author: FANNING, Justice.

text:
    Matthew ROBERTS, Appellant, v. Wayne Reagan JORDAN, Appellee.
    No. 7779.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 1, 1966.

      Bob Heath, Heath & Robinson, Houston, for appellant.
    Howell Stone, Thomas W. Foster, Tal-bert, Giessel, Barnett & Stone, Houston, for appellee.
   FANNING, Justice.

This suit arises from an intersectional collision in the City of Houston between appellant’s truck and appellee’s automobile.

Trial, was to the court with the aid of a jury. In response to special issues submitted, the jury found to the effect that defendant-appellee Jordan entered the intersection on a red light and that this was a proximate cause of the collision; that on the occasion of the collision in question, defendant-appellee failed to keep such a lookout for other vehicles as would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, and that such failure was a proximate cause of the collision; that defendant-appellee failed to timely yield right-of-way to plaintiff-appellant, and that such failure was negligence and a proximate cause of the collision in question; that on the occasion of the collision in question the plaintiff-appellant Roberts failed to keep such a lookout for other vehicles as would have been kept by a person of ordinary care, acting under the same or similar circumstances (Special Issue No. 12), and that such failure was a proximate cause of the collision in question. (Special Issue No. 13.) The jury further found $2500.00 damages for plaintiff-appellant. However, based upon the jury’s findings to Special Issues Nos. 12 and 13 to the effect that plaintiff-appellant’s failure to keep a proper lookout was a proximate cause of the collision, a take nothing judgment was entered by the trial court in favor of defendant-appellee Jordan. Plaintiff-appellant’s motion for judgment n. o. v. and his amended motion for new trial were overruled. Plaintiff-appellant Roberts has appealed.

Appellant, among other things contends to the effect that there was no evidence to support the findings of the jury to Special Issues Nos. 12 and 13, that the evidence was insufficient to support such findings, and that such findings were against the overwhelming weight and preponderance of the evidence.

When material facts are controverted, or are such that different inferences may be reasonably drawn therefrom, the question of fact thus raised should be submitted to the jury; it is only when the evidence is harmonious and consistent, and the circumstances permit but one conclusion, that the question becomes one of law for the determination of the court. An issue of fact is raised “if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.” Wininger v. Fort Worth & D. C. R. Co., 105 Tex. 56, 143 S.W. 1150; Maryland Casualty Co. v. Morua, Tex.Civ.App., 180 S.W.2d 194, writ refused.

If, however, the probative force of the evidence is so slight that it raises only a “mere surmise or suspicion of the existence of the fact sought to be established”, it is in legal contemplation no evidence at all, and it is the duty of the trial court to direct a verdict. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

For a comprehensive discussion of the law applicable to the determination of “no evidence” and “insufficient evidence” points see Chief Justice Calvert’s article “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex.Law Rev., No. 4, p. 361.

The collision in question occurred at the intersection of Main and Benz, Houston, Harris County, Texas, between 2:00 and 3:00 P.M., Sept. 26, 1962. Appellee Jordan approached the intersection on Main Street from the north in a 1962 Ford Falcon automobile, and appellant Roberts approached the intersection on Benz Street in his truck loaded with garbage, from the west. The intersection was controlled by traffic lights on each corner. Rain was fairly heavy and steady and the street surfaces were wet. Defendant-appellee Jordan was approaching the intersection at a' speed of 25 to 30 miles per hour. His visibility was several blocks or 300 to 400 yards. After entering the intersection, which the jury found was in violation of a red light, and proceeding some 51 feet across Benz, Jordan’s Falcon automobile struck appellant’s loaded truck at or near the left front wheel portion thereof, the front end of which truck was 26 feet from the curb on Main. Appellant’s truck was traveling at the rate of about 20 miles per hour. Appellee Jordan testified to the effect that the light was green as he approached the intersection and as he proceeded into it and that he first noticed the green light some four car lengths back and started to slow down when he saw the other vehicle was going to run what he thought was a red light. Appellee Jordan’s car proceeded some 108 feet from the point of impact, ending up in the northbound traffic just across the center line on Main.

