellate review of the order of the district court refusing to enjoin enforcement of the final order of the Public Utility Commission granting an increase of electric utility rates for Central Power and Light Company within appellant cities. The jurisdiction of the Supreme Court is alleged pursuant to Article V, Section 3-b, Texas Constitution, Article 1738a, Texas Revised Civil Statutes Annotated, and Rule 499a, Texas Rules of Civil Procedure, which provide for direct appeal to this court of any order of the trial court granting or denying an injunction on the grounds of the validity or invalidity of an administrative order. Appellants are thirty-two of the one hundred seven incorporated cities provided electric utility service by appellee Central Power and Light in a service area comprising forty-four counties and one hundred forty-four thousand square miles in South Texas.

Central Power and Light filed a statement of intent to change rates with each of the thirty-two cities under the Public Utility Regulatory Act, supra, Section 43(a). Each city requested that Central Power and Light provide information as to “rate base, revenue, expenses, investment and rate of return” within the boundaries of each municipality pursuant to Section 23 of the Act in order to make its individual determination of the requested rate increase. Central Power and Light declined to furnish the “separated data” requested by each city and tendered instead uniform “system-wide data.” The term “separated data” refers to that information regarding assets and operations of the utility solely within each particular municipal boundary. “System-wide data” refers to information regarding the assets and operations of the. utility throughout the entire area it serves without a breakdown as to individual cities served.

The Public Utility Regulatory Act, Section 17(a), provides that municipalities will continue to have exclusive original jurisdiction over rates within their boundaries, but under Section 17(d) the Public Utility Commission is vested with appellate jurisdiction. Pursuant to such provisions involving electric rates and after each city denied the requested rate increase, Central Power and Light appealed to the Public Utility Commission, which consolidated each of the cities’ cases as its Docket No. 167, et al. The Commission heard the case on the system-wide data presented by Central Power and Light over the cities’ objection. This action by the Commission, hearing the case on the system-wide data, occasions the principal question to be resolved in the case at bar. Upon Central Power and Light’s request, the Commission granted an interim order setting temporary rates on January 24, 1977.

As will be more fully explained, the Commission, on February 23, 1977, entered an interim order nunc pro tunc setting forth a finding of imminent peril not included in the January 24 order. The final order was entered by the Commission on February 25, 1977 granting a rate increase of approximately $23,000,000. The litigation in Public Utility Commission Docket No. 167, et al., is now before this court in two distinct matters: an application for writ of error predicated on the interim order of January 24, 1977; and the instant direct appeal.

THE APPLICATION FOR WRIT OF ERROR

After the Commission entered its interim order setting temporary rates on January 24, 1977, the cities filed suit in the 98th district court of Travis County to enjoin enforcement of the interim order. The cities contended that the interim order was invalid as the Commission had no express or implied power to set temporary rates under the Public Utility Regulatory Act. Further, the cities urged that the interim order was invalid for failure to recite a finding of “imminent peril to • the public health, safety, or welfare” as required by the Administrative Procedure Act, Article 6252-13a, Section 16(c), Texas Revised Civil Statutes Annotated. The 98th district court of Travis County granted a temporary injunction. Central Power and Light appealed to the court of civil appeals.

In points 1 and 2 of their brief in the court of civil appeals the cities again attacked the validity of the interim order. Point 1 attacked the interim order on the grounds that the Commission had no express or implied authority under the Public Utility Regulatory Act to make temporary orders in cases it heard on appeal from a determination of a municipality. Point 2 reurged the cities’ argument that the interim order was invalid for failure to comply with the Administrative Procedure Act, Section 16(c), requiring that the orders of all administrative agencies to be given immediate effect contain a finding of “imminent peril to the public health, safety, or welfare.” The court of civil appeals reversed and rendered the judgment of the trial court and vacated the temporary injunction. Public Utility Com’n v. City of Corpus Christi, 555 S.W.2d 509 (Tex.Civ.App.—Waco 1977, writ filed). The cities then filed an application for writ of error which is now pending before this court in No. B-7136, City of Corpus Christi, et al. v. Public Utility Commission of Texas, et al. In points of error 3, 4, and 5 of their application for writ of error to this court the cities again urge that the interim order is invalid as the Public Utility Commission was without express or implied authority to enter a temporary order in an appellate case under the Public Utility Regulatory Act. Further, the cities reassert that the interim order is rendered invalid because the Public Utility Commission failed to find the “imminent peril” required by the Administrative Procedure Act, Section 16(c).

