author: POPE, Justice. MURRAY, Chief Justice

text:
    Charles W. SCOTT, Sr., Appellant, v. Edgar E. McELROY, Jr., Appellee.
    No. 13925.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 19, 1962.
    Rehearing Denied Oct. 31, 1962.

      Pat Maloney, San Antonio, for appellant.
    Hobart Huson, Jr., Chas. F. Nichols, San Antonio, for appellee.
   POPE, Justice.

Charles W. Scott, Sr., plaintiff below, has appealed from a judgment upon a verdict which found that his nineteen-year-old son, Charles W. Scott, Jr., was contributor-ily negligent in an automobile collision by failing to keep a look-out, which negligence was a cause of the accident. Scott urges that (1) the findings about lookout have no support in the evidence, (2) are against the great weight of the evidence, and (3) the trial court improperly admitted evidence concerning the son’s record and conduct as a student. We affirm the judgment.

Scott, with two friends, was driving north along Interstate Highway 35, on the night of November 13, 1960, in the vicinity of New Braunfels. The highway had two double lanes, one for northbound traffic and the other for southbound traffic. An esplanade separated the two lines of traffic. Scott was followed by a 1960 Ford, driven by Paul Schoenfield who also had two passengers. The six companions were returning to Houston after spending the week-end at a camp in Kerrville. A short time before the accident, and while on a feeder road, Scott stopped and inspected his car for trouble. He then drove onto the freeway. He was again followed by Schoenfield. Several hundred feet behind Schoenfield, McElroy was driving northbound. No other vehicles were involved or present before the accident, either northbound or southbound. Scott decided to again inspect his car, so he flashed his lights about five times and began to slow down gradually. As he slowed down, Schoenfield maintained an interval of about one hundred feet between his car and Scott’s forward car. Schoenfield pulled to the right-hand paved shoulder and came to a stop. Scott saw Schoenfield through his rear-view mirror when he pulled to the shoulder, but Scott continued slowly down the highway. McElroy was the third car in the line of traffic, and he was about five hundred feet back of Schoenfield at the time Schoenfield stopped. He passed Schoenfield’s Ford and drove into the rear of the Scott car. Both cars were demolished.

There was evidence which supports the findings that Scott “failed to keep such a lookout as a person of ordinary prudence in the exercise of ordinary care, would have kept under the same or similar circumstances,” and that this was a proximate cause of the accident. The essence of Scott’s argument of “no evidence” is his contention that he supplied all the testimony and McElroy did not testify. The fallacy of the contention, however, is found in the fact that Scott, in supplying all the evidence, supplied a considerable amount whicn supported the jury’s finding of his o,wn negligence, and his friends corroborated it. We shall review some of those facts. All three drivers were, and knew that they were on a freeway. A freeway is a highway with controlled access which is intended for the elimination of most traffic stops, intersections, and other interferences with the flow of through traffic. Art. 1085a, Vernon’s Tex.Civ.Stats. Before Scott decided to make the second investigation of his automobile, all three vehicles were moving at what was described as normal highway speed. Scott, the lead driver, then began to slow down. Schoenfield also slowed down, maintaining about the same distance between the two cars. Scott testified that he flashed his brake lights, and Schoenfield said he saw them. Schoenfield’s car was between Scott’s and McElroy’s cars, and McElroy may or may not have seen the flashing lights. Schoenfield moved to the shoulder and stopped, but Scott, while continuing to slow down, stayed on the traveled part of the highway.

The point of impact was near the middle of the highway. An officer of the State Highway Patrol testified that the highway was forty feet wide with a center stripe. Scott’s vehicle was struck on the left rear by the McElroy vehicle’s right front light. He testified that the skid marks and debris fixed the point of impact in the right-hand lane about two feet to the right of the center stripe. This means that Scott, though coasting along slowly, remained well out in the line of traffic instead of pulling to the right or moving onto the paved shoulder which was available.

Scott testified about his own lookout. He looked in his rear-view mirror and saw Schoenfield pull to the shoulder. He said that he saw the lights of the McElroy car when it was 100 or 150 feet behind him. While this is testimony that Scott saw Mc-Elroy, this is the evidence which the jury in all probability decided was not a proper lookout. Schoenfield testified that he was 100 feet behind Scott, and that when he stopped, he looked and saw McElroy 500 feet farther back. ' The road was straight and “flat like a wide-open prairie.” Lights were visible for great distances. • The jury well could have concluded that Scott was watching his companion’s car, but was oblivious to and indifferent about other overtaking traffic. Although Schoenfield saw McElroy 500 feet away, Scott said that he did not see him until he was 100 or 150 feet away.' Scott was asked the direct question, whether he saw the McElroy car when he looked to see Schoenfield, who had stopped. He answered, “No.” He was asked what he saw when he looked back, and he said he saw Schoenfield. He was asked, “And you saw no other car ? ” He again answered “No, sir.” Scott therefore testified that he did not see the lights of the McElroy car until they were 100 or 150 feet away, though there was nothing between the Scott car and the McElroy car. The lights were there, and when Scott finally looked back for overtaking traffic it was too late for him to do anything about his situation.

This is a case of one who is moving along a freeway at night at highway speed and then slows down until he creeps along, as Scott himself testified, at a speed of five to ten miles an hour. This is not a case in which the lead driver slowed down or stopped because his travel was impeded by traffic, LeSage v. Smith, Tex.Civ.App., 145 S.W.2d 308; nor is it one in which the driver stopped in obedience to traffic signals or traffic controls. Kuykendall v. Doose, Tex.Civ.App., 260 S.W.2d 435; Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229. A lookout to the rear is not required in those cases, but LeSage v. Smith, supra, states the exception to that general rule. When one in a stream of traffic slows his vehicle, or stops it, or changes his course, a duty arises to see what is behind when he makes the change. Certainly that is the sound rule for speeding traffic along a freeway at night when speed and distance are more difficult to judge. Beasley v. Baker, Tex.Civ.App., 333 S.W.2d 212; Manning v. Block, Tex.Civ.App., 322 S.W.2d 651; Womacks v. Horne, Tex.Civ.App., 300 S.W.2d 765; 60 C.J.S. Motor Vehicles 1 90, p. 301. The authorities are collected and reasons for the rule are -well stated in Mr. Chief Justice Murray’s recent opinion, Jones v. Downey, Tex.Civ.App., 359 S.W.2d 116.

There was evidence which supports the verdict. Applying the test stated by In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and by looking at all the evidence, we can not say that the findings are so against the great weight of the evidence as to be manifestly unjust.

Scott’s final point is that the court improperly admitted evidence about his son’s behavior and record as a student and young man. Those matters were brought into the case by Scott, first by pleading and then by testimony. In any event, they did not affect the crucial findings about Scott’s lookout.

The judgment is affirmed.

MURRAY, Chief Justice

(dissenting).

I do not concur in the opinion of the majority and here state my reasons for dissent.

The undisputed, disinterested evidence in this case shows that Scott, Jr., was driving his car at a slow rate of speed straight down the right traffic lane of Interstate Highway 35, within the City Limits of New Braunfels, when he was struck from the rear by a car being driven by McElroy, Jr. This highway is divided and the east half, forty feet wide, is reserved for traffic going north. Thus it will be seen that there were some twenty-two feet of open, unobstructed, level and unoccupied paved highway to Scott’s left where McElroy was required to pass. Sec. 54(a), Art. 6701d, Vernon’s Tex. Civ.Stats. The right front light of McEl-roy’s car struck the rear left light of Scott’s car and it appears that if McElroy had turned his car only one or two feet to the left there would have been no collision. The only explanation given by McElroy for striking Scott’s car was that he did not see it. The jury, of course, found McElroy guilty of negligence which was a proximate cause of the collision. Which finding was fully supported by the evidence.

The jury found in answer to Questions Nos. 7 and 8, that Scott failed to keep a proper lookout, which was a proximate cause of the collision. This appeal turns upon the question of whether there was evidence to support these two findings.

The evidence shows, and the jury found in answer to Question No. 13, that Scott did not stop his automobile on the paved portion of the highway. And in answer to Question No. 11, they found that Scott did not decrease the speed of the automobile he was driving more suddenly than a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances.

It is difficult to see how Scott’s failure to keep a proper lookout could be a proximate cause of the collision when he did not stop or turn, and did not slow down his speed except in a careful manner, and gave due warning by flashing his rear lights, and especially in view of the fact that there were some twenty-two feet of pavement on his left, which McElroy was required by statute to use in passing the Scott car. Sec. 54, supra.

Scott did not violate Art. 6701d, § 68(a), because he did not turn his vehicle, nor did he violate § 68(c), because he did not stop or suddenly decrease the speed of his vehicle. This the evidence shows, and the jury so found. Scott did not, under the statute, owe the duty to give any signal, but he did give ample signals by flashing the rear lights.

McElroy’s explanation for striking Scott’s car, that he did not see him, only emphasizes the fact that Scott was not negligent. Scott was not found guilty of any act of negligence other than not keeping a proper lookout, which was of course a lookout to his rear. This collision happened at night. No one, other than Scott, knows whether or not he looked to his rear Scott swore that he twice looked to his rear before he began to slow down. He saw the lights of Schoenfield’s car which was directly behind him. It is not surprising that he did not see the car behind Schoenfield’s car, as the .road was level and straight, but it is immaterial how many cars Scott saw to his rear, he at least saw one and thus knew that there was traffic behind him, and therefore he should be careful about reducing his speed. If he had seen McElroy’s car it would have given him no further useful information than he already had. Knowing there was traffic behind him, he flashed his rear lights and reduced his speed just as gradually as he could. The warning he gave was sufficient for Schoenfield, who reduced his speed and pulled out on the shoulder of the highway. Scott again looked back and saw McElroy’s car coming some 100 or 150 feet to his rear, but he had a .right to assume McElroy would obey the law, Art. 6701d, § 54(a), and pass on his left. When Scott heard McElroy’s brakes screeching immediately behind him, he realized there was going to be a collision, but it was then too late for him to do anything to avoid it.

The majority seem to rely on the fact that the jury was not required to believe Scott’s evidence on lookout because he was an interested party. If this be true, the disbelief of the positive testimony of Scott that he did keep a proper lookout to his rear will not support a finding that he did not do so.