Plaintiff-appellant Roberts on direct examination testified in part as follows:

“Q. Did you look to your right and left as you approached the intersection before you entered it or do you remember ?
A. No, I looked — I didn’t look either way, I just went straight ahead, I didn’t see anything when I was going, but when I — thereabouts to the intersection where the wreck was, me and a car got there about the same time.”

We quote from testimony of plaintiff-appellant Roberts on cross-examination, in part as follows:

“Q. Okay. Now you told the jury that you were, at the time that you entered the intersection, that you were not looking to your right or left but straight ahead and that is the truth ?
A. That is the truth.
Q. You could not have seen the other traffic if you wanted to because your window was fogged up?
A. The one on my helper’s side was up, mine was about that far from being up (indicating).
Q. It was about a finger width? (indicating a finger length)
A. Yes, from being closed.
Q. It was fogged up though from the motor being on?
A. Yes.
Q. If you had looked you probably could not have seen, could you ?
A. Well, I don’t know if I could have seen him or not, because I was not looking for anyone to come up there, he should have stopped, that was his job, my light was for me to go ahead (Emphasis added).
Q. How long have you been driving, Matthew ?
A. About forty years.
Q. During that time is that the way that you drive, if the light changes for you you pull blindly out into the street not looking to the right or left?
A. Well, you drive by the caution light.
Q. You mean the traffic signal?
A. Yes, I mean the traffic signal, red, green and yellow.”

We quote further from plaintiff-appellant Roberts’ testimony on direct examination in part as follows:

“Q. Did you have a heater?
A. No heater.
Q. And what about the windows ?
A. Windows ?
Q. In your truck.
A. Well, I had mine, it was just up enough to keep the rain off.
Q. What do you mean?
A. Liking about that much (indicating) of closing so it does not fog up.
MR. HEATH: Beg your pardon?
A. Like about that much of being closed up (indicating) so you don’t get no fog in there.
Q. All right. Now, was there anything that was distracting you from your driving at that time?
A. Nothing.”

Only three witnesses testified in the case, appellant, appellee, and Police Officer Albert who investigated the accident. It appears from the testimony of appellant Roberts that the speed of his truck was about 20 miles per hour and it appears from the testimony of appellee Jordan that the speed of his automobile was from 25 to 30 miles per hour. The drawing of Police Officer Albert, introduced into evidence, indicates that appellee Jordan was about twice as far into the intersection as appellant, and the jury could have logically inferred that ap-pellee Jordan must have reached the intersection first and that appellant Roberts failed to keep a proper lookout and such was a proximate cause of the collision, in view of such circumstances and in view of Mr. Roberts’ testimony hereinbefore quoted.

The fact that plaintiff-appellant Roberts had the right-of-way at the inter-secion and the fact that defendant-appellee entered the intersection on a red light would not relieve the plaintiff-appellant of the responsibility to maintain a proper look-out and to take other precautions for his own safety and the safety of others simply because he had the right of way. See Tips v. Gonzalez, Tex.Civ.App., 362 S.W.2d 422, no writ, and authorities cited therein, wherein it was stated in part as follows:

“It is not only required that the driver of a car must look both ways before entering an intersection, even on a green light, but after entering the intersection he must keep up such a lookout for his own safety as a reasonably prudent man would do under the same or similar circumstances. Henderson v. Smith, Tex.Civ.App., 354 S.W.2d 429, no writ history; Joe D. Hughes, Inc. v. Moran, Tex.Civ.App., 325 S.W.2d 829, ref. n. r. e.; Powell v. Sanders, Tex.Civ.App., 324 S.W.2d 587, no writ history; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877, ref. n. r. e.; Watts v. Dallas Ry. & Terminal Co., Tex.Civ.App., 279 S.W.2d 400, ref. n. r. e.; Cannady v. Dallas Ry. & Terminal Co., Tex.Civ.App., 219 S.W.2d 816, no writ history; Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910, ref.; Allen v. De Winne, Tex.Civ.App., 268 S.W.2d 677, modified by Sup.Ct., remanded on other grounds, De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, finding of jury held not to be against great weight and preponderance of the evidence by Court of Civil Appeals, 285 S.W.2d 895.
“The finding of proximate cause is supported by the evidence because if Tips had kept a proper lookout he might have stopped, turned, sounded his horn, or speeded up to avoid the collision.”