THE DIRECT APPEAL

Meanwhile, following the entry of the Commission’s final order of rate increase on February 25, 1977, the cities filed a second and distinct suit to enjoin enforcement of the final order of the Commission. The 126th district court of Travis County denied the requested injunction. The cities then instituted the instant direct appeal to the Supreme Court of the trial court’s denial of the injunction on the basis of the validity of an administrative order. The thrust of the cities’ argument in the trial court, and again as their points of error 1 through 5 in this direct appeal, is that the final order is invalid as it is based upon system-wide data, rather than data separated according to each municipality as they allege is required by the Public Utility Regulatory Act.

However, as their point of error number 6 in this direct appeal, the cities again urge that the interim order is invalid as it goes beyond the express or implied powers of the Public Utility Commission under the Public Utility Regulatory Act. Again, the cities assert that the absence of the finding of “imminent peril” required by Section 16(c) of the Administrative Procedure Act further invalidates the interim order.

Appellee Central Power and Light argues that this court has no jurisdiction to review the cities’ point of error number 6 by direct appeal as the cities have previously attacked the same interim order on the same grounds in the court of civil appeals, albeit in the appeal of a different cause of action. The basis of Central Power and Light’s assertion is Rule 499a which sets forth the procedures applicable to direct appeal. Rule 499a(c) provides that “[s]uch appeal shall be in lieu of an appeal to the Court of Civil Appeals . . . .” Tex.R.Civ.P. 499a(c). This court has long recognized the logical implication of Rule 499a that an appellant must choose between an appeal to the court of civil appeals and a direct appeal to the Supreme Court and cannot pursue both. Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235 (1947).

Rule 499a creates an option for an appellant coming within its application. An appellant may proceed by regular appeal to the court of civil appeals or an appellant may elect to pursue a direct appeal to the Supreme Court. An appellant may do either, but an appellant may not do both. The cities exercised no election to pursue the appeal to the court of civil appeals in the cause involving the interim order; they had no reason to do so as the trial court’s injunction was in the cities’ favor. Rather, it was the Commission and the utility which exercised their option as appellants to appeal to the court of civil appeals in that case. On the other hand, it is the cities who are appellants in the instant case. As appellants, it is the cities which have elected to pursue this direct appeal to the Supreme Court in lieu of an appeal to the court of civil appeals.

Central Power and Light argues, however, that the cities, by asserting their argument defensively in the cause involving the interim order in the court of civil appeals, chose review of the merits of point number 6 by the intermediate appellate court and foreclosed Supreme Court jurisdiction by direct appeal in the instant case. We are of the opinion that the exercise of Central Power and Light’s option for court of civil appeals review in a different cause of action will not infringe the cities’ Rule 499a option to seek direct appeal consideration here. Central Power and Light, not the cities, initiated appeal to the court of civil appeals. The cities were called upon to defend in the court of civil appeals by asserting invalidity of the interim order and properly did so. However, resolution of the question of this court’s direct appeal jurisdiction over individual point of error number 6 is not necessary to sustain the court’s jurisdiction in this direct appeal. Where the Supreme Court has appellate jurisdiction of any issue it acquires “extended jurisdiction” of all other questions of law properly preserved and presented. Harry Eldridge Co. v. T. S. Lankford & Sons, Inc., 371 S.W.2d 878 (Tex.1963). It is undisputed that this court properly has direct appeal jurisdiction of the cities’ points of error 1, 2, 3, 4, and 5. We hold that this court also has jurisdiction to consider the cities’ point of error number 6.

THE SEPARATED DATA ISSUE

The cities present several points of error, the thrust of which is objection to Central Power and Light’s failure to provide the cities with data for rate setting which has been separated to reflect information on a city-by-eity basis. There is no dispute that the utility must provide information. Nor is it disputed that the utility here furnished all of the information of which it was possessed which was requested by the cities or by the Commission. Further, the Commission here made a specific finding that the utility furnished each of the cities sufficient information from which the cities could have calculated the proper rate to be charged to each of the classes of customers within the cities.