As was said by Justice Norvell, speaking for this Court in Dewhurst v. South Texas Rendering Co., Tex.Civ.App., 232 S.W.2d 135:

“After a careful examination of the statement of facts, we have come to the conclusion that there is no evidence supporting the jury’s findings that Dew-hurst was travelling at an excessive speed at the time of the collision or that he failed to keep a proper lookout. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. Appellants’ motion for judgment should have been sustained.
“While the testimony of Munoz was not necessarily binding upon the jury, disbelief in his statement that the station wagon was moving slowly into the intersection is not evidence that the driver of the station wagon was travel-ling at an excessive rate of speed without maintaining a proper lookout. Testimony of a witness that an automobile was travelling at the rate of ten miles per hour at a certain time can not in itself be considered as testimony that the vehicle was travelling at the rate of sixty miles per hour. There must be something more than mere disbelief in the ten-mile per hour testimony to support a sixty-mile per hour finding. We do not agree with appellee’s argument that the jury ‘could have disregarded that portion of Munoz’s testimony relating to the deceased slowing his automobile down as he was nearing the intersection and could have believed his testimony with reference to the rate of speed of forty or fifty miles an hour and used that as a factor in arriving at their verdict.’ This argument involves a presumption of negligence.”

The burden of proof was upon McElroy to show by a preponderance of the evidence that Scott was guilty of contributory negligence in that he did not keep a proper lookout to his rear. Dewhurst v. South Texas Rendering Co., supra; Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Hardage v. Rouly, Tex.Civ.App., 349 S.W.2d 616; Texas & P. Ry. Co. v. Midkiff, Tex.Civ.App., 275 S.W.2d 841; Schneider v. Delavan, Tex.Civ.App., 118 S.W.2d 823; Texas Rules of Civil Procedure, Rule 94.

Scott is presumed to have been taking due care for his own safety unless it is shown by a preponderance of the evidence that he failed to keep a proper lookout to his rear. Rule 94, T.R.C.P.; Wood v. American Sec. Life Ins. Co., Tex.Civ.App., 304 S.W.2d 559; Burba v. Lary, Tex.Civ.App., 296 S.W.2d 797; Gieb v. Goebel Brewing Co., Tex.Civ.App., 176 S.W.2d 975; Garza v. De Leon, Tex.Civ.App., 193 S.W.2d 844; 9C Blashfield, Cyclopedia of Automobile 'Law and Practice, § 6101, p. 38. The rule of res ipsa loquitur does not apply here because McElroy specifically alleged that Scott failed to keep a proper lookout, the burden was upon him to establish such fact by the evidence. In my opinion, the testimony of Scott to the effect that he kept a careful lookout to his rear, looking not only once but twice, can not be converted into evidence that he did not keep a proper lookout by the simple process of saying Scott was an interested witness and could be disbelieved by the jury.

In my opinion, the finding of the jury that Scott did not keep a proper lookout should have been disregarded by the trial court because it had no support in the evidence.

Even if there was some evidence to support the finding that Scott failed to keep a proper lookout to his rear, such failure in any event was not a proximate cause of the collision, because the undisputed evidence of the disinterested witness is to the effect that Scott was aware of the traffic approaching from his rear and flashed his stop light; that he did not stop, and did not suddenly decrease the speed of his vehicle; he did not turn to the right or to the left, but was struck from the rear by a motorist who did not see him. Under such circumstances, whether or not Scott looked to the rear is immaterial, and could not be a proximate cause of the collision. Furthermore, under all of the facts of this case, Scott did not owe any duty to keep a lookout to his rear, and owing no duty he was not guilty of negligence in not doing so.

In Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481, the Court said:

“Appellant says the court erred in disregarding the answers to issues five and six and in rendering judgment for Hill. As shown, the jury found that Hill did not stop on the highway and that he did not rapidly decrease his speed on the highway, as plaintiff alleged. The only finding of negligence was that Hill failed to keep a proper lookout to the rear. The jury also found that such failure was a proximate cause of the collision of the cars behind Hill, driven by Earl Weber and Jordan. The court disregarded said findings upon the theory that, under the circumstances shown, as a matter of law, Hill had no duty to keep a lookout for cars travelling behind him. We think this was correct. * * * Appellant is contending, in effect, that because Hill was driving 30 to 40 miles per hour, instead of at the maximum speed permitted by law, he owed appellant the duty to keep a lookout to the rear. Hill, of course, had no duty to drive at the maximum rate. Hill had the right to drive in his right hand lane at the speed he was travelling and to assume that cars approaching from the rear would obey the law and use proper care to avoid injuring themselves. * * * In the absence of evidence of some fact that should have attracted Hill’s attention to a situation that required a lookout to the rear, he had no duty to keep one. * * * Since there was no duty, there was no negligence in failing to keep a lookout to the rear. Furthermore, we think Hill’s failure to keep such a lookout was, clearly, not a proximate cause of the collision of Earl Weber’s and Jordan’s cars. Le Sage v. Smith, Tex.Civ.App., 145 S.W.2d 308, 312, (Writ Dis., C.J.); Freeman v. Harkrider, Tex.Civ.App., 320 S.W.2d 238; Valley Film Service v. Cruz, Tex.Civ.App., 173 S.W.2d 952, (Ref. W.M.), and Mueller v. Bobbitt, Tex.Civ.App., 41 S.W.2d 466.”

The cases of Le Sage v. Smith, Tex.Civ.App., 145 S.W.2d 308; Kuykendall v. Doose, Tex.Civ.App., 260 S.W.2d 435, and Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229, are not subject to the limitations attempted to be placed upon them by the majority.

The majority cite the cases of Beasley v. Baker, Tex.Civ.App., 333 S.W.2d 212; Manning v. Block, Tex.Civ.App., 322 S.W.2d 651, and Womacks v. Horne, Tex.Civ.App., 300 S.W.2d 765.

The Womacks case was a collision at a street intersection, where the plaintiff was making a left-hand turn while the defendant was passing him. There are no similar facts here.

The most significant statement in Manning v. Block, supra, in my opinion, is the following:

“Split-second timing is not ordinarily .required of operators of motor vehicles. Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229, 231. This would place an intolerable burden upon the average citizen. None but the most alert could safely venture on the highways. We have concluded that we cannot uphold the finding of the jury, under the circumstances obtaining, that Manning was negligent in having momentarily released his brake pedal preparatory to moving his car forward as the other car began its movement to enter Veatch Avenue. To do so would require a person to have the same ability to see, observe and react as readily to the circumstances of the road behind him as he is required to do ahead. This is physically impossible to do, and the law has rightly placed the burden on the car operator approaching from the rear, in event of a collision, to explain his action.”

In Beasley v. Baker, supra, the Court held that plaintiff was required to keep a lookout to her rear when making a left-hand turn and changing from one traffic lane to another. Such is required by Sec. 68(a), Art. 6701d, Vernon’s Tex. Civ. Stats. This is undoubtedly the law, but "here there was no making of a left-hand turn, and no changing of traffic lanes. I think this case really supports the contention that here no lookout to the rear was required.

The majority seem to indicate that Scott, Jr., did not have a right to gradually slow down and ultimately pull onto the shoulder, even though his car was not functioning properly, because he was driving on a freeway. Undoubtedly Scott, Jr., had this right. Art. 6701d, § 68(c), reads as follows:

“No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.”

Sec. 93(a) and (b), in effect, authorizes, motor vehicles to reduce their speed and pull off the paved portion of a highway. I know of no different rule for vehicles being driven on a freeway.

Vol. 2A, Blashfield, Cyclopedia of Automobile Law, and Practice, § 1191, p. 2, reads as follows:

“Stopping or Parking in Street — In General
While motion is the general law of the road, this law is subject to limitations imposed by reason and necessity. In the absence of any governmental prohibition or restriction, the temporary stopping of an automobile on the proper side of the highway for a necessary purpose is not negligence; the right to stop when the occasion demands being an incident to the right to travel. However, there may be a want of care in parking a motor vehicle as well as in operating it. The test of liability is the reasonableness of the conduct under the circumstances. Weight should be given to the extent of interference with the free use of the road by others with equal rights.
“Due to the mechanical imperfections of the automobile, it is often necessary to stop at least partly on the traveled portion of the highway, if for no other purpose than that of making repairs. Because of this fact, it cannot be said as a matter of law that a driver who has been forced to stop in the traveled portion of the highway is negligent.”

"Blashfield cites many cases in support of this text.

The important lookout for a motorist on a highway is to his front and sides and not to his rear. Only on rare occasions is he required to. keep a lookout to his rear. None of these rare occasions were shown to exist in this case. The driver of a motor vehicle is not required to follow the example set by the extinct dodo bird which is said to have habitually flown backward because he wanted to see where he had been but did not give a hoot as to where he was going.

In my opinion, there is no evidence more than a surmise or guess, to show that Scott, Jr., did not keep a proper lookout to his rear, and that such failure was a proximate cause of the collision. Therefore, the judgment of the trial court should be reversed and judgment here rendered in favor of Scott in the sum of $12,000.00, the amount of damages found by the jury.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    Nick ACHILLE et ux., Appellants, v. Lida BAIRD, a Widow et al., Appellees.
    No. 13987.
    Court of Civil Appeals of Texas. Houston.
    Oct. 11, 1962.
    Rehearing Denied Nov. 1, 1982.

      Markwell, Stubbs, Decker & Dalehite, Henry G. Dalehite, Jr., Galveston, for appellants.
    Armstrong, Bedford & Lambdin, Bart Hopkins, Galveston, for appellees.
   WERLEIN, Justice.

This is an appeal from a summary judgment in a trespass to try title suit in favor of appellees, the record owners, who brought the suit against appellants, Nick Achille and wife, to recover an undivided one-half interest in Lot 324, Section 1 of the Trimble & Lindsey Survey of Galveston Island, Galveston County, Texas. Appellants pleaded not guilty, a general denial and the five and ten year Statutes of Limitation. To appellants’ affirmative defense of limitations, appellees filed their first supplemental petition alleging that appellants were estopped to dispute appellees’ title because the relationship of landlord and tenant existed between them.

Appellants assert in their one point that the court erred in granting appellees’ motion for summary judgment since there are material disputed fact issues in the case.

