*1 458 6,5,, “personal injury” 7 are
Appellant paragraphs which the words contends that appellee appellee’s clearly indicate used that did not intend clearly and 8 of answer ap- injury by occupational appellee and did treat caused disease be intended to occupational excluded. pellant’s disease claim separate category a and distinct Rule 93 Rules (n) injury. paragraph accidental While Civ.Proc., requires, plain in case a a where insert- possibly paragraph probably were allegation tiff’s that the has made Board only to the in the answer with reference ed final award is under oath that such denied disease, occupational cause of action for proved. ap an award be Since in this case 7 probable paragraphs it seems pellant introduced no evidence that inserted with reference to both causes had award, Board rendered final appellant. After a of action asserted trial court entering judg did not err in answer, consideration we can- entire appellee. ment for paragraph merely denied that say that ap- on had made final award Board The of the trial court is affirm- pellant’s compensation reason claim for ed. injury of an from the inhalation suffered fumes, quantities excessive dust and did not constitute denial claim
Board had made final award her compensation occupational
disease. strengthened is further al., Appellants, of Texas et The STATE the fact that Article V.A.T. Sec. . S., provides: v. PETROLEUM COR- CROWN CENTRAL ‘injury’ .“Wherever the terms al., Appellees. et PORATION injury* ‘personal are used in the Work- No. 11111. Compensation state,
men’s Law of this shall be mean such terms construed to Appeals Civil Texas. damage physical or harm to the struc- Austin. body ture of the and such diseases or naturally infection as result therefrom. meaning from the Unless context the Rehearing July 3,1963.* Denied clearly contrary, such terms shall also be construed to mean and include
occupational diseases, as hereinafter following diseases
defined. occupational
shall be deemed to be dis- * * eases : arising laywer, pleading a case Act, Compensation the Workmen’s
under pleading, in his that words used
may assume Act, given will be defined it statutory unless can be de definition meaning was not intend
termined appellee’s paragraph answer In
ed. the context in determined from
cannot * July 11,1963. expired, filing viz. until time Motions Held *2 Producers Independent Texas Association, an order
Royalty Owners County,, Court, Travis of the 53rd Summary Judg- a Motion for sustaining below) (defendants ment by Crown Central Petroleum Company, said Pipe Line Crown Central “take- reciting appellants judgment against nothing” as to their alleging violation of prohibiting purchasing crude oil transporting Appellees, set- after answer Texas. an denial, ting filed a motion for out a Court, summary judgment, which the Trial opposition by plaintiff after and inter- venors, summarily rendered sustained and judgment that: “(1) Neither Plaintiff nor Intervenors have a cause of mandamus for the refusal of Defendants to comply Special 7-47,648 Order No. by issued Commission on Railroad 1962, because Defendants are appealing said Order in the 126th District 126,174 Court in Cause No. and have the appeal without, such Order at the time, subjected same mandamus for refusing and/or with such Order.
(2) Neither Plaintiff nor Intervenors have a cause of action acts of discrimination and subject not the matter of the Railroad Commission Gen., Carr, Atty. Linward Waggoner 7-47,648 because the Railroad Com- Gen., N. Shivers, Atty. Lud- Asst. James mission has original exclusive Austin, appellants. lum, Davenport, John of all of the complaints of discrimination alleged in this suit and the Plaintiff and In- Searls, Vinson, Elkins, Ray- & Weems tervenors must first complaints their Drushel, Jr., Thompson, W. H. bourne to the Railroad Commission.” Clark, Thomas, Harris, Houston, Denius & Austin, Winters, Keahey, Cable H. James appeal predicated The points five as- Baltimore, counsel, McDaniel, & signed error the Trial Court in sus- appellees. appellees’ taining Motion for Summary appellants Judgment (a) because seek ARCHER, Chief Justice. penalties for violation of the discrimination appeal appellants statutes, an (b) State insofar as are re- Texas, acting by and its through quired Attor- submit General, Carr, and Waggoner ney Railroad Merle since administrative Jackson, L. Foree, required, (c) R. B. Pete action is not Hart because the effect should, upon applica- prevent enforcement vided that carrier is to producer, tion and tender of crude oil (Articles of the anti-discrimination statutes request through lease, connect 6049a) to such when (1) and Section 8 of *3 and made for in by suits Article 6047 connection of lease batteries authorized carrier, the Ann. 6049a, by area Section Article Vernon’s served of Attorney which is Civ.St, subsidiary General an affiliate (d) of com- because the purchaser, had mon by properly violation defined of determined that Section 6049a, Article finally and (e) (2) occurred because there within individual and fields, by any genuine possesses when fact raised common of material carrier issues only pipeline the the pleadings serving the before such field and re- and the evidence quest made for connection Court. of an uncon- battery; just lease provided nected for that appellants the Appellees take cause pipelines may common carrier seek and penalties for action have no cause of exceptions. provision There ais further defendants of refusal mandamus application that when has been made for a 