The cities were not requesting information which appears on the utility’s records, but were requesting that a study be made by the utility and the results of that study in a form separated and allotted to each individual municipality be furnished to the cities. The study made by the utility allocated costs by class of customer, but did not allocate or separate costs by geographic area. The issue which must be resolved is, under the Act, which party has the burden of making the allocation and separation for the geographic area covered by each individual city, the utility seeking a rate increase or the cities themselves?

Section 23 of the Act provides as follows: “Any municipality regulating its public utilities pursuant to this Act shall require from those utilities all necessary data to make a reasonable determination of rate base, expenses, investment, and rate of return within the municipal boundaries. The standards for such determination shall be based on the procedures and requirements of this Act and said municipalities shall retain any and all personnel necessary to make the determination of reasonable rates required under this Act.” Tex.Rev.Civ.Stat.Ann. art. 1446c, § 23.

The cities argue that Section 23 requires them to accept only separated data from the utility. Central Power and Light and the Public Utility Commission take the position that Section 23 requires the utility to provide only that information from which the municipality can calculate the rate base, expenses, investment, and rate of return within the municipal boundaries. Central Power and Light and the Public Utility Commission urge that the utility’s duty was met by the provision of system-wide data here.

The instant case is one of first impression since the enactment of the Public Utility Regulatory Act. We are called upon to interpret the Act in the absence of controlling precedent. The drafters of the Public Utility Regulatory Act included a statement of its purpose in the introductory language of the Act, to establish a “comprehensive” regulatory system. Tex.Rev.Civ. Stat.Ann. art. 1446c, § 2. The Act, read as a whole, attempts to regulate the realities of contemporary utility service systems for the mutual benefit of the publie and the utilities. One of these realities in this state is the existence of large integrated utilities, the facilities of which serve many communities without regard to governmental boundaries. Central Power and Light is such an integrated utility.

The separated as contrasted to the system-wide data controversy has its roots in an earlier period of utility regulation prior to the enactment of the Public Utility Regulatory Act. This court was confronted with the separated data issue in General Telephone Company v. City of Wellington, 156 Tex. 238, 294 S.W.2d 385 (1956). In reversing as confiscatory the telephone rates set by the City of Wellington this court approved the telephone company’s provision of rate-making data from the entire exchange including both city and rural areas. However, a municipality’s requirement that the utility provide separated data has been upheld by several courts of civil appeals on a case-by-case basis where such request was reasonable. General Telephone Co. of S.W. v. City of Garland, 509 S.W.2d 927 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.). See also City of Arlington v. Tex. Elec. Serv. Co., 540 S.W.2d 580 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.).

It was against such background of this recurrent issue in utility regulation that the Public Utility Regulatory Act was enacted in 1975, with the Act to become effective as to rate making on September 1, 1976. Reading literally the provisions of Section 23, the municipality must require the utility to furnish certain information, but the burden of making the determination of rate base, expenses, investment, and rate of return is placed upon the municipality. Further, Section 23 requires that the municipality, not the utility, retain the staff necessary to make the determination of reasonable rates. The logical implication of Section 23 is that the burden of separating the required data is upon the municipality, rather than on the utility, and we so hold. This determination is supported by Section 24 which authorizes municipalities to engage consultants to make investigations and recommendations in rate-making proceedings. This Section further provides for the municipality’s recovery of reasonable expenses of rate proceedings from the utility, a provision which obviously is intended to mitigate against disproportionate financial impact to the municipality. In addition, Section 29(a) of the Act assists the city in its rate-making function. This Section authorizes the inspection and copying of the utility’s records, the inspection of the utility’s facilities, and the examination of the utility’s officers, agents, and employees by the city.

This determination finds further support. First, the Act, read as a whole, is consistent with this result. Second, this determination is consistent with the interpretation given to the Act by the Public Utility Commission. Third, this determination is consistent with the construction mandated by Section 89: “This Act shall be construed liberally to promote the effectiveness and efficiency of regulation of public utilities to the extent that such construction preserves the validity of this Act and its provisions.”