The undisputed evidence shows that on December 13, 1934 one W. Wern, who had previously enclosed Lot 324 and six other lots within his fences, and who was in possession of all of such lots, executed and delivered to J. T. Allison, under whose will appellees claim title as sole beneficiaries of an undivided ½ interest in Lot 324, an acknowledgment of tenancy covering said lot, which acknowledgment was filed for record on December 13, 1934 and duly recorded on December 31, 1934 in Vol. 510, pp. 284, 285, of the Deed of Trust Records of Galveston County.

On December 15, 1937 appellants purchased from said Wern Lots 276 and 292 in Section 1 of said Survey. These two lots, each containing ten acres, which Wern owned, had been enclosed by him with ten-acre Lots 324, 313, 308, 297 and 281, forming a pasture of some 70 acres. Lot 281, which was quitclaimed to appellants by Wern on December 15, 1937, lies between Lots 276 and 292 in the east portion of the 70 acre pasture, and Lot 324 is the extreme westerly lot in the tier of parallel lots, each fronting approximately 330 feet or more on “S” Road and running back in a northerly direction approximately 1250 feet or more for depth.

Appellant, Nick Achille, testified by deposition with reference to the 70 acres, that Wern sold him everything that was under fence — fence and all; that he acquired whatever improvements there were on all the lots; that when Wern sold him Lots 276, 281 and 292, he, Wern, was living in the house located on Lot 276, and at such time Wern was in possession of Lot 324, and was using all seven lots for pasture and farming; that Wern turned over to him possession of all the lots, including Lot 324; and that he did not know J. T. Allison or any of the appellees and never gave actual notice to any of them that he was claiming Lot 324.

The affidavits of Wern show that he bought Lots 276 and 292 in August, 1929 and that when he bought such lots, he enclosed them and the other lots with a barbed wire fence and commenced and continued to use them for grazing of live stock until he sold to Nick Achille; that he was in possession of and used Lot 324 and signed the acknowledgment of tenancy to J. T. Allison about 1934; that he sold out and gave a deed to Nick Achille in Decern-ber, 1937, to Lots 276 and 292, and a quitclaim deed to Lot 281, together with improvements and fences, and turned over possession to him of all seven Lots that he, Wern, had enclosed; and that he at no time repudiated or disaffirmed his tenancy under his acknowledgment of tenancy dated December 13, 1934, nor did he at any time thereafter give said J. T. Allison or any of appellees notice of any kind or character that he was holding or intended to hold possession of said Lot 324 under a claim of right inconsistent with and hostile to their title; and that while in actual possession of said lot he did not claim title to it adverse to the title of Allison or ap-pellees.

There can be no question that appellants’ possession was adverse to appellees and that they may claim the property in question under the 10 year Statute of Limitation unless estopped to do so because of the tenancy relationship relied upon by appellees. It is equally clear that at the time of the execution of the deeds hereinabove mentioned to three of said lots, Wern turned over to appellants possession of all the lots, including Lot 324, which were enclosed within a fence, and that appellants entered into possession under him and with his permission. After taking possession under Wern, appellants continued to graze live stock on the land just as had been done by Wern.

The law in this State with respect to the relationship of landlord and tenant is well expressed in the case of Houk v. Kirby Petroleum Co., Tex.Com.App. 1933, 65 S.W.2d 496, 499, as follows:

“The law of this state exacts from tenants the exercise of the utmost good faith in carrying out the tenancy relationship when once established. This rule also applies to persons acquiring title and possession whether by inheritance or by purchase from the tenant. Nothing short of an open, positive, and visible repudiation of that trust will suffice to start the running of the statute of limitation. Because Kirby Petroleum Company had no notice of the agreement between Houk and Collier under the facts here stated, will not be sufficient to take the case from under the well-established rule and set the statute in motion in its favor. The courts of this state, as well as the courts of other jurisdictions, have not drawn any fine distinctions upon this question. They rest their decisions upon the broad ground that where the relation of tenant and landlord is once established, it takes a plain, positive, and clear-cut repudiation to break that relationship, and until that is done, the tenant is estopped to deny the title of the owner. Benskin v. Barksdale [Tex.Com.App., 246 S.W. 360], supra; Buford v. Wasson, 49 Tex.Civ.App. 454, 109 S.W. 275, 278 (writ denied) ; Mattfeld v. Huntington, 17 Tex.Civ.App. 716, 43 S.W. 53 (writ denied); Udell v. Peak, 70 Tex. 551, 7 S.W. 786; 2 C. J. page 134.”

It is appellants’ contention that fact issues have been raised as to repudiation of the tenancy relationship and as to appel-lees having constructive notice thereof. The evidence shows that appellants, after they went into possession of Lot 324 and up to 1943, used the same for the grazing of live stock and that they made no use of the property different from that made thereof by Wern. In 1943 the United States Government took over much land that was located north and east of Lot 324 and close thereto for the purpose of making an army air field. The United States also took appellants’ Lots No. 276, 281, and 292 which were included in the same pasture with Lot 324. At the same time an official of the government advised appellant Achille that the government would have to take and condemn all of the land that was included in the pasture and that he would have to get off the property. Appellants left and remained out of the pasture, including Lot 324, until May, 1944, at which time they were informed that the government would not need any portion of the property except the three lots in the eastern portion of the 70 acre pasture for which appellants had been paid. Upon being so advised, appellants moved back into possession of the pasture, including Lot 324. They have remained in possession thereof ever since, using it for the grazing of cattle and keeping it enclosed with a fence.

The evidence shows that the north fence of the tier of lots in said pasture separated it from one Carl Duyf’s pasture on the north, and that after the government had taken the Duyf property and Lots 276, 281 and 292, the Airport built a new fence about 40 or 50 feet farther north than the old north fence of the pasture. Nick Achille in his affidavit stated also that when he went back into possession of the property, he moved the south fence, which was along the old “S” Road, farther south, but there is nothing in the record to indicate how far. The relatively insignificant moving of the north and south fence lines of the lots remaining in the pasture, including Lot 324, was insufficient to constitute constructive notice of a repudiation of the tenancy relationship.

The evidence shows that in 1940 appellants rendered for taxation five acres, or an undivided one-half of Lot 324, and continued to render and pay taxes on such five acres out of Lot 324 until the year 1950, wiien for the first time appellant Achille rendered and paid taxes on the whole of Lot 324. From 1938 until 1950 the legal representatives of the Estate of J. T. Allison, Deceased, also rendered and paid taxes on an undivided one-half of Lot 324. The rendition and payment by appellants of taxes on an undivided one-half of Lot 324, or 5 acres, would not constitute assertion of a claim adverse to appellees. It is not necessary to decide whether the rendition and payment of taxes on the entire lot would constitute constructive notice because ten years did not elapse between 1950 and April 29, 1955, when this suit was filed.

The fact that appellants did not know of the tenancy relationship is immaterial. Overstreet v. Houston Oil Co., Tex.Civ.App., 64 S.W.2d 354, writ ref.; Houk v. Kirby Petroleum Co., supra.

We find no evidence in the record showing notice to appellees of any repudiation of the constructive tenancy which attached to appellants’ possession. Nor do we find evidence of any facts from which appellees could have reasonably inferred there was any such repudiation. 2 Tex.Jur.2d, p. 98, Adverse Possession, § 32; Overstreet v. Houston Oil Co., supra; Davis v. Lund, Tex.Com.App., 41 S.W.2d 57; Fowler v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 237 S.W.2d 373, writ ref.

The use appellants made of the property was insufficient as a matter of law to raise a fact issue as to constructive notice, especially since such use was identical with the use made of the property by Wern. Killough v. Hinds, 1960, 161 Tex. 178, 338 S.W.2d 707.

Appellants have cited a number of cases in support of their contention that notice of a repudiation of the landlord-tenant relationship need not be actual but also may be constructive. They particularly rely on Mauritz v. Thatcher, Tex.Civ.App., 140 S.W.2d 303, writ ref., in which the court stated:

“Such notice may be constructive and will be presumed to have been brought home to the co-tenant or owner when the adverse occupancy and claim of title to the property is so long-continued, open, notorious, exclusive and inconsistent with the existence of title in others, except the occupant, that the law will raise the inference of notice to the co-tenant or owner out of possession, or from which a jury might rightfully presume such notice.”

We do not construe the holding in Mauritz v. Thatcher to mean that constructive notice of a repudiation of tenancy and adverse claim can be inferred from long-continued possession alone. As stated by the court, such possession must be inconsistent with the existence of title in others. In the instant case the possession by appellants was similar to the use made of the property by Wern and was not inconsistent with the landlord’s title. Appellants entered into possession of the land as constructive tenants and their occupancy was and continued to be permissive from its inception as a matter of law. It was not inconsistent with the permissive use under which entry was made. Moreover, it cannot be said that there was a non-assertion of claim by appellees who were rendering the property for taxation and paying taxes thereon.

Appellants also contend that the death of J. T. Allison terminated the tenancy of Wern. We do not agree. In the acknowledgment of tenancy Wern promised to hold actual possession of Lot 324 as the tenant of Allison and the legal representatives of R. W. Wynn, Deceased, and their heirs or assigns, and to yield possession to them or to their agents, heirs, assigns or legal representatives on demand. The tenancy relationship was not severed by the death of J. T. Allison. 36 Tex.Jur. 2d, p. 120, Landlord and Tenant, § 265; Benskin v. Barksdale, Tex.Com.App. 1923, 246 S.W. 360; Meek v. Bower, Tex.Civ.App. 1960, 333 S.W.2d 175.

Appellants also contend that the requirement by the United States government that appellants leave the premises and remove their cattle, which requirement resulted in the temporary cessation of use of Lot 324 for a period of less than one year, amounted to a surrender or abandonment thereof, so that when they again went into possession, they went in claiming to be the. owners and were freed from any constructive tenancy relationship that might have previously existed. It is our view that the fact that appellants turned over possession of the land to the United States government in 1943 did not terminate the existing tenancy. In 51 C.J.S. Landlord and Tenant § 174, it is stated:

“A tenancy at will may be terminated by surrender and acceptance. A tenancy, however, is not terminated by the mere act of the tenant in vacating the premises, where the landlord does not accept the surrender, but there must also be a proper legal notice given by the tenant of his intention to terminate the tenancy.”

