67 S.W.2d 909
HOOD et al. 
v. 
SCOTT
No. 1458.
Court of Civil Appeals of Texas. Waco.
January 25, 1934.
        Appeal from District Court, Freestone County; H. F. Kirby, Judge.
        Suit by F. D. Scott against Walton D. Hood and others. From an order granting plaintiff a temporary 
injunction, defendants appeal.
        Reversed, injunction dissolved, and petition dismissed.
        C. S. Bradley, of Groesbeck, and Thos. S. Christopher, of Austin, for appellants.
        J. Luther Broadway, of Madisonville, for appellee.
        ALEXANDER, Justice.
        F. D. Scott filed this suit in the district court of Freestone county against the members of the 
Railroad Commission of Texas, Walton D. Hood, an employee thereof, J. R. Sessions, the sheriff of 
Freestone county, and various other parties, and, upon an ex parte hearing, secured the issuance of a 
temporary writ of injunction restraining the defendants from arresting the plaintiff and the drivers of his 
trucks and thus preventing the plaintiff from carrying out the provisions of lease contracts by which the 
plaintiff claimed to have leased automobile trucks owned by him to individuals for use upon the public 
highways of this state. The defendants appealed from the order of the district judge granting such 
injunction.
        The appellants present the proposition that the petition wholly failed to state a cause of action and 
was therefore insufficient to justify the issuance of the writ of injunction. The material allegations 
contained in plaintiff's petition are as follows:
Page 910
        "That the plaintiff is the owner of a number of trucks, for each of which he has duly procured a 
license to operate upon the public highways of the State of Texas for the year 1932, and each of the same 
is being carried on the said trucks for which it was issued; that the plaintiff has also undertaken and has 
complied with all the legal requirements of law and rules and regulations of a private owner to so operate 
said trucks on the public highways of the State of Texas, and has leased said trucks to private persons, 
both individuals and corporations to be used by them in hauling their personal property and effects over 
the highways of the State of Texas, from one point to another. That said trucks are so used by said 
lessees for their own personal use as aforesaid, and not for any other purpose, and a number of them are 
used very frequently by some of them, lessees, on highways running through Freestone County, Texas, 
known and designated as Federal Highway No. 75, and State Highway No. 32; and others of them are so 
used and operated over the other public highways of the State of Texas, by the several lessees operating 
as aforesaid, exclusively to transport the goods of such lessees only.
        "2. That at the present time plaintiff has in effect and outstanding some lease contracts of said 
trucks to such character as lessee as those above mentioned, among which are contracts of lease of said 
trucks to haul goods to and from the ports of entry of the State of Texas to the internal parts of the said 
State and especially the large cities such as Dallas, Fort Worth and other large inland cities; that said 
goods are now on hand and an immediate necessity exists that they be transported to the destinations for 
which they are intended for sale as well as to save storage charges and large loss will result to the lessees 
unless said trucks are permitted to continue the use of said highways and the lessees will not comply with 
their lease contract with the plaintiff unless said trucks can operate as aforesaid and plaintiff will suffer a 
loss. * * *
        "4. Plaintiff would show to the court that he has not procured from the Railroad Commission of the 
State of Texas permits to operate said trucks as a common or contract carrier; that said trucks are not so 
operated as stated aforesaid but are being operated as leased trucks, operated by the lessees under their 
direct and exclusive control by men duly licensed as drivers or operators of said trucks; that the 
defendants as aforesaid in their official capacities, but in fact acting outside of same because acting 
without legal authority as hereinafter shown, has recently caused this plaintiff and a number of the drivers 
to be arrested while said trucks were so operated under the lease contracts as aforesaid, arresting them 
and charging the violation of chapter 277 of the general laws of the State of Texas passed by the 42nd 
Legislature that is without having secured from said Railroad Commission, under the provisions of said 
act, a certificate of public convenience and necessity to a finding to the effect that the public convenience 
and necessity requires such operation and/or without having secured a permit from said Commission to 
operate said trucks as a contract or common carrier, in face of the fact that on said occasions the plaintiff 
exhibited to the said defendants a copy of his said lease contract; that plaintiff was arrested for operating 
said trucks without having displayed thereon permission from the Railroad Commission to so operate as a 
contract or common carrier and was so notified by defendant, Walton D. Hood, that he would be arrested 
for such further operation."
        The petition further alleged that plaintiff was "being molested by the defendants in causing him to 
not be able to carry out his lease contracts as aforesaid by causing arrests of him and the operators of 
said trucks, and the said defendants will so continue to cause said arrests and hinder and prevent plaintiff 
from carrying out the terms of said lease contracts as aforesaid."
        It will be noted that the petition does not give the number of the trucks so owned and leased by the 
plaintiff nor in any wise describe any of said trucks so as to enable the court to extend the benefits of the 
writ so issued to any particular truck. Neither does the petition give the terms of the lease contract under 
which it is claimed that the lessees have a right to operate said trucks without complying with the 
provisions of the statute in question, nor does it name or otherwise describe any of the lessees who are 
entitled to such exemption. It will also be noted that the petition does not give the name nor otherwise 
describe any of the drivers of said trucks who are to be exempted from arrest upon the issuance of the 
writ. The petition merely alleges that plaintiff is the owner of "a number of trucks": that he has leased 
"some of said trucks" to "private persons both individuals and corporations"; that a number of said trucks 
"are used very frequently by some of them, lessees, on highways running through Freestone County";
Page 911
that "at present the plaintiff has in effect and outstanding some lease contracts of said trucks"; that said 
trucks are "being operated by the lessees under their direct and exclusive control by men duly licensed as 
drivers." It is apparent that any officer who, in good faith, desired to obey the writ of injunction issued by 
the court upon such a petition, would have great difficulty in recognizing either of said trucks or the 
drivers or lessees thereof so as to extend to them the benefits of the writ as contemplated by law.
        In passing upon the sufficiency of a petition for injunction, especially where the injunction is granted 
at an ex parte hearing, the petition is construed most strongly against the pleader and in order to be 
sufficient must allege all and negative all that is necessary to establish the right to the injunction. 24 Tex. 
Jur. 222; Gillis v. Rosenheimer, 64 Tex. 246; Plough v. Moore (Tex. Civ. App.) 56 S. W.(2d) 681, par. 6, 
and cases there cited. The petition in this case wholly failed to allege sufficient facts to enable the court to 
issue the writ of injunction as prayed for, and consequently is insufficient to support the judgment of the 
trial court. 24 Tex. Jur. 222.
        We do not deem it necessary to discuss the question as to whether or not one who has in good faith 
leased from another a motor-driven vehicle has a right to use such vehicle for the purpose of transporting 
his own property over the public highways of this state without first obtaining from the Railroad 
Commission a permit to do so. That question is discussed in the cases of Anderson, Clayton & Co. v. State 
(Tex. Com. App.) 62 S.W.(2d) 107, and Tom Reavley v. State (Tex. Cr. App.) 63 S.W.(2d) 709.
        The judgment of the trial court is reversed, the injunction dissolved, and the petition dismissed.