7-47,648, No. Order Special comply with refused, complaint connection and such is order appealing are appellees may failure to be connect filed with the without so right to do the have and allegation Commission and an of discrimina- refusing to subject to tion is made. When the matter comes to order, with such the exception Commission either as an alleged acts of based of no cause pipeline the producer’s or as a complaint for subject the are not which discrimination connect, failure to days ten notice shall be 7-47,648, and since Order matter of given to all parties, affected after which for viola- seek appellants do not a hearing had, shall be and the Commis- viola- but for tion of a Commission require sion will among consider other against discrimination of tion factors, evidence relating ability judgment; correctly rendered the Court pipeline transport quality oil, jurisdic- has exclusive that the Commission market oil, period tendered re- Statutes, Gas Oil and to enforce tion quired to return capital investment for usurp that cannot Attorney General the connection. can Attorney General since function complaint, hearing Duffy After a on the discrimination, only after bring suits end 7-47,648, the Commission its Order No. by a valid has determined the Commission 21, 1962,required the February dated Crown finally exists that discrimination order Companies pipeline to extend their and to barred; is, as a matter this suit the tank batteries the leases. connect fact genuine no issues there which are material. hearing was overruled and brought in the 126th Duffy, now A. September B. County attacking of Travis the Or- complaint with the Com- deceased, grounds: dated 1962on the der investigate requesting a mission to ex- the refusal not now and has That Crown is nev- leases pipeline to tend purchased oil at lease tank batteries er in pipeline should if connection to determine field, the Commission is not required Commission order to by the empowered any under law of this State to discrimination. prevent unreasonable so; do purchase by pursuant (2) That the complaint Crown oil was filed Duffy-operated the 11 Order, produced leases called Commission Teague procedures for Station rather than at Order, requiring prescribing tank batteries does not pipelines to connect to leas- lease constitute carrier common discrimination; order, brief, wells, pro- es Pipe permanent mandatory injunction re- refusal of Crown (3) That Pe- system quiring Defendants, Central Crown Line construct a gathering constitute troleum Cen- Duffy-operated and Crown does leases Pipe obey law; tral Company, prohibited Line comply with the above relevant statutes never Pipe Line has That Crown cited, obey and to or- and execute the gathering undertaken to render a ders of the Railroad above Commission Regular County service the Haskell and, to, prays, referred Plaintiff further Field, and that the order *4 in accordance with the relevant statutes system to the requiring construction of penalties provided by law be $42,000 of Duffy serve the leases a cost at imposed upon respective Defend- law; process denies it due of ants, namely, Crown Central Petroleum Pipe and Crown Central That the action of the Commission Company, Line in an amount commen- gather- in ordering the construction of the surate with of its continued ing system, violations failing and rates to establish in and an and amount not less than taking charges, has of the effect One ($100.00) Hundred Dollars nor property process Crown’s without due law; more ($1,000) than One Thousand Dol- finally, offense, lars for each commencing Oc- system gathering 1959, tober, and, in accordance with Duffy required by public leases is not law, that (½) one-half penalties of such necessity. convenience be recovered the State of Texas and (1/2) Commission answered a general the other penal- one-half denial. Subsequently Duffy et al and Texas ties be awarded the use and benefit Independent Royalty Producers and Own- of the holders and pro- owners of the ers Association intervened. case is ducing lands and mineral interests in- pending in the volved, and, 126th District Court. prays Plaintiff further Judicial costs of suit and such other and further July 23, On 1962 the instant suit was filed relief, general special, or at law or in in the Court, 53rd seeking Judicial equity, Plaintiff, to which and the own- a mandatory injunction require ers of producing lands and mineral Companies Crown comply with the Feb- involved, may interests be justly enti- 21, ruary 1962 Order which was then under tled.” in attack 126th District Court. Judicial 8, appellees plea 1962 On October Appellees 17, August answered on 1962 Duffy private privilege et al’s by general denial plea and a in abatement action, granted by which was cause of based on the pendency of the this on Trial Court sustained 126th District Court. 17, April et 1963 al. v. Crown September 21, On 1962 et al and Corporation, al., Tex.Civ.App., TIPRO et Petroleum Duffy petitions intervention, et al filed 366 S.W.2d seeking mandatory injunction and for 9, appellees filed their On October penalties provided for in Section 11 of Summary urging Judgment, Motion 6049a, private Article and for damages un- the suit of law that did not matter as a der Section lie. good were faith long as lie as September Attorney On Order, Gen- Commission’s attacking the Original eral filed a First Amended Peti- stating:
tion, prayed: if these de- “It is self-evident validity prays