In the instant case the United States government did not take Lot 324, although an official of the government did require appellants to vacate the same. There was no surrender or abandonment of the lot to appellees and no acceptance of any surrender by them, nor was there any notice of surrender or abandonment of possession given by appellants. West Lumber Co. v. Sanders, Tex.Civ.App., 225 S.W. 828, writ ref.; Juneman v. Franklin, 67 Tex. 411, 3 S.W. 562.

In his affidavit, appellant Achille stated:

“In December of 1937 I went into possession of the property involved in this suit and described as Lot 324, Section 1, of the Trimble & Lindsey Survey of Galveston Island, Galveston County, Texas. I went into possession as owner and have claimed ownership of this property ever since that time.”

He also stated in his affidavit in describing his dealings with some purported official of the United States Government; “He told me that the government required me to get off my property and I did so at that time.” He then concluded in his affidavit: “It is ours and we at all times claimed it as our own.”

It is evident from the affidavit of appellant Achille that he at no time intended to absolutely abandon or surrender possession of Lot 324, or his claim or ownership thereto. In fact, his mere non-use of Lot 324 for a period of less than a year was not voluntary, but because, as he stated, the government required him to get off. Even if he had intended to abandon or surrender possession of the premises in dispute, such intention would he ineffective to terminate the tenancy existing and make his possession after re-entry adverse to the title of appellees, without bringing notice of his intentions to them.

Accepting as true the evidence relied upon by appellants and giving them the benefit of every reasonable inference which can be drawn in their favor, we have concluded that there are no disputed fact issues in the case, and that appellees established their right to the summary judgment in question. Gulf, C. & S. F. Ry. Co. v. McBride, 1958, 159 Tex. 442, 322 S.W.2d 492; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Murchison v. Post Independent School Dist., Tex.Civ.App., 258 S.W.2d 229, ref. n. r. e.

Judgment affirmed.


author: BARROW, Justice.

text:
    GOODYEAR SERVICE STORES, a Division of the Goodyear Tire & Rubber Company, Inc., Appellant, v. Marvin H. CLEGG et al., Appellees.
    No. 13998.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 17, 1962.

      Hector De Pena, Corpus Christi, for appellant.
    Markel Heath, Falfurrias, for appellees.
   BARROW, Justice.

This suit involves the validity of a chattel mortgage given to appellant, Goodyear Service Stores, by Marvin H. Clegg on five window air-conditioning units and five electric fans. Goodyear filed suit for foreclosure. Appellee W. Carl Wester, who had physical possession of said property, was made a defendant along with Clegg who was cited by publication. After a hearing before the court, judgment was rendered in favor of the defendants, although the court found that Goodyear had established its cause of action against the absent defendant, Clegg.

The question presented is whether the mortgaged equipment was “attached to realty” so as to require the chattel mortgage to be filed under Art. 5498, Revised Civil Statutes. Goodyear made no effort to comply with this statute. Clegg purchased the equipment from Goodyear’s store in Kleberg County, and at that time executed the chattel mortgage. He was identified as owner of the Park Motel, Falfurrias, Texas, which is located in Brooks County. The chattel mortgage was recorded in the chattel mortgage record of Kleberg County, and a few months later in such record of Brooks County. All of these events transpired prior to Wester’s purchase of the Park Motel where the equipment was located. There is no evidence that Wester had actual notice of Goodyear’s chattel mortgage. The record is silent as to the physical arrangement of the equipment at the motel. The only testimony on the issue of whether the equipment was personal property or fixtures attached to realty came i2 om Goodyear’s employee, Lozano. He testified unequivocally that the window units could very easily be removed without any damage to the realty.

As a general rule, the question of whether or not personal proeprty has the status of a fixture is one of fact. City of Houston v. Priester, Tex.Civ.App., 302 S.W.2d 948. Since no findings of fact or conclusions of law were requested or made, it must be presumed that all disputed fact issues were found by the court in a manner to support the judgment. This rule does not apply here in that there is no evidence to dispute the clear testimony that the units did not become affixed to the realty. The chattel mortgage was properly recorded and gave Wester constructive notice of Goodyear’s claim. Lone Star Gas Co. v. Sheaner, 157 Tex. 508, 305 S.W.2d 150; Burns v. Union State Bank of Carrizo Springs, Tex.Civ.App., 265 S.W.2d 164; Moskowitz v. Calloway, Tex.Civ.App., 178 S.W.2d 878.

Appellee Wester asserts as a counter-point that he purchased the property from a bona fide purchaser and stands in the shoes of such bona fide purchaser. There is no pleading o.r evidence to support such a defense. Wester’s trial amendment alleged the contrary, in that he alleged Clegg was acting as agent for Nielsen or Streater, who were Wester’s predecessors in the record title of the realty. Wester offered no evidence other than deed records, and made no effort to show that either Nielsen or Streater was a bona fide purchaser. We therefore overrule this counter-point. Lindig v. Johnson City State Bank, Tex.Com.App., 41 S.W.2d 222.

The judgment is therefore reversed and the cause remanded for entry of judgment in keeping with this opinion.

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    SOUTH FORT WORTH STATE BANK, Appellant, v. Arnold HOWE, d/b/a Eagle Mountain Trading Post, Appellee.
    No. 16355.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 12, 1962.
    Harry N. Ward, Jr., Fort Worth, for appellant.
    Biddle, Fender & Day, and Eugene D. Biddle, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Appellant, South Fort Worth State Bank, was a garnishee against whom appellee Arnold Howe had obtained a default judgment on October 2, 1961. We treat the matter before us as an appeal by writ of error from said judgment.

One element of complaint is because the sworn application and affidavit under which writ of garnishment was demanded failed to state whether W. F. Lytle, Jr., the defendant against whom the appellee had obtained a final judgment in personam, was a corporation, individual or partnership.

Another element of complaint is because the sworn application and affidavit under which writ of garnishment was demanded stated that the judgment which appellee had obtained against W. F. Lytle, Jr., was in a cause entitled and numbered as the ancillary suit for garnishment and thereby failed to correctly state the number and style of the cause of the principal suit, i. e., that under which the appellee had obtained his judgment against Lytle.

This circumstance arose by reason of the fact that the sworn affidavit/application for garnishment was erroneously prepared with a number and caption identical to that of appellee’s suit against Lytle. The clerk of the court properly insisted that the garnishment proceedings be docketed as a suit which was differently styled and numbered. By interlineation the number of the suit against Lytle was changed to that given the garnishment suit, and in the style at the top of the application the name of W. F. Lytle, Jr., as defendant was stricken out with the name of the appellant bank written in. The body of the instrument was not changed, and therein it was stated: “On the 5th day of January, 1961, in the above entitled and numbered cause * * * plaintiff obtained a personal judgment against W. F. Lytle, Jr., defendant, for the sum of * * (Emphasis supplied.)

The appellant’s contentions are that either of said elements of complaint rendered void the judgment entered by default in the garnishment suit, or at least that the circumstances entitled appellant to avoid the effect of the judgment through a decree of this appellate court setting aside and annulling the same.

We overrule the contentions so advanced. The errors complained of were clerical errors. There is no contention that the writ itself (issued upon the supposed sufficiency of the sworn affidavit and application) failed in any respect as to requirements. Had the appellant garnishee hank filed its answer the affidavit/application could have been amended to show the appellee’s status as an individual, and to show the correct style and number of the cause of action in which appellee had obtained his judgment against Lytle. Texas Rules of Civil Procedure, rule 679, “Amendment (of clerical errors in the affidavit, etc.)”. There is no question and it is a fact that both the principal and the garnishment case were in the same court, and the antecedent principal judgment was judicially noticed by the trial judge in the garnishment proceedings.

The contention relative to the failure of the affidavit/application to state the legal status of the appellee was the identical question passed upon in the case of First Nat. Bank of Fabens v. Pacific Cotton Agency, 1959 (Tex.Civ.App., San Antonio), 329 S.W.2d 504, an appeal by writ of error from a default judgment in a garnishment case. The holding was against the contention appellant has advanced. The court was of the opinion that since the clerical error could have been amended in the event there had been an answer to the writ of garnishment (if complaint thereof had been made in the answer), and since the clerical error would properly be treated as waived had there been an answer which made no complaint thereof, it would be treated as constructively waived in a case where the garnishee filed no answer. We agree. We are furthermore of the opinion that the same reasoning and holding would apply to the contention here made concerning the misstatements made in the affidavit/application about the number and style of the principal case in which appellee had taken judgment against Lytle.

judgment is affirmed.


author: POPE, Justice.

text:
    STATE of Texas, Appellant, v. Charles E. CURTIS et al., Appellees.
    No. 13926.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 5, 1962.
    Rehearing Denied Oct. 24, 1962.

      Will Wilson, Atty. Gen., Morgan Nesbitt, Edward A. Cazares, John Wildenthal, Jr., Watson C. Arnold, Winston P. Crowder, Asst. Attys. Gen., Austin, for appellant.
    York & Swanner, McAllen, for appellees.
   POPE, Justice.

The State of Texas has appealed from an award to Charles E. Curtis and wife for lands condemned for a controlled access highway in Hidalgo County. Slightly more than five acres were taken out of the sixteen-acre Curtis tract. The jury fixed the value of the five acres at $6,793.80, and the damages to the remainder at $10,764.00. State condemned the surface only. The controlling points on appeal concern the admission and exclusion of evidence. State complains of error by reason of the improper (1) admission into evidence of testimony about comparable sales which occurred from seven to ten years before the taking, (2) admission into evidence as comparable sales, testimony about sales to condemning authorities, (3) exclusion of evidence about the influence of the mineral value upon the comparable sale tracts, and (4) exclusion of a map which would show the proposed access to and exits from the remainder of the Curtis tract.