Having resolved that Central Power and Light properly fulfilled its duty under Section 28 by providing system-wide data, we find without merit the cities’ claim that Central Power and Light failed to exhaust its administrative remedies.

The Public Utility Regulatory Act does not require that municipalities establish rates solely on the basis of an allocation of rate base, expenses, investment, and rate of return within the municipal boundaries. Rather, Section 28 requires that the municipality make a reasonable determination of this data. Section 22 of the Act also provides that “the governing body may consider a public utility’s revenues and return on investment in nonexempt areas.” Tex. Rev.Civ.Stat.Ann. art. 1446c, § 22. [Emphasis added.] In the vocabulary of Section 22 of the Act “nonexempt areas” are those areas outside incorporated boundaries of a municipality exercising its original jurisdiction. Thus, the regulating municipality must determine data within the municipal boundaries and in its determination of rates may consider not only this internal data, but also data from other nonexempt areas of the utility system in setting rates. In the exercise of its appellate jurisdiction the Public Utility Commission is to set those rates which the municipality should have fixed in the ordinance from which the appeal was taken. Tex.Rev.Civ.Stat.Ann. art. 1446c, § 26(e). Further, where the Public Utility Commission considers it appropriate the Commission may treat two or more municipalities served by a utility, as a single class. Tex.Rev.Civ.Stat.Ann. art. 1446c, §38. We hold, therefore, that on appeal the Public Utility Commission properly considered system-wide data in determining rates for the appellant cities served by Central Power and Light. To hold otherwise would ignore the contemporary reality that the assets of an integrated utility simultaneously serve all its customers rendering the allocation of cost on a territorial basis an inappropriate method of rate setting in the context of present-day technology.

THE SURCHARGE ISSUE

The cities also urge that the Public Utility Commission’s final order is invalid because it requires a surcharge on the cities’ ratepayers as a condition of the cities’ recovery from Central Power and Light of rate proceeding expenses. Section 24 of the Act provides that municipalities shall have the right to hire personnel necessary to the investigation and conduct of rate-making proceedings and that the utility shall be required to reimburse such reasonable expenses. Tex.Rev.Civ.Stat.Ann. art. 1446c, § 24. The cities argue that Section 24 creates an unconditional right of recovery for the municipality and that the Public Utility Commission exceeded its authority in conditioning such recovery upon a surcharge.

We need not reach the question of whether the Public Utility Commission may properly condition a municipality’s recovery of costs upon enactment of a surcharge ordinance as that question is not properly before us. In the instant case the Public Utility Commission did not limit the right of the cities to recover expenses from Central Power and Light. The restriction of which the cities complain is the Commission’s “finding of fact” that Central Power and Light “should be allowed to collect from the rate payers in each city a surcharge for the cost of rate expense paid to third parties by it in each of said cities, provided each city determine the reasonable cost of rate expense and finalize same by ordinance and provide for its collection within one year of the date of the ordinance and sets the amount of such expense to be collected from each class of customers, the time and method of billing, such that said expense will be boerne [sic] equitably and rateably by each customer within each class.” [Emphasis added.]

This finding restricts the method by which Central Power and Light may properly pass along this cost to the ratepayer, rather than restricting the cities. Pass through of rate-making costs to the consumer by a surcharge ordinance is a widely recognized rate-making practice. Wabash Valley Elec. Co. v. Young, 287 U.S. 488, 53 S.Ct. 234, 77 L.Ed. 447 (1933). An administrative agency is created to centralize expertise in a certain regulatory area and, thus, is to be given a large degree of latitude by the courts in the methods by which it accomplishes its regulatory function. Railroad Commission v. Houston Natural Gas Corp., 155 Tex. 502, 289 S.W.2d 559 (1956).

Further, this finding is not mandatory by its language and is not included or referred to in that section of the final order which actually sets forth the decree of the Commission. Thus, the finding clearly does not amount to a conditioning of the cities’ Section 24 right to recover costs as the cities assert.

