*1
the same into one final
It is from
judgment.
petitioners
judgment
this latter
perfected
appeal.
an
judicial
It is
that a
well settled
judgment
cannot
be corrected
pro
Dunlavy,
nunc
tunc. Perkins
61 Tex.
v.
Zapp,
241 (1884); Coleman v.
491,
(1912).
tion to consider
of error
presented
appeal
other than
those
PER CURIAM.
judgment May 11,
from the
1964.
the Court of
reported
in this case is
in
(1965). of error writ refused, no reversible Rule error.
Texas Rules of Civil ac Procedure. This not, however,
tion ap to be taken as
proval of the Court of organization that a en charitable FIREMEN’S AND CIVIL POLICEMEN’S non-charitable, gaged in profit-making ac SERVICE OF the CITY OF COMMISSION tivities immunity is entitled from tort Texas, al., ARTHUR, Petitioners, PORT et liability under the rule law announced University Clayton, Southern Methodist HAMMAN, Respondent. Glenn F. (1943) Tex. S.W.2d 749 Baptist
followed in Watkins v. Southcrest No. A-11060. Church, 399 (Tex.Sup.1966). S.W.2d 530 Supreme Texas. granted for sum- trial court motion May 25, mary respondent, judgment in favor of 29, 1966. Rehearing Denied June Northwest Metho- Texas Conference of the Episcopal against dist The claim Church.
respondent, Company, Elevator was Otis judgment
severed entered and a final was 4,1963. taken November No
from this judgment. On
judgment pro tunc entered de- nunc
claring be inter- the earlier
locutory merge purporting nature *2 Robichau, Jr., Beaumont, Cary
H. P. Arthur, Young, petitioners. Port Beaumont, Keith, Mehaffy Weber, & respondent.
STEAKLEY, Justice. Hamman, policeman F. Glenn suspend- Inspector, indefinitely rank of byed Director of Police of Port Texas, 13,1964. appealed to the He Firemen’s and Policemen’s Civil Service Commission which reduced person delivered in suspended to such to six pay. appealed employee He officer or department said * this order to the court. district On head. again indefinitely Hamman was “ * * * hearing civil service suspended for different acts and this sus- hereunder, department *3 the hereby head is pension upheld upon appeal was to the restricted to his official written statement again appealed Commission. He charges, and amended, which not be shall appeals district court the two where were and may complained no act or acts up- consolidated for trial. The trial court department said head which did not suspension held the first but set aside the happen or occur within six (6) months second. The Court of Civil af- immediately preceding the date of sus- firmed. 393 406. It S.W.2d reasoned that pension by department head.” suspension since the second on acts rested which prior occurred to the date of the It is clear that an amendment of suspension, suspension first the second original or charge imper statement precluded by Sec. 16 of Article 1269m1 missible. We said in Bichsel “We must opinion Carver, and our in Bichsel v. * * * agree that the statute does limit Tex. granted original the Chief charges written application Commission’s of error for writ which pointed not be amended.” It was question. Hamman, to review this who also out in City Bichsel that Attorney had appealed upholding trial court conceded insufficiency charges suspension, points the first and whose and requested had permission to withdraw error were overruled the Court of Civil them; the second or charges amended set of Appeals, application filed for writ of error described in alleging as upon conditioned granting our that of the “virtually facts, charges same and the practice, granted Commission. As is our we were substantially the same as those application upon granting the conditional original They set. grew related to and out that of the Commission. of the same incident.” 16 of Section Article not, however, purport pro 1269m does We sustain point the Commission’s hibit charge more than one given Court of Civil mis- period. six-months A charge statement or interpreted Sec. of Article 1269m and based acts and incidents unrelated to and our Bichsel. Section of Arti- differing supporting pending from those provides: cle 1269m charge existing an amendment of the “The Chief charge or Head of the Fire De- and is not barred the statute. partment A Department city or Police six-months limitation in favor of government power policeman shall have the to sus- or fireman is established and pend indefinitely any employee charge occurring officer or during limited to acts supervision under his jurisdiction period. or for such pro But the statute rules, immunity the violation of civil service but in accountability vide for all every such making case the officer such acts prior six months to and dif occurring shall, order suspension particular original within one ferent from a filing. We hundred and twenty (120) pointed hours there- out in Bichsel that amendments of after, charges permitted file a written statement generally with but it is Commission, giving type the reasons such otherwise in this of case because suspension, immediately furnishing express provisions and find of the statute. We copy employee thereof to the extending statutory officer no basis for lan act, guage time, affected copy preclude such said later in to be 1. The tne reference is to Article number as carried in Vernon’s Annotated Texas Civil Stat utes.