The first three points relate to the nature of evidence of comparable sales when used as proof of value in condemnation cases. Since no two tracts are identical, it is sufficient if it can be shown as a predicate that the lands involved in prior sales are similar to those taken. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 815; State v. Childress, Tex.Civ.App., 331 S.W.2d 230, 235. One element of the required similarity is that market conditions must be comparable. Sales which are too remote in time are therefore not treated as similar sales. The trial court, over objection, admitted proof of two sales which occurred ten years before the taking, and two other sales which occurred seven years before the taking. The tracts sold ten years earlier brought $1,000.00 an acre. The tracts sold seven years earlier brought $2,-500.00 and $3,000.00 an acre, respectively. These figures were considerably higher than those of sales in more recent years. The proof about sales within the past five years was that they had brought $665, $667, $700, $800, $811, $843, $886, and $1,000 per acre. Tracts which had been sold with the minerals had brought $1,166, $1,750, $1,812 and $2,125 per acre. The jury found that the surface of the Curtis tract was worth $1,300 an acre. The condemnees argue in support of the remote sales, that it is a matter of common knowledge that inflation has boosted prices, and that the lands have increased in value. Such argument ignores the many other factors which affect land values. We 'find no cases which approve evidence of sales at a market seven and ten years old, and no reason exists for going so far back in this case. The evidence of sales during 1950 and 1953 was too remote and should have been excluded. Broesche v. State, Tex.Civ.App., 348 S.W.2d 770; Thompson v. State, Tex.Civ.App., 319 S.W.2d 368; Scott v. McLennan County, Tex.Civ.App., 306 S.W.2d 943; Sullivan v. Missouri, K. & T. Ry. Co., 29 Tex.Civ.App. 429, 68 S.W. 745, 747.

element of the required similarity is that the comparable sales must be between a willing seller and a willing buy-buyA purchase by a condemning authority is not free and voluntary. Over objection, the condemnees proved two sales which were made to agencies with powers of emi-emidomain. One sale was to the State of ’ Texas for a District Highway Office. Art. 5240, Vernon’s Ann.Tex.Civ.Stats. The other sale was to a public utility. Arts. 1436-1436a, Vernon’s Tex.Civ.Stats. In such situations the buyer knows that the public needs and demands the facility. The seller, on the other hand, is in the shadow of a sale by compulsion. Such sales are not fair comparisons and the evidence should not have been admitted. Menchaca v. San Antonio Independent School District, Tex. Tex.297 S.W.2d 363; Robards v. State, Tex.Civ.App., 285 S.W.2d 247.

Another element of the required similarity is that the comparable sales must be of similar estates. In this case, only the surface was condemned. When minerals have value, sales of lands with minerals are not a fair comparison with lands sold without the minerals. The State presented an expert witness who testified about comparable sales. He was in the process of explaining why three of the sales brought twice or three times as much as other sales in the area. His explanation would have been that minerals were sold with the higher priced lands and not with the lower priced lands. This evidence was excluded. After both sides had closed and just before argument to the jury, the condemnees withdrew their objection. The witness had been excused the day before and had gone to another city. State asked for time to obtain the witness, but the case proceeded on to argument and verdict.

The court also excluded the State’s map of the highway which would have shown the location of cross-overs, frontage roads, and entrance and exit ramps. A map was first offered and admitted which showed the road across the condemnees’ land, but nothing else. A larger map was then offered which showed the new highway for several miles. Upon objection, the State reduced the area of the map and re-offered it. This portion showed only those parts of the highway which afforded the nearest crossovers, exits, and approaches to condem-nees’ property. The map was excluded upon objection that it embraced properties not involved in the condemnation, was outside the pleadings, and the proposed highway could be later changed. In our opinion, the reduced portion of the map should have been admitted. Access to the condemnees’ remaining tract was in issue and was within the pleadings. Condemnees were permitted to prove that fire trucks could not reach the property and that its value as residence property was damaged. With the map excluded, the State was forced into the position that the highway rendered the Curtis property inaccessible. This was not a true picture of the highway, and the State should have been permitted to show how vehicles could get to and from the Curtis property.

A procedural matter was presented in connection with a claimed error in a bill of exception. The bill before us states that the State offered certain evidence for impeachment purposes which the court excluded. Condemnees at a later hearing before the trial court sought to correct the bill so it would show that the evidence was not offered as impeachment. The trial court did not correct the bill. Instead, the statement of facts on the hearing to obtain the correction was ordered sent to this Court. In it we find that the court refused to change the bill, saying: “I am not going to change it because I just don’t remember what happened other than that.” The matter is of no significance, however, since the case has been decided upon other grounds of error.

For the errors in admitting and excluding evidence, the judgment is reversed and the cause remanded.

On Motion for Rehearing.

Our holding does no violence to Texas v. Oakley, Tex., 356 S.W.2d 909, or Hays v. State, Tex.Civ.App., 342 S.W.2d 167. The objection made to the sales offered in Oakley was that the expert was testifying about hearsay. The question therefore, was whether sales which are comparable may be told about, though the information was from hearsay sources. The case did not concern sales which were non-comparable. Hays v. State states three instances in which comparable sales may be offered. The opinion assumes that the sales are in fact comparable. In listing the conditions under which sales may be offered, the opinion contains the prefacing statement: “Evidence of sales of comparable properties may be offered under three conditions In other words, comparable sales may be offered under certain conditions, Hays v. State, supra; and they may be offered though the source of the information may be from hearsay. Texas v. Oakley, supra. The basic rule still exists, which is that the sales must actually and in fact be comparable. If the sale is too remote in time, as in this case, it is excluded for that reason.

Appellees’ motion for rehearing is overruled.


author: COLEMAN, Justice.

text:
    Lee Curtis JOHNSON, Appellant, v. AMERICAN CAN COMPANY, Appellee.
    No. 13992.
    Court of Civil Appeals of Texas. Houston.
    Oct. 18, 1962.
    Rehearing Denied Nov. 8, 1962.

      Roberson L. King, Houston, for appellant.
    V. R. Burch, Jr., Houston, and James M. Neel, Attys., and Baker, Botts, Shepherd & Coates, Houston, of counsel, for ap-pellee.
   COLEMAN, Justice.

This is a suit to set aside an arbitration award. From an unfavorable judgment appellant, plaintiff in the trial court, brings this appeal.

The trial court sustained defendant’s plea in abatement reading as follows:

I.

“As alleged in Plaintiff’s original petition on file herein, the question whether Plaintiff’s discharge by Defendant was proper and in accordance with the terms of the contract then in effect between Defendant and United Steel Workers of America was submitted to arbitration, and the impartial Arbitrator found, in an award dated September 19, 1958, that such discharge was proper. A true copy of this award is attached hereto as Exhibit ‘A’ and made a part hereof for all purposes. This award is correct and is supported by the evidence presented at the arbitration hearing, is valid and unimpeachable, and bars completely Plaintiff’s claims for damages and re-employment or any other relief.”

When the plaintiff failed to amend his petition, judgment was entered dismissing the suit.

Appellant briefs two points of error, one of which is that, “Plaintiff’s action is not barred by the arbitration award.” In his original petition appellant sought an order requiring appellee to re-employ him with accrued seniority and to pay him the wages he would have earned from the date of his discharge. Paragraph IV of his petition reads:

“Plaintiff further shows that his suspension and discharge were submitted to arbitration and that the company’s position was sustained. That at said proceeding, Plaintiff was not accorded adequate or competent counsel and that the finding of the arbitration was against the overwhelming weight of the evidence.”

No other grounds for setting aside the award of the arbitrator are contained in the petition.

It is well settled in Texas that the award of an arbitrator in a matter properly submitted to arbitration is final and conclusive, unless it is shown that the arbitrator was “guilty of fraud, misconduct, or such gross mistake as would imply bad faith or failure to exercise an honest judgment.” Galveston, H. & S. A. Ry. Co. v. Henry & Dilley, 65 Tex. 685. Errors of fact or law are not grounds for setting aside an award. Johnson v. Korn, 117 S.W.2d 514, Tex.Civ.App., error ref.; Grand International Brotherhood of Locomotive Engineers v. Wilson, 341 S.W.2d 206, Tex.Civ.App., error ref., n. r. e.

There is no contention that the arbitration was not conducted in accordance with the contract between appellee and the United Steel Workers of America. Appellant has alleged that prior to his discharge and while employed by appellee, he was a member of the United Steel Workers of America, who was the exclusive bargaining representative of the employees of ap-pellee under a collective bargaining contract. The justness of an employee’s discharge must be determined in accordance with the applicable provisions of that contract and since appellant’s discharge has been processed through the grievance procedure and has been upheld by the award of the arbitrator, he has no cause of action in court until the award has been set aside. Couey v. Arrow Coach Lines, 288 S.W.2d 192, Tex.Civ.App.

The trial court did not err in sustaining the plea in abatement, and since appellant failed to amend his petition to state a cause of action not vulnerable to this plea, the judgment of dismissal was proper.

Appellant’s other point of error relates to the action of the trial court in sustaining another plea in abatement on different grounds. In view of our holding above, we find it unnecessary to determine the correctness of this action.

The judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    Charles R. BROWN et al., Appellants, v. MEMORIAL VILLAGES WATER AUTHORITY et al., Appellees.
    No. 14058.
    Court of Civil Appeals of Texas. Houston.
    Oct. 18, 1962.
    Rehearing Denied Nov. 8, 1962.

      Irion, Cain, Cocke & Magee and Richard H. Cocke, Houston, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Wiley Caldwell, and John M. Sanders, Houston, for appellees.
   BELL, Chief Justice.

This is an appeal from an order refusing an injunction. Appellants were tax payers within the corporate limits of Memorial Villages Water Authority, herein called Authority. They sought to enjoin the Authority and the persons composing the Board of Supervisors of such Authority from issuing and disposing of bonds voted by the residents of the Authority, or from using the proceeds of any bonds sold for the purchase or construction of a sanitary sewer system or from contracting for such purchase or construction.

The Authority is a conservation and reclamation district created by the Legislature pursuant to the authority conferred by Section 59, Article XVI of the Constitution of Texas, Vernon’s Ann.St. It was created by an act of the 57th Legislature, 1962 Third Called Session. Article 8280-271, V.A.T.S. The territorial limits of the Authority are prescribed in the Act and cover the area within the corporate limits of Hedwig Village, Piney Point Village (except for a designated 0.19 square mile) and Hunters Creek Village.

Pursuant to the statute an election was held to determine whether the Authority should issue bonds in the amount of $3,500,-000.00, for the purpose of purchasing, constructing, etc., a waterworks and sanitary sewer system. Too, the election was to determine whether the payment of bonds should be financed through the levy and collection of a tax. The election resulted in a favorable vote for the bonds and tax.