THE TEMPORARY ORDER

Finally, the cities attack the validity of the Public Utility Commission’s temporary order on the grounds that the Public Utility Commission has no statutory power to enter an interlocutory order in exercise of its appellate jurisdiction. The cities alternatively urge that the temporary order is void under the Administrative Procedure Act, Article 6252-13a, Section 16(c), Texas Revised Civil Statutes Annotated, for failure to allege “imminent peril to the public health, safety or welfare.”

The Public Utility Commission entered the interim order of rate increase on January 24, 1977. On February 23, 1977 the Commission entered an interim order nunc pro tunc adding to the January 24 order a finding of imminent peril. The Commission entered its final order on February 25,1977, declaring effective the same rates established under the interim order of January 24. The final order held that the rates were to be effective as of the effective date of the interim order.

An interim or interlocutory order is by definition an order made pending the cause, before a final disposition on the merits. First Nat. Bank of Dallas v. Brown, 122 Tex. 168, 53 S.W.2d 604 (1932); see also Webb v. Jorns, 488 S.W.2d 407 (Tex.1972). The interim order entered by the Public Utility Commission on February 23,1977 by its terms was effective only “until such time as a final hearing shall be had on such rates and a final order is entered therein by this Commission.” The final order of the Public Utility Commission was entered February 25,1977 and such entry has terminated the interim order. As the interim order is no longer effective, no relief therefrom can be granted by this court. It is well-established that when an order under consideration by an appellate court expires prior to its final determination by the appellate court, the issues relating to it are rendered moot. Speed v. Keys, 130 Tex. 276, 109 S.W.2d 967 (1937). We are of the opinion that as the interim order is no longer in effect, no relief therefrom can be granted by this court and the cities’ attack on the validity of the interim order is rendered moot. Therefore, we do not reach the merits of the cities’ complaint as to the validity of the interim order.

The judgment of the trial court refusing to enjoin enforcement of the final order is affirmed.

Dissenting opinion by DANIEL, J., in which CHADICK, J., joins.

GREENHILL, C. J., not sitting.

DANIEL, Justice,

dissenting.

I respectfully dissent.

The effect of the Court’s opinion is to permit regulation of electric utility rates by the Texas Public Utility Commission on a system-wide basis instead of allowing effective original rate-making jurisdiction by individual municipalities within their respective boundaries. This action is said to be justified, on appeals to the Commission, by the following statement:

“To hold otherwise would ignore the contemporary reality that the assets of an integrated utility simultaneously serve all its customers rendering the allocation of cost on a territorial basis an inappropriate method of rate setting in the context of present-day technology.”

This appears to be a policy decision which is in direct conflict with that adopted by the Legislature in the Public Utility Regulatory Act of 1975. Article 1446c, V.A.C.S. (1975). Prior to the adoption of the Act, municipalities were the only public agencies which had the power to regulate the rates here involved. See repealed Articles 1119 et seq. This very issue of state-wide or system-wide regulation by the Commission versus continued regulation by the municipalities within their territorial boundaries was thoroughly considered by the 64th Legislature. Utility companies advocated more centralized control and the Texas Municipal League opposed the whole idea of a State Commission until municipal regulation within the territorial boundaries of municipalities was reserved and retained.

For instance, Senate Bill 42 of the 64th Leg., Reg. Sess. (1975), proposed that the new State Commission should regulate electric and telephone rates and services, without continued local regulation. Various other bills would have diminished the existing powers of the cities to regulate rates within their boundaries, but none of them were adopted. Instead, whether wisely or not, the conference committee opted for a combination of various proposals in a manner which would permit continued local regulation by the cities within their boundaries. The conference committee report, as adopted by the Legislature (Article 1446c), contains the following provisions relating to original municipal jurisdiction within the territorial limits of each municipality:

“Sec. 17. (a) Subject to the limitations imposed in this Act, and for the purpose of regulating rates and services so that such rates may be fair, just, and reasonable, and the services adequate and efficient, the governing body of each municipality shall have exclusive original jurisdiction over all electric, water, and sewer utility rates, operations, and services provided by an electric, water, and sewer utility within its city or town limits. (Emphasis added throughout.)
* * * * * ;fc
“(e) The commission shall have exclusive original jurisdiction over electric, water, and sewer utility rates, operations, and services not within the incorporated limits of a municipality exercising exclusive original jurisdiction over those rates, operations, and services as provided in this Act.
* * * * * *
“Sec. 22. . . . If a municipality does not surrender its jurisdiction, local utility service within the boundaries of the municipality shall be exempt from regulation by the commission under the provisions of this Act to the extent that this Act applies to local service, and the municipality shall have, regarding service within its boundaries, the right to exercise the same regulatory powers under the same standards and rules as the commission, or other standards and rules not inconsistent therewith. .
“Sec. 23. Any municipality regulating its public utilities pursuant to this Act shall require from those utilities all necessary data to make a reasonable determination of rate base, expenses, investment, and rate of return within the municipal. boundaries. The standards for such determination shall be based on the procedures and requirements of this Act and said municipality shall retain any and all personnel necessary to make the determination of reasonable rates required under this Act.”

In view of the above provisions, read in connection with the entire Act, it is difficult to understand how the Court has concluded that the Public Utility Commission properly considered system-wide data in determining rates for the thirty-two incorporated cities served by Central Power and Light instead of separated data as to “rate base, expenses, investment and rate of return within the municipal boundaries” of each of said cities. Surely, on appeal the Commission should base its decision on the same criteria prescribed for the separate municipalities rather than on a different system-wide criteria. Section 26(e) of Article 1446c clearly states that on appeal the Commission must set “rates as the municipality should have fixed in the ordinance from which the appeal was taken.” Whether a rate increase is justified for one municipality cannot be determined on overall system-wide criteria covering 107 incorporated cities in South Texas counties. Under the Act, a city cannot and should not be required to increase the rates within its boundaries simply because the utility has a revenue deficiency in other areas or places.

Prior to the 1975 Act, municipalities had authority to require that utilities provide the separated data referred to in Section 23 of Article 1446c. General Telephone Co. of the S.W. v. City of Garland, 509 S.W.2d 927 (Tex.Civ.App.1974, writ ref’d n. r. e.); City of Arlington v. Tex. Elec. Serv. Co., 540 S.W.2d 580 (Tex.Civ.App.1976, writ ref’d n. r. e.). There is nothing in the legislative history or the words of Section 23 that would indicate an intention of the Legislature to take away this authority from the municipalities. On the contrary, the provisions of Section 23 seem to confer by statute the same authority which had been previously held to exist under prior laws. Dr. Hopper states:

“HB 433 gave the commission authority to require separated data on each city, and have [sic] permitted cities to consider revenues and return in the area outside the city (non-exempt area), when setting rates in the city’s area (exempt area). Cities would retain the power to decide which to use, and whether to require separated data or not. This same language was put into Cl and remains in PURA.”

It would seem that since the Legislature has provided municipalities with original jurisdiction to fix utility rates within their municipal boundaries and the power to require from utilities all necessary data set forth in Section 23 for the purpose of determining such rates, any appeal from a municipality’s decision should likewise be based on the separated data set forth in Section 23 rather than on system-wide data.. I would hold that municipalities may require utilities to furnish the separated data within their municipal boundaries, and that such separated data should be considered on appeal until and unless the Legislature changes the law so as to provide for data to be furnished and rates to be set on a system-wide basis in lieu of the present provisions of Article 1446c relating to original municipal jurisdiction.

CHADICK, J., joins in this dissent.

ON MOTION FOR REHEARING

On motion for rehearing the parties have submitted briefs regarding the holding of our opinion delivered May 17, 1978 that the cities’ attack upon the Public Utility Commission’s interim order is moot. The court has determined that its original determination on mootness should be modified and the cities’ attack upon the interim order be considered on the merits.

Concern for efficient administrative procedure requires consideration of the validity of interim orders only upon appeal from final orders. Lower Colorado River Authority v. Coastal States Gas Producing Company, 551 S.W.2d 340 (Tex.1977). Further, if the interim order should be determined to be invalid, it appears that this court could grant relief by allowing the cities to recover the temporary rates paid under the interim order.