Also in Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877, wr. ref., n. r. e., it was stated in part as follows:

“The rule is often stated that a person is not bound to anticipate negligence or unlawful conduct on the part of another. Texas & N. O. R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112; Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063. However, it does not necessarily follow as a matter of law, that a person who has the right of way at an intersection is under no duty to exercise such care for his own safety as a reasonable prudent person would exercise under the same or similar circumstances. Thus, every person proceeding along and across a public thoroughfare is under the duty at all times to maintain a proper lookout and a proper control of his vehicle for his own safety, and may not proceed blindly and heedlessly in disregard of dangers that might reasonably be anticipated to exist. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95; Blunt v. H. G. Berning, Inc., Tex.Civ.App., 211 S.W.2d 773, writ ref.; Brown v. Dallas Ry. & Terminal Co., Tex.Civ.App., 226 S.W.2d 135, writ ref.; Tidy Didy Wash v. Barnett, Tex.Civ.App., 246 S.W.2d 303, writ ref., n. r. e.; Johnson v. East Texas Motor Freight Lines, Tex.Civ.App., 271 S.W.2d 708.”

Also in Henderson v. Smith, Tex.Civ.App., 354 S.W.2d 429, no writ, it was stated in part as follows:

“The fact that plaintiff had the right of way did not excuse her from exercising ordinary care for her own safety. Although not required to anticipate negligent or unlawful conduct on the part of others, she was not entitled to close her eyes to that which was plainly visible and which would have been observed by a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273.”

We hold that there was evidence of probative force to support the jury’s findings to Special Issues Nos. 12 and 13, and that the same was amply sufficient to support such findings.

Also, after carefully considering and reviewing the entire record in this cause in the light of the rules announced in the case of In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we further hold that the jury’s findings to Special Issues 12 and 13 are not so contrary to the great weight and preponderance as to be clearly wrong and manifestly unjust.

Appellant’s remaining contentions do not present error under the record in this cause. All of appellant’s points have been considered and are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PHILLIPS, Justice.

license: Public Domain

text:
    Mike BUTLER et al., Appellants, v. Emmett SHELTON, Sr., et al., Appellees.
    No. 11426.

      Court of Civil Appeals of Texas. Austin.
    Nov. 2, 1966.
    Rehearing Denied Nov. 23, 1966.

      J. Malcolm Robinson, Austin, for appellants.
    Holloway & Holloway, Sterling Holloway, Austin, for appellees.
   PHILLIPS, Justice.

In 1949 the appellees, plaintiffs below, conveyed 3.18 acres of land to five grantees, designated in the deed as trustees, to be used “as a park for educational and recreational purposes” for all persons who had purchased or would purchase property from the appellees within a particular 500 acre tract owned by them.

The instrument of conveyance was in the form of a general warranty deed.

In March, 1965 three of the original five grantee-trustees reconveyed the property to appellees. The remaining two trustees refused to join in this conveyance back to the appellees. Consequently, appellees executed and filed an instrument purporting to revoke and cancel the original conveyance executed in 1949 and filed suit against the two trustees who refused to join in the above-mentioned deed recon-veying the property to appellees.

This suit was for a declaratory judgment seeking an adjudication of appellees’ title, and right of possession.

The trial court held that there was no genuine issue as to any material fact, that title to the land was determined by the instruments involved, that the original deed created a trust revocable under the provisions of the Texas Trust Act, Art. 7425b-41, Vernon’s Ann.Civ.St., and that the revocation by the trustors, coupled with the reconveyance by the majority of the trustees, revested title in the appellees. Wherein, the trial court granted the ap-pellees’ motion for summary judgment and it is from this judgment that appellants have perfected their appeal to this Court.

We affirm the judgment of the trial court.

Appellants are before this Court with six points of error, the first being that the judgment for appellees is void because the Attorney General of Texas was not a party to this lawsuit.

We overrule this point.

Appellants’ position here is that if the conveyance in question is a trust, as contended by appellees, it must be a charitable trust and that the Attorney General of Texas was a necessary and indispensable party under the requirement of Article .4412a, V.A.C.S.

We do not agree with the appellants here. In the first place, we hold that the abovementioned conveyance constituted a trust and is subject to the provisions of the Texas Trust Act. See Subsections 2 and 7, Article 7425b; 57 Tex.Jur. 2d, page 403 and the cases cited. The conveyance created an express trust in the land involved, with the legal title vested in the trustees for the benefit of certain landowners of a particular tract of land.