3H
conduct,
compliance
based
different acts and
a trial de novo and is in full
requirement
statutory
because such acts occur
six
de
within
of a
novo
previously
charge.
appeal.
Department
of a
pending
Here we
trial on
In Fire
charges
City
Worth,
two different
based on dif-
of Fort
of Fort
Worth v.
acts;
ferent
succeeding charge
(1949),
precluded by
appeal provisions
are not
the fact Court
considered the
that the acts
they
were based Section 18 of Article 1269mand said:
occurred within six months
preceding
“The extent of such a review has been
date of the
under the first
generally
rather
held to be limited to an
charge.
ascertainment of whether there was sub-
reasonably
stantial evidence
sufficient to
error,
ofwrit
Ham-
support
challenged
[citing
order
*4
presented points
asserting
man
in
of
There is
18
nothing in Section
cases].
prepon
substance that he was entitled to a
suggest
that the district court is em-
derance of
distinguished
evidence—as
powered
Although
to do more.
a
appeal
substantial evidence—trial on his
novo,
provides
statute
for a trial de
this
court;
to the district
that he suffered in
applied
term as
to reviews of administra-
jury
deprivation
and a
process
of due
of
tive
has come to
a well-
orders
participation
law because of the
significance
defined
in the decisions of
hearing of one member of the Commission
state,
this
and as
rule
taken
a
has been
investigated
who had also
his
con
acts and
only
mean trial
a
to determine
the issues
duct; and
that the six-months
of
agency’s ruling
whether the
is free
upheld by the trial court and
any illegality
the taint of
and is rea-
was not based on substantial
sonably supported by substantial evidence
represented arbitrary
evidence and
action.2
[Citing cases].”
To the
Kavanaugh
same effect see
appeal
Hamman’s
courts
Holcombe, Tex.Civ.App., 312
S.W.2d
governed by the substantial evidence rule
(writ
r.
1958);
ref. n.
e.
accord Bichsel v.
correctly
as
Ap
held
the Court of Civil
Strickland,
(Tex.Civ.App.
leave the Port Arthur Police station and district court in for trial accordance with proceed did camp cottage to a opinion. West and City outside the limits of the in the Hildebrandt ON MOTION FOR REHEARING Bayou area, Inspector where the said remained until after 7:00 a. m. on said Respondent rehearing motion for ” * * * date. points correctly that the trial court out We have no difficulty by general its refer- reading the fore- sustained going as alleging allegations attacking that post Hamman left his ence several duty approximately at 3:00 a. m. on the order of day May, 9th its 1964. It be order dated true that sustainment Petitioner began August complaint tour of duty p. at 11:00 which m. May on duty and that Appellant he was off on made in the Petitioner as shift which began p. Appeals; further, at 11:00 m. Court of nei- 9; the crucial allegation ther is “that on nor this * * * day May, 9th upon expressly the said Court has written these ]nspector did, points. approximately at prays 3:00 a. m. He in the alternative that the and before the end duty, involving proceedings of his severed cause these leave allegations remanded of Civil Court charge are not in for points. terms of the times of consideration of these Without duty; e., tours of p. them, i. 11:00 enumerating say from m. on one suffice it date points question essentially to 7:00 a. m. succeeding on the cumula- date. drafted in the terms of tive attacks orders bottomed date on place which Hamman left his or flowing from construction Arti- cle 1269m urged by Respondent. The ab-
sence of points merit in these follows
our contrary construction of the statute Respondent
the contentions of
means, turn, the trial court erred in respects.
the referred to rehearing motion for is overruled.
Henry McCLARY, Petitioner, H. al., Respondents. Emma Louise JONES et Condos, Andress, Woodgate, Richards & No. A-11182. Dallas, petitioner. Supreme Texas. Petry, Hous- Arthur C. and Arthur Steere
May 25, 1966. ton, respondents.
Rehearing July 13, Denied
HAMILTON, Justice. brought personal injury This action parents “Rusty” Jones, a by the of Robert severed five-year minor at time he old involving fingers one of his accident pane by the glass greenhouse in a owned injury petitioner McClary. The Henry H. result alleged as the to have occurred petitioner’s improper maintenance *7 trial operation greenhouse. The granted an instructed verdict court plain- petitioner rendered judgment nothing. The Texarkana tiffs take Appeals and remanded reversed Civil published. ordered not case Procedure. Rule Texas Rules Civil judgment of We reverse the and affirm the trial court. evi- that there is no
Petitioner contends any negligence guilty dence that he was minor proximately causing injury plaintiff and, therefore, the Court reversing and re- agree. case for trial. manding the