As previously discussed, the cities argue that the Public Utility Commission has no statutory power to enter an interlocutory order in the exercise of its appellate jurisdiction. We cannot agree. Section 16 of the Public Utility Regulatory Act provides that the Commission has the power to regulate public utilities within its jurisdiction and “to do all things, whether specifically designated in this Act or implied herein, necessary and convenient to the exercise of this power and jurisdiction.” Tex.Rev. Civ.Stat.Ann. art. 1446c § 16. The setting of temporary rates pending an appeal of a rate order by the issuance of an interim order is patently necessary and convenient to the exercise of the Commission’s appellate jurisdiction. Accordingly, the Commission was empowered to issue such an order.

Alternatively, the cities assert that the interim order is void for failure to comply with Section 16(c) of the Administrative Procedure Act. Tex.Rev.Civ.Stat.Ann. art. 6252-13a § 16(c). Section 16(c) provides that if an agency finds that imminent peril to the public health, safety, or welfare requires that immediate effect be given to a final decision or order, it may so order with appropriate recitation of such finding. On its face Section 16(c) applies only to final agency orders and does not apply to the interim order here. Therefore, we conclude that the cities’ attack upon the interim order on this basis fails.

For the limited purpose of correcting our writing relative to the interim order and mootness, the cities’ motion for rehearing is granted; in all other respects, such motion for rehearing is overruled.

GREENHILL, C. J., not sitting.

      . Central Power and Light made available to each city an extensive rate filing package, compiled pursuant to Public Utility Commission regulations, which set forth in detail the current financial situation of Central Power and Light.

      . A separate proceeding, the Public Utility Commission Docket No. 91, was simultaneously in progress. Docket No. 91 included both original and appellate proceedings by Central Power and Light for rate increases in rural areas and five cities not parties to the proceedings in Docket No. 167, et al. The cities which are appellant in the instant direct appeal intervened in Docket No. 91. The Commission overruled the objections of the intervenor cities to the system-wide data provided therein by Central Power and Light. The Commission entered its amended final order in Docket No. 91 on January 24, 1977. The entire record of Docket No. 91 was introduced into evidence in Docket No. 167, et al., and thereby made a part of the record in the instant direct appeal.

      .The cities’ argument here is limited to an attack on the power of the Public Utility Commission to fix temporary rates in the exercise of its appellate jurisdiction pursuant to Sections 17(d) and 26 of the Public Utility Regulatory Act. It is undisputed that the Public Utility Commission has the power to fix temporary rates in the exercise of its original jurisdiction. Tex.Rev.Civ.Stat.Ann. art. 1446c, § 43(d).

      . Central Power and Light initially filed this appeal in the court of civil appeals for the third supreme judicial district at Austin. The case was subsequently transferred by order of the Supreme Court to the court of civil appeals for the tenth supreme judicial district at Waco in order to equalize the business of the dockets of the respective courts pursuant to Article V, Section 6, Texas Constitution, and Article 1738, Texas Revised Civil Statutes Annotated.

      . It is to be noted that a contrary determination would enable an integrated electrical utility, for example, Central Power and Light in this instance, to be the object of a myriad of rate cases. Such a result could well be destructive of the Act’s objective: “to establish a comprehensive regulatory system which is adequate to the task of regulating public utilities . . Tex.Rev.Civ.Stat.Ann. art. 1446c, § 2.

      . All statutory references are to Vernon’s Annotated Texas Civil Statutes unless otherwise noted.

      . See Hopper, “A Legislative History of the Texas Public Utility Regulatory Act of 1975,” 28 Baylor L.Rev. 777 (1976). Dr. Hopper, a consulting economist, was a consultant to the legislative Ad Hoc Committee on Utility Regulation and to the Senate Subcommittee on Consumer Affairs during the 64th legislative session in 1975.

      .See 28 Baylor L.Rev. at 785-789.

      . Id. 815. See also “Public Utility Commission: Appellate Procedure and Judicial Review,” 28 Baylor L.Rev. 1001, 1005 (1976), in which it is stated that under the new Act a municipality may “issue orders requesting utilities to provide data on these expenses, investments and rate of return within the municipality’s borders.”