We also hold that while the purposes of this trust are compatible with the recognized objectives of a charitable trust, it fails as such because of the type beneficiary affected. Trusts for a charitable purpose must be for the benefit of an indefinite number of persons. If individual beneficiaries are designated, the trust would not be for a public charity but would be for a private charity. Powers v. First National Bank of Corsicana, Tex.Comm.App., 138 Tex. 604, 161 S.W.2d 273. Here the property owners of the area involved are the beneficiaries of the trust and are easily and readily identifiable at any given time from the deed records of Travis County, Texas. Also, see Scott v. All Saints Hospital, Tex.Civ.App., 203 S.W. 146; Paschal v. Acklin, 27 Tex. 173, 174.

Appellants’ second point of error is that of the trial court in determining that the deed of conveyance of 1949 was a voluntary trust as contemplated by Section 41 of the Texas Trust Act.

We overrule this point.

Appellants contend here that ap-pellees’ motive in 1949 in conveying the 3.18 acres as a park was an inducement to lure prospective buyers into this area for the purpose of purchasing property from the plaintiffs; that this motive was supported by the affidavit of one of the purchasers in the area who stated therein that when he purchased the property, the ap-pellees Shelton, his son, and the seller of the property, all represented to him that the property was a permanently dedicated park. From this, appellants contend that the 1949 conveyance was not a voluntary conveyance but was contractual in origin based upon a valid consideration.

The relevant provision of the Texas Trust Act, Art. 7425b-41, is as follows:

“Every trust shall be revocable by the trustor during his lifetime, unless expressly made irrevocable by the terms of the instrument creating the same or by a supplement or amendment thereto.”

Since we have determined that the conveyance in question is a trust subject to the Texas Trust Act and since the trust was not expressly made irrevocable (discussed further under appellants’ third point of error below) Art. 7425b-41 of said Act, is applicable.

It is not necessary to this opinion to discuss the question of revocability of trusts created for a valuable consideration as the record here does not furnish any basis for this theory. Neither by their affidavits nor in any other manner, do appellants contend that appellees received or were paid any consideration of any kind at the time of the execution and delivery of the trust deed; or that the appellants, or anyone else, purchased property in consideration of any commitment by the appellees to execute the deed, or that any purchaser bought any lands from appellees thereafter in reliance upon any promise or commitment by the appellees to alter or enlarge the rights created under it.

Appellants’ third point of error is that of the trial court in determining that the conveyance was revocable when by its own terms it was made irrevocable.

We overrule this point.

Appellants’ position here is that the conveyance in trust was in the form of a general warranty deed wherein in warranting the title into the trustees the customary words “to WARRANT and FOREVER DEFEND * * * ” were used, however, the warranty above quoted follows the statutory language, except for the substitution of the words “and their successors as trustees,” for the statutory words “his heirs and assigns forever.” Thus the word “forever” is omitted from the latter phrase. Also, the habendum clause of this deed, which immediately precedes the warranty does not follow the statutory form: “To have and to hold the above described premises * * * unto the said * * *, his heirs and assigns forever.” Rather, it reads: “To have and to hold the above described premises * * * unto the said trustees and their successors for the use and benefit of property owners in the above described 500 acre tract. * * * ”

The deed throughout indicates the trust nature of the instrument. It binds the grantors at all times to defend the title of the property while in the hands of the trustees, and their successors as trustees. It would be a strained and unwarranted construction to hold that the statutory form of general warranty in a trust deed has the effect of expressly making it irrevocable. To make a trust irrevocable the act requires express terms of irrevocability. McCauley v. Simmer, Tex.Civ.App., 336 S.W.2d 872, error dism.

We also hold that the trial court properly held that the reconveyance of the trust property by the majority of the trustees revested title thereto in the trustors.

Article 7425b-18 provides:

“Unless it is otherwise provided by the trust instrument, or an amendment thereof, or by court order:
A. Any power vested in three or more trustees may be exercised by a majority of such trustees; but a trustee who has not joined in exercising a power shall not be liable to the beneficiaries or to others for the consequences of such exercise, nor shall a dissenting trustee be liable for the consequences of an act in which he joins at the direction of the majority trustees, if he expressed his dissent in writing to any of his co-trustees at or before the time of such joinder.”