“Plaintiff at the conclu- can test fendants sion of the final order in the courts February hereon that pen- having pay this honorable Court enter an risk of order mandatory- junction sought because penalties having alties violate were or the Com- injunction, de- refused to they in fact been Order, mission’s as matter of law judicial review then nied lie; injunction action did not February and that if the said sought independent were it would be far for them better Order, orig- an an ask for Commission’s and as order than to unlawful inal matter the action did lie because the law.” not original primary Commission has exclusive appellants filed October jurisdiction matters; that if the over such pleadings asserting additional amended injunction sought on cause or for discrimination causes of action basis of different instances of discrimina- based the Order tion, the action lie did not because the Com- independently Statutes on “the mission has original exclusive Texas,” upon gen- the Commission’s over such matters and had not *5 4, eral order .of remedy. exhausted their administrative Appellees supplement their stated in a to came summary judgment The motion for Motion in answer Summary Judgment, 1962, hearing on for on October action, that additional causes until completed finally was not Jan- fact, no &ere was material issue of grant- motion was uary when the judgment were entitled for the follow- to in terms: ed ing reasons: nor Interven- Plaintiff “(1) Neither “(1) nor Neither the statutes cause of ors general Commission’s order of June of De- the refusal mandamus for requires 4, 1958, Appellees any to make Special Order to fendants extension of their in the ab- 7-47,648 Railroad by the issued No. specific sence the Commis- 21, 1962, be- sion, proper issued after notice and appealing said cause Defendants hearing, finding that such extension District Court in the 126th reasonable under all of the circumstanc- 126,174 County in Cause interest; Travis necessary public es and appeal Or- right to have the “(2) And if the or the Com- time, being without, same at the der general mission’s order of June manda- subjected to and/or as requiring Appellees
be construed comply with such refusing to mus for any spe- make such extension without Order. cific order then nor Interven- Plaintiff “(2) Neither such statutes and order have of action have a cause ors taking Appellees’ prop- the effect of discrimination acts of erty process without due of law and Railroad Com- subject matter equal denying to them the 7-47,648 mission Order No. the law.” has exclusive Railroad Commission while the motion On November of all of the com- original jurisdiction n Attorney General amended pending, the was alleged in this plaints discrimination and sued State pleadings and Intervenors the Plaintiff ap- parties for aggrieved first must Duffy et al within Has- pellees against Commission.” Railroad pen- sought County Regular Field and kell provided: The order alties. take and Intervenors sup- Plaintiff “that January all costs their'motion, if this suit stating nothing the in-
plement to
.463
determined,
put
party
been
would
against Plaintiff
herein be taxed
affected in
himself
where
however,
he
Intervenors;
provided,
must,
risk,
upon
pass
his own
a bar
not be
judgment,
this
shall
question.
obey
He must
what
either
bring an action
Plaintiff’s
may
order,
finally be
held
be
void
penalties should
mandamus and/or
disobey
may
or
ultimately
what
be held
Febril--
Commission’s Order of
Railroad
to be a lawful
statute
order.
If a
ary 21,
under attack
which is now
constitutionally
heavy
could
impose
126,174
Dis-
in the 126th
Cause No.
penalties for
finally
violation of commands of
County, be
trict
Travis
disputable
legality,
and uncertain
order, and the
adjudged to be a valid
inevitably
result
would
be
Defendants
thereafter
refuse
should
orders,
carrier would
ra-
void
obey the same.”
ther than risk the enormous cumulative
jus-
We
Court was
believe
the Trial
confiscatory
punishment
might
appealed
entering
tified in
imposed
they
be
if
should thereafter
from.
to be
declared
valid.”
the Commission
issue before
Smith,
In Culver v.
Tex.Civ.App., 74
discriminating
was
was whether Crown
ref.,
S.W.2d
er.
this Court held the
Duffy’s
in Haskell Coun
production
against
court has no
enforce
Field,
denied
ty
was
Regular
this
statute until
passed
the matter has been first
*6
Court.
in 126th
being tested
upon by
only
and then it
a trial can be
Appellants contend that
determines whether or not
the order of
Com
complained
before the
the acts
unjust
as
and unreasonable
the Commis
if it be held
mission even
railway company
complaining
is void.
sion’s order
law,
same. Such
our
view
do not
we
think the trial
court erred
Ry.
Wadley
Co. v. State
In
Southern
sustaining
exceptions
plea
to the state’s
L.
Georgia, 235 U.S.
35 S.Ct.
intervention,
in so far
it related to
held:
Ed.
it was
spur
track.
enforced,
in whatever method
“But
judicial
review must
right
The Commission has exclusive
substantial,
safely avail-
adequate, and
original jurisdiction
to consider
able;
merely
nominal
but
carrier-pur
of discrimination
common
illusory
party
if the
to be affected
ap
under Article 6049a
chasers
appeal to the courts
at the risk
can
propriate Sections thereunder.
pay
great
so
of having
to orders of uncer-
Liberty Pipeline
it is better
Agey,
American
Co. v.
legality
affirmed,
rather than to ask for the
Tex.Civ.App.,
tain
S.W.2d
* *
*
of the law.
Tex.
when the command has HUGHES, J., dissenting. authoritatively
not been determined. Liability to for violation opinion dissenting For see 369 S.W.2d orders, validity has before their