At the time of the creation of the Authority and at all material times thereafter there was a sanitary sewer system being operated in a part of the territory that is within the territorial limits of the Authority. The system was being operated by Memorial Villages Supply Corporation, herein called Corporation, a private corporation. It was, however, stipulated that Mr. Chapman, Plumbing Inspector for Hunters Creek Village, would testify that the services of said private corporation were available to residents who desired them upon the payment of the fees charged by the Corporation.

Unquestionably as shown by the record it was represented to the residents of the Authority that a portion of the bond money would be used to purchase the system of the Corporation, or its lines would be parallel.

Appellants seek injunctive relief on the basis of two assertions:

1. They say the Authority could not vote bonds and levy a tax to be used in acquiring or establishing a sanitary sewer system because there was already a public sanitary sewer system being operated within the limits of the Authority and that Article 7930-4, V.A.T.S. prohibits such under such circumstances.

2. They say Article 8280-271, V.A.T.S., is unconstitutional because it is a special statute levying a tax when Section 3, Article VIII, of the Constitution, provides that taxes may be levied and collected only by general law.

Section 4 of Article 8280-271, by broad general language, gives the Authority all rights, powers and privileges conferred by general laws on fresh water supply districts organized under Section 59, Article XVI of the Constitution. Additionally said Section 4 gives all the rights, powers and privileges conferred by Chapter 4 of Title 128, Revised Civil Statutes of Texas, and the amendments thereto, including all powers and authority relating to sanitary sewer systems and issuance of bonds therefor as authorized by and provided in Article 7930-4.

Article 7930-4 gives fresh water supply districts the authority to purchase, construct, etc., sanitary sewer systems. Then the Article has this proviso: “ * * * provided no other public sanitary sewer system is available for the area * *

Appellants say this proviso prevents the Authority from operating a sanitary sewer system and bonds voted for such purpose are therefore invalid because the Memorial Villages Supply Corporation is and was operating a sanitary sewer system in the territorial limits of the Authority.

We overrule this contention.

The sanitary sewer system in operation is not within the meaning of the statute a “public” sanitary sewer system. It is operated by a private corporation. It is true its services are available to the members of the public who desire them and who pay the fees charged. This does not change the system to a public system within the meaning of the statute. We hold that when the Legislature in Article 7930-4 used the term “public” it meant not a privately operated system available to members of the public, but a system operated by a governmental body.

In determining the legislative intent it is to be presumed the Legislature was acquainted with the conditions affecting the area to be affected by the legislation. Imperial Irr. Co. v. Jayne, 104 Tex. 395, 138 S.W. 575; Frass v. Darrouzett School Dist., 277 S.W. 751, C.C.A., error dism. Here the presumption is strengthened because the record shows that a legislative committee held a public hearing within the area of the Authority on the proposed legislation to create the Authority. The committee must have known that there was within the area a sanitary sewer system operated by a private corporation where the members of the public, upon payment of a fee, could obtain service. Yet with this knowledge the Legislature authorized the Authority to purchase, construct, etc., a sanitary sewer system if there was no public sanitary sewer system in the area. If it used the term “public” to mean, as appellants contend, a system operated by a private corporation, but the facilities of which were available to the public, then the Legislature did a meaningless and useless thing in authorizing the Authority to purchase, construct, etc., a sanitary sewer system. It must be presumed the Legislature did not intend to do a useless thing. Duson v. Poage, 318 S.W.2d 89, C.C.A., ref., n. r. e.

That appellee is not a public, but a private corporation, is established by Miller v. Davis, 136 Tex. 299, 150 S.W.2d 973, 136 A.L.R. 177.

What the Legislature intended in the amendment of Art. 7930-4 was to prevent conflict between governmental agencies that might occupy a part of the same area where each agency might attempt to operate a sanitary system. Water Control & Improvement Districts (Art. 7880-3a, V.A.T. S.), Counties (Art. 2352, V.A.T.S.), and Cities (Arts. 1101 and 1175, V.A.T.S.), are all authorized to establish sanitary sewer systems.

Appellant further contends that Article 8280-271 is unconstitutional because in violation of Article VIII, Section 3, providing that “Taxes shall be levied and collected by general laws and for public purposes only.” The position of appellant is that Section 6 of Article 8280-271 sets up a different method for collecting taxes than is provided by general laws governing fresh water supply districts. These general laws are Articles 7881-7959a, V.A.T.S. The substance of the general laws is that the assessor and collector of taxes shall be a resident of the district and be elected for two years. Article 8280-271, Section 6, provides for the appointment of the assessor and collector by the Board of Supervisors of the Authority and he shall serve at the Board’s pleasure. He need not be a resident of the district. Too, said section authorizes the Board of Supervisors to contract with Harris County, a school district, city, town or village, to handle the assessment and collection of taxes.

The Authority was not created as a fresh water supply district. It is true that it was given the powers of a fresh water supply district, but it was also given additional and broader powers. It was created as a conservation and reclamation district under the authority of Article XVI, Section 59.

The act creating the Authority is not a local or special act just because it operates in a defined area since it operates on a subject in which the people of the State are interested, that is, the conservation and development of natural resources. County of Cameron v. Wilson, 160 Tex. 25, 326 S.W.2d 162.

It is true that the act provides a different mechanical method for the assessment and collection of taxes, but it is a general law that prescribes the method of assessment and levy.

Further, Article XVI, Section 59, of the Constitution, under which the Authority was created, authorizes the Legislature to create conservation and reclamation districts and to provide for the levy and collection of taxes. There is no requirement that the method to be employed shall be the same in each district. If there were any conflict between the two constitutional provisions, and we do not think there is, Article XVI, Sec. 59, would control since it is the latest expression of the people and also it deals specifically with the reclamation and conservation districts while Article VIII, Sec. 3, is general in nature. Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    L. B. STOKES, Appellant, v. TEXAS CONSUMER FINANCE CORPORATION, Appellee.
    No. 16356.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 12, 1962.
    Rehearing Denied Nov. 9, 1962.

      Mack & Mack, Christopher & Bailey and M. Ward Bailey, Fort Worth, for appellant.
    McDonald, Sanders, Nichols, Wynn & Ginsburg, and Atwood McDonald, Fort Worth, for appellee.
   RENFRO, Justice.

L. B. Stokes, as plaintiff, brought suit against Texas Consumer Finance Corporation for damages based upon the refusal of defendant to issue to him 2,000 shares of stock under an option agreement.

The option agreement, dated June 20, 1959, extended to plaintiff an option to purchase 10,000 shares of common stock of Texas Consumer Finance Corporation, subject to the following:

“1. This option covers a period from June 20, 1959, to June 20, 1964, and expires at 5 p. m., Central Standard Time on June 20, 1964.
“2. You, L. B. Stokes, must have been in the employ of Texas Consumer Finance Corporation or a wholly owned subsidiary for 12 months to exercise this option. The entire unexercised portion of the option becomes null and void at the time you leave this employment regardless of reason for termination of employment.
“3. Not more than 2,000 shares of this option stock may be purchased in any one 12 month period with the exception that all or any portion of the unsubscribed portion may be purchased in the 12 month period ending June 20, 1964.”
4. This section required plaintiff, in event he desired to sell prior to June 20, 1964, any stock which he might purchase under the option agreement, to offer it in writing to defendant.
5. Paragraph five required cash payment for any stock purchased by plaintiff.

On June 29, 1960, plaintiff applied for and received a certificate for 2,000 shares of common stock.

On July 18, 1960, plaintiff made written request for the issuance of a second 2,000 shares of stock. Defendant refused to sell the stock. It was upon that refusal of defendant to sell the second 2,000 shares that plaintiff brought suit.

The trial court entered judgment for defendant.

Plaintiff contends that the refusal of defendant to deliver the second 2,000 shares of stock on July 18, 1960, breached the terms of the option contract of June 20, 1959.

Plaintiff contends the option contract was ambiguous in that paragraph 3 provided that 2,000 shares might be purchased in any twelve month period, while paragraph 2 provided that a period of employment of 12 months must elapse before the option could be exercised. Plaintiff argues that “under numbered paragraph 3 of the option in question, appellant was entitled to buy 2,000 shares of stock during any one of the five 12 month periods following June 20, 1959, except that under the provisions of numbered paragraph 2 of the option he was required to defer the acquisition of the first 2,000 shares to which he became entitled until the expiration of 12 months from June 20, 1959. Though appellant under the terms of the option could not consummate the purchase of the first 2,000 shares until after June 20, 1960, the second 12 month period of the option began to run on June 20, 1960, and thus appellant after such date was entitled to purchase the second 2,000 shares of the said stock, which he attempted to do on July 18, 1960.”

It was undisputed that plaintiff had been in the employment of defendant for more than 12 months prior to the date of the option contract, and that his employment with defendant was terminated July 19, 1960. Hence, he was eligible to purchase 2,000 shares of stock during the year June 20, 1959, to June 20, 1960, as provided in paragraph numbered 1. He did not choose to do so, but made his first purchase June 29, 1960, or after the beginning of the second year. He was not entitled to purchase 2,000 shares on July 18, 1960, for that would have amounted to the purchase of 4,000 shares for the year June 20, 1960, to June 20, 1961. It is true that under provisions of paragraph 3 he could have purchased stock in the year 1964 in an amount sufficient to cover the first option year (June 20, 1959, to June 20, 1960) but he did not remain in the employment of ■ defendant sufficient time to qualify, under paragraph 3, to take full advantage of the option.

In our opinion the option contract was unambiguous. It seems clear that the one-year periods began and ended on June 20 of each year. As shown above, the closing portion of paragraph 3 refers to “the 12 month period ending June 20, 1964.”

In brief, the contract provided that plaintiff could purchase 2,000 shares of stock during the year June 20, 1959, to June 20, 1960. He did not exercise his option. He did exercise his option to purchase 2,000 shares during the year June 20, 1960, to June 20, 1961. The stock was issued to him. The defendant was not obligated, under the terms of the contract, to honor his request of July 18, 1960, for a second 2,000 shares during the year June 20, 1960, to June 20, 1961.

The judgment of the trial court is affirmed.


author: DIXON, Chjpf Justice.

text:
    Ellis S. HUMBERT, Appellant, v. R. N. ADAMS, d/b/a R. N. Adams Construction Company, et al., Appellees.
    No. 16034.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 28, 1962.
    Rehearing Denied Oct. 19, 1962.

      McCulloch, Ray, Rembert, Luna & Trot-ti, Earl Luna, Dallas, for appellant.
    Fred T. Porter, Dallas, for appellees.
   DIXON, Chjpf Justice.

This is an appeal from an order sustaining a plea of privilege. The parties will be given the same designations as in the trial court.

Plaintiff Ellis S. Humbert brought suit in Dallas County, Texas for damages in the amount of $100,000 against defendants T. L. James & Co. Inc., and R. N. Adams, doing business as R. N. Adams Construction Company. T. L. James & Company, Inc. is a foreign corporation with its principal office and domicile in the State of Louisiana. R. N. Adams, who filed the plea of privilege, is a resident of Kaufman County, Texas. The cause as to him was ordered transferred to Kaufman County.

Plaintiff Humbert in his petition pled that he was an inspector employed by the Texas State Highway Department. On or about November 17, 1960 he was the victim of an unprovoked assault and battery by one John Sears, alleged to be an employee of both defendants, and acting at the time in the course of his employment. According to plaintiff’s pleadings the defendants had a contract with the State for the construction of improvements on Highway No. 175. It was alleged that Sears was employed by defendants as a supervisor on the job. The assault and battery took place at the scene of the construction work.

The evidence shows that plaintiff suffered serious injuries. He was knocked down twice. He was kicked in the face and body. His spleen was ruptured. Several ribs were fractured. His face was cut and bruised. He spent seventeen days in Baylor Hospital. An operation was performed to remove his spleen. His hospital and doctor’s bills amounted to $1505.57. He is still weak.

In his plea controverting the plea of privilege of defendant R. N. Adams plaintiff alleged that venue should remain in Dallas County, Texas under Subdivisions 9, 23, 27 and 29a of Art. 1995, Vernon’s Ann.Civ.St.

In his first point on appeal plaintiff avers that the court erred in sustaining the plea of privilege where the evidence showed that defendant R. N. Adams, within the meaning of Subdivision 9, acting by and through his agent and employee, Sears, in the course of his employment, committed a trespass and offense in Dallas County against the plaintiff’s person.

In order to retain venue under Subdivision 9, plaintiff must sustain the burden of pleading and proving that the act complained of constituted a trespass or offense committed in Dallas County, that Sears was the agent of defendant Adams and that Sears, at the time was acting within the course of his employment. Magnolia Petroleum Co. v. Mitchell, Tex.Civ.App., 215 S.W.2d 263; Poe Motor Co. v. Martin, Tex.Civ.App., 201 S.W.2d 102; Moreland v. Hawley Ind. School District, Tex.Civ.App., 163 S.W.2d 892, 897, 169 S.W.2d 227; Brown Express, Inc. v. Arnold, 138 Tex. 70, 157 S.W.2d 138.

Plaintiff’s pleadings are sufficient but his evidence fails to prove the necessary venue facts.

The only testimony was that of the plaintiff himself, who testified briefly. His testimony is sufficient to support a finding that the trespass was committed in Dallas County and that Sears was an employee of defendant Adams. However his testimony, though undisputed, fails to constitute evidence that Sears was acting in the scope of his employment at the time he committed the assault and battery.

In Texas & Pacific Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, our Supreme Court states that it is not ordinarily within the scope of a servant’s authority to commit an assault on a third person. Usually an assault is the expression of personal animosity and is not for the purpose of carrying out the master’s business. The nature of the employment may be such as necessarily to involve at times the use of force, as where the employee’s duty is to guard the employer’s property and to protect it from trespasses. Even under such circumstances the act must be done within the scope of general authority of the servant in order to hold the master liable.

In the above cited case, Houghland, the defendant’s employee who committed the assault on Hagenloh, became incensed at Hagenloh because the latter had called him a liar. At the time Houghland was engaged in trying to find property missing from luggage. The Supreme Court held that Houghland, in striking Hagenloh, was not carrying out the railroad’s business, but was carrying on an enmity that had developed between him and the plaintiff. Though a jury had found that Houghland was acting within the course of his employment at the time of the assault, the Supreme Court reversed the judgment of the District Court and the Court of Civil Appeals and rendered judgment in favor of the defendant. Other cases to the same effect are Smith v. M. System Food Stores, Tex.Civ.App., 293 S.W.2d 215 (aff. 156 Tex. 484, 297 S.W.2d 112); Norris v. China Clipper Cafe, Tex.Civ.App., 256 S.W.2d 664; National Life & Accident Ins. Co. v. Ringo, Tex.Civ.App., 137 S.W.2d 828; Home Telephone & Elec. Co. v. Branton, Tex.Civ.App., 7 S.W.2d 627.

It is to be noted that in the Texas & Pacific Ry. and the Home Telephone cases, referred to above, the court said that the assault could be traced back to an activity which was in the course of employment, but said activity was too remote to be a part of the assault.

Applying the above principles to the present case we must hold that plaintiff Hum-bert’s own testimony shows that Sears at the time of the assault on Humbert was not acting within the course of his employment with defendant Adams. We quote material parts of Humbert’s testimony:

“Q All right; now then, tell the court what happened — just tell the Court what happened ?
“A Well, I walked up to Mr. Sears, to ask him a question and he informed me that I couldn’t call him a liar, and started swinging; * * *
“Q Now, what did you say to him when he told you that you couldn’t call him a liar ? Had you called him a liar ?
“A I told him I didn’t call him a liar; he had been mistaken about that, I had never called him a liar.
“Q All right, sir; now, and what did he do or say — did he say anything, or just start hitting?
“A He was just swinging and talking foul to me.
“Q Now, did you say anything further to him to try to get him to stop?
“A I told him it wasn’t any place to fight; we was both employed out there to do a job and we was supposed to try to get the job done, and get along and I wasn’t going to fight with him.
“Q Yet he continued?
“A Yes, he continued.
“THE COURT: (to the witness) What were you and Mr. Sears fussing about; what was the dispute or fight about ?
“THE WITNESS: He seemed to think that I had called him a liar.
“THE COURT: About what? What did you say, what did he say?
“THE WITNESS: Well, I don’t know; when I walked up, that was the first thing he said, and started swinging. I don’t know what he said might have started it; something way down the line that happened earlier that day; I don’t know.
“THE COURT: Well, what was that?
“THE WITNESS: Well, the material that was being used on the job was not passing the specifications and I had called into the laboratory to get the answers on it and they told me that it didn’t pass and my boss called me, Mr. T. O. Henley, had called me and told me—
“MR. PORTER: I object, even though the Court asked the questions.
“THE COURT: It would be hearsay, the fuss was about materials ?
“THE WITNESS: Well, presumably, Judge.
“MR. PORTER: Well, I understood you to say that the fight took place over the fact that he said you had called him a liar; isn’t that right ?
“THE WITNESS : That’s right.”

The assault arose out of a personal resentment on Sears’ part against Humbert. Sears was not in the course of his employment with Adams when the assault was committed. If there was any connection, at all between the assault and the alleged failure of some of the materials not “passing the specifications”, that connection, as Hum-bert himself said, was “something way down the line.” It was too remote to be considered a part of the assault.

Plaintiff’s first point is overruled.

In his second point on appeal plaintiff takes the position that venue may be maintained in Dallas County under Subdivisions 23, 27 and 29a of Art. 1995, V.A.C.S. because (1) the suit was filed in the county in which the cause of action arose and plaintiff resided in said county, and (2) one of the defendants, T. L. James & Co. Inc., was a foreign corporation doing business within the State of Texas with an agent in Dallas County, Texas.

We have read the statement of facts several times and we find no evidence that Sears was an employee of T. L. James & Co. Inc.; no evidence that said corporation, through any of its agents, had any connection with the alleged assault and battery; and no evidence that the corporation had an agent in the State of Texas or the County of Dallas. It was stipulated in open court that T. L. James & Co. Inc., is a foreign corporation domiciled in the State of Louisiana. Plaintiff attempted to introduce an alleged copy of a contract between the two defendants, and the State of Texas. This instrument, upon objection of defendant, was not admitted into evidence. Otherwise, the record evidence is silent as to the defendant, T. L. James & Co. Inc. There is not even any evidence in the record that plaintiff was a resident of Dallas County at the time of the assault.

Without going' into detail we shall simply say that in the absence of proof of any of the above facts Subdivisions 23, 27 and 29a of Art. 1995, V.A.C.S. are not applicable in this case. Educators Mutual Life Ins. Co. of America v. Skinner, Tex.Civ.App., 146 S.W.2d 276; Painter Bus Lines v. Carpenter, Tex.Civ.App., 146 S.W.2d 278; General Mills Inc. v. Livingston, Tex.Civ.App., 333 S.W.2d 215; Douglass v. Flintkote Co., Tex.Civ.App., 207 S.W.2d 635; Oakland Motor Car Co. v. Jones, Tex.Civ.App., 29 S.W.2d 861; mandamus denied, 121 Tex. 405, 48 S.W.2d 982; Haney v. Henry, Tex.Civ.App., 307 S.W.2d 649; Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758; Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774; R. E. Cox Dry Goods Co. v. Kellog, Tex.Civ.App., 145 S.W.2d 675. Plaintiff’s second point on appeal is overruled.

The judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    Charles R. SMITH, Appellant, v. Nathan J. CAMPBELL, Appellee.
    No. 3751.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 12, 1962.
    Brooks & Fergus, Abilene, for appellant.
    McMahon, Smart, Sprain, Wilson & Camp, Scarborough, Black & Tarpley, Abil-lene, for appellee.
   COLLINGS, Justice.

This is a summary judgment case. Orarles R. Smith brought suit against Nathan J. Campbell, who was doing business as Mission Motors, for alleged breach of an oral ninety day warranty in connection with the purchase of a Mobile Home trailer house, seeking judgment against the defendant in the sum of $3,796.96. By amended pleadings plaintiff alleged that “by mutual mistake or accident” a written agreement was executed by the parties expressly excluding the existence of warranties as agreed upon by the parties and further that the defendant fraudulently and falsely represented to plaintiff that such warranty existed and would be fulfilled; that such representation was material and was relied upon by plaintiff to his damage.

The defendant Campbell answered by a general denial and filed a third party petition against DeRose Industries, Inc., alleged to be the manufacturer of the trailer house in question. Campbell also filed a motion for summary judgment and upon hearing thereof the motion was granted. Summary judgment was entered for the defendant Campbell and the cross defendant DeRose Industries, Inc. Charles R. Smith has appealed.

Appellee Campbell’s motion for summary judgment was verified and filed on April 17, 1962. It had attached thereto and as a part thereof, Exhibit A, the original chattel mortgage, stated to have been executed by Smith. Appellee Campbell stated, under oath, that there were no material contested issues between the parties; that it was undisputed that no written warranty existed; that the full terms of any and all agreements between the parties are fully set out in the attached chattel mortgage executed by Charles R. Smith and his wife Telka B. Smith; that Paragraph Number 5 of said chattel mortgage provides that “this mortgage constitutes the entire agreement between the parties and no waivers or modifications shall be valid unless in writing and attached hereto, and the property described above has been accepted by mortgagor without warranties express or implied unless written thereon.” Appellee further stated under oath that no waivers or modifications in writing have been attached to said chattel mortgage and that there have been no warranties express or implied written thereon. Appellant filed no counter affidavit or other evidence in opposition to appellee’s motion for summary judgment.

Appellant presents one point of error in which it is urged that the court erred in rendering a summary judgment against him in view of the fact that under his pleadings and the motion for summary judgment there was a genuine dispute of fact to be resolved. Appellant’s contention, as we understand it, is that under his pleading of mutual mistake or accident and under his pleading of fraud, that even though the chattel mortgage and the verified motion of appellee for summary judgment expressly deny the existence of any warranty, nevertheless, under his pleadings, extrinsic evidence is admissible to show the terms of the real agreement between the parties and that this presents a genuine fact issue to be decided by the court, and that the court therefore erred in entering summary judgment against him. Assuming, without deciding that appellant’s pleadings do raise the issue of fraud we still cannot agree with his contention.

Appellee’s motion for summary judgment was supported by sworn statements which, if true, entitled him to summary judgment, in the absence of fraud as alleged by Smith. Contrary to appellant’s contention, mere pleadings do not show a genuine issue of fact as contemplated by Rule 166-A(f). Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948. Such a showing must be made “by depositions, admissions, affidavits or like proofs.” 29 T.L.R. 688. In Schepps v. American District Telegraph Company of Texas, Tex.Civ.App., 286 S.W.2d 684 (no writ history), it was held that when a party moves for summary judgment, issues raised merely by his opponent’s pleadings do not prevent summary judgment; that fact issues must be shown by depositions, admissions, affidavits or like proofs, and when the motion is supported by evidence sufficient on its face to establish facts which, if proven at trial would entitle movement to an instructed verdict the other party must present, in opposition thereto, admissions, affidavits o.r other sworn proof which will raise an issue as to the existence of other material facts which would require a different disposition of the case, or justify his failure to do so. Also see Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236 (N.R.E.); Stafford v. Wilkinson, 157 Tex. 483, 304 S.W.2d 364.

The judgment of the trial court is affirmed.


text:
    H.E. MILLER et ux., Appellants, v. CITY OF MERCEDES et al., Appellees.
    No. 3724.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 12, 1962.
    Rehearing Denied Nov. 2, 1962.
    James H. Lauderdale, Mercedes, for appellants.
    J.D. Vollmer, Mercedes, for appellees.
   COLLINGS, Justice.

H. E. Miller and wife Edna Mae Miller brought suit against the City of Mercedes, a municipal corporation, and its City Commissioners seeking to restrain the enforcement of an annexation ordinance which plaintiffs alleged to be void. Plaintiffs alleged that they were at all times material hereto residents of the area proposed to be annexed and owned their home within that area which will be burdened with taxes of the City of Mercedes under the ordinance which plaintiffs attack as being void.

Both plaintiffs and defendants filed motions for summary judgment. After hearing upon said motions, plaintiffs’ motion was denied and the defendants’ motion granted. Summary judgment was rendered that plaintiffs take nothing and that the in-junctive relief sought by them be denied. H. E. Miller and wife have appealed.

Appellants present points in which they urge that the court erred (1) in entering summary judgment in favor of appellees because they contend the ordinance of annexation is void in that it shows on its face that there is a material variance in the description of the property purported to be annexed from that described in the notice of hearing required by the Charter of the City, and erred (2) in entering judgment denying appellants’ motion for summary judgment for the reason that it is conclusively established by the pleadings and affidavits attached to appellants’ motion that there is a variance of approximately 3 square miles in the description of the property set out in the notice of hearing and that described in the annexation ordinance, and that, therefore, such ordinance is void.

The City of Mercedes is a home rule city and Article 1, Section 3, of its charter contains the following provisions:

“Section 3. The boundaries and limits of the City of Mercedes as herein defined, or as hereafter existing, may be extended so as to include within the corporate limits of the city any territory, or several areas, adjoining the limits of the city as then existing, by an ordinance passed by the City Commission specifically defining the territory or area to be annexed, and upon the passage and publication of said ordinance as herein provided such annexed territory or area shall thereupon become a part of the city, and the property and inhabitants within such area shall thereupon be vested and burdened with all of the rights, privileges and obligations thereof, provided, however, such ordinance shall not be passed by the City Commission unless and until either one of the following conditions have been complied with, to-wit:
“(a) * * *
“(b) That notice has been given to each property tax-paying voter residing within the territory or area to be annexed, of the intention of the City Commission to pass such ordinance, and an opportunity afforded to all persons interested to be heard upon the question of the annexation of such territory or area to the city, at the time and place designated in said notice. The notice herein provided for shall contain a brief declaration of the intention of the City Commission to pass an ordinance including such territory or area within the city, specifically defining such territory or area, setting a time and place for a hearing upon said question, signed by the City Secretary, or his assistant, and shall be mailed to each property taxpaying voter residing within such territory or area at least (20) days prior to the date set for said hearing. The depositing of such notice addressed to such property tax-paying voter, in the United States mails at Mercedes, Texas, addressed to such property tax-paying voter residing within said territory, at his last known address, shall be deemed sufficient delivery of said notice. The hearing provided for herein shall be before the City Commission at the time and place designated in said notice, but said hearing may be adjourned from time to time, or day to day, until completed, and at which said hearing any person interested shall be granted a full opportunity to be heard upon the question of the annexation of said territory or area to the city. The action of the City Commission upon said hearing shall be recorded upon the minutes of the City Commission.
“The ordinance herein provided for shall be published for two consecutive weeks in a newspaper published within the City of Mercedes, and upon the publication thereof it shall be conclusively presumed that all requirements of law, and of this charter have been regularly and legally complied with for the proper annexation of said territory or area to the city.”

The annexation of additional territory and the extension of the city limits of a municipality must be in compliance with whatever requirements are imposed by the city charter or the statutory authority under which the municipality operates. However, an immaterial variation from such requirements is not fatal and does not .render void an ordinance of annexation. 62 C.J.S. Municipal Corporations § 55, pp. 157, 158.

It is undisputed that the territory described in the notice of hearing of the annexation covered an area approximately three miles larger than the area described in the annexation ordinance. Appellants contend that such a variance renders the ordinance void. This contention is the basis of both points urged by appellants. Appellants contend that one of the requirements for the annexation of territory set out in the charter of the City of Mercedes was the giving of notice to each property taxpaying voter residing within the territory of the intention of the city commission to pass an ordinance annexing the territory and that the charter requires that such territory shall he specifically defined in the notice. Appellants do not question the sufficiency of the notice given except as hereinafter set out. Appellants contend, however, that no notice was given of the intention of the Mercedes City Commission to pass the ordinance here in question; that the only notice given was a notice of intention to pass a different ordinance defining a different territory, that is, a more extensive territory than that described in the ordinance of annexation in controversy.

It is also undisputed that the territory annexed by the ordinance of the City of Mercedes lies wholly within the boundaries of the territory described in the notice. An examination of the provisions of the material portions of the charter of the city as above set out shows that a notice of hearing is required to afford each property taxpaying voter residing within the territory to be annexed and all other persons interested therein an opportunity to be heard upon the question of annexation. Such notice was given. The notice contained a brief declaration of the intention of the city commission to pass an ordinance of annexation specifically defining the area intended to be annexed which included the territory described in the ordinance of annexation actually passed. The notice, therefore, did specifically define or describe the territory annexed. This in our opinion was a substantial compliance with the .requirement of the charter concerning the description of the territory to be annexed. The variance between the description of the area described in the notice and the description of the territory described in the annexation ordinance is not in our opinion a material one, and the annexation is not void.

Appellants particularly rely upon the case of the City of River Oaks v. Lake Worth Village, Tex.Civ.App., 231 S.W.2d 768, (Ref.N.R.E.). That case is distinguishable from the instant case. The city charter involved in the case of City of River Oaks provided that upon the introduction of any annexation ordinance in the city council it should “be published in the form it may finally be passed.” The evidence in that case showed that the annexation ordinance there involved did not include all of the territory described in the notice. The annexation ordinance in that case therefore failed to comply with the provisions of the city charter by failing to publish such ordinance “in the form in which it may finally be passed.” There was no such provision in the charter of the City of Mercedes.

There is another distinction and difference between the City of River Oaks’ case and the instant case. The amended ordinance of annexation in the City of River Oaks’ case was never published. The ordinance of annexation in the instant case was, as .required by the charter of the City of Mercedes, “published for two consecutive weeks in a newspaper published within the City of Mercedes.” It is not contended that there is any variation or anything wrong with the description of the territory in the publication of the ordinance except that it does not include all of the land described in the original notice of hearing given to each property taxpaying voter residing within the territory or area to be annexed. The variance complained of by appellants is not, in our opinion, material and their contention that the ordinance of annexation is void by reason thereof is not well taken.

Appellants’ contention in this respect is not well taken for still another reason. The provision of the charter of the City of Mercedes that the ordinance of annexation should be published for two consecutive weeks in a newspaper within the city provided further that “upon the publication thereof it shall be conclusively presumed that all requirements of the law, and of this charter have been regularly and legally complied with for the proper annexation of said territory or area to the city.” It is undisputed that the annexation ordinance in question was published for two consecutive weeks in a newspaper published within the City of Mercedes.

For the reasons stated, appellants’ points are overruled and the judgment of the trial court is affirmed.