By deed of date March 25, 1965, the majority of the trustees reconveyed the property to the appellees. As recited in the instrument they recognized that the property had never been used for the purpose for which it had been conveyed, and that there was no prospect of its being so used. The trustees had paid no taxes on the land, and by the terms of their reconveyance appellees took the land subject to any taxes which appellees themselves had not paid.

Likewise we overrule appellants’ points four, five and six which are the errors of the trial court in ignoring the disputed fact issue raised by the defendants as to laches; in ignoring the disputed fact issue raised by dedication; in ignoring the disputed fact issue raised as to estoppel.

As stated above, this trust was revocable during the lifetime of the trustor due to statutory right and such right is not dependent upon grounds or reasons. The right is unqualified and unconditional, given by statute, with or without reasons, and it continues during and throughout the trustor’s life. It is a right secured to the trustor which he may, but is not required to, exercise at any particular time. The appellees did this in timely and proper manner, and, having done so, were re-vested with title from that date forward. Additionally, the conveyance by the majority of the trustees independently of the act or revocation had the effect of revest-ing title in the appellees. Only when the appellants sought to interfere with the assertion of that revested title did the ap-pellees’ cause of action accrue and they promptly filed suit to have their rights adjudicated by declaratory judgment. Consequently, this action is not barred by any statute of limitations, laches or stale demand.

Since appellants must rely upon the 1949 deed to the trustees for their theory of dedication, we hold that such was insufficient. This is so, not only because of the fact that the instrument created a trust to be governed by the act as described above, but also, inasmuch as the park was set aside to a specific group of property holders, it is restricted to a specific group and the law does not recognize a private dedication. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, Sup.Ct.

Due to the nature of the trust created and the law pertinent thereto and since there is no contention that there were any acts on the part of appellees prior to the execution of the trust deed which could have raised the issues necessary to create an estoppel, we overrule this theory.

The judgment of the trial court is affirmed.

Affirmed.

      . On January 5, 1949, Emmett Shelton and Elba May Shelton executed a deed covering the land here involved, in which the relevant part of the granting clause read: “ * * * we do hereby Grant, Sell, and Convey unto the following named persons as Trustees, under the hereinafter set forth trust: namely, Mike Butler, J. W. Boggus, Gilbert Shelton, Burton Wilson, and T. J. Butler, Jr. * * This was followed by a description of the 3.18 acres of land conveyed, in the T. J. Chambers Survey, which was a part of a 500-acre tract in this survey previously purchased by appellees, and in part still owned by them.
      The habendum clause in this deed reads as follows:
      “TO HAVE AND TO HOLD the above described premises together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Trustees and their successors, for the use and benefit of the property owners in said above described 500 acre tract of land conveyed to the Grantors herein by the San Antonio Loan and Trust Company, to be used as a park for recreational and educational purposes only. It is expressly stipulated that this grant is not made to the public generally but is restricted to the use and benefit of said above mentioned group of property owners.”
      This was followed by a statutory form of General Warranty to the Grantees, as Trustees. After the Warranty is the following language:
      “It is also expressly stipulated that the exclusive management and control of said land shall be vested in said trustees, and their actions shall not be subject to any restrictions on the part of the beneficiaries acting either individually or collectively.”
      There is no contention that appellees received from anyone payment of consideration of any kind at the time of this conveyance.

      . Section 2 of Article 4412a is as follows:
      “For and on behalf of the interests of the general public of this state in such matters, the Attorney General shall be a necessary party to and shall be served with process, as hereinafter provided, in any suit or judicial proceeding, the object of which is:
      a To terminate a charitable trust or to distribute its assets to other than charitable donees, * * * ” Section 4 is as follows:
      “A judgment rendered in any suit or judicial proceeding referred to in this Article without service or process upon the Attorney General shall be void and unenforceable. * * * ”


author: BARROW, Justice.

text:
    STULL CHEMICAL COMPANY, Appellant, v. CAPITAL SOUTHWEST CORPORATION, Appellee.
    No. 14530.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 2, 1966.
    Joe Frazier Brown, W. Pat Camp, San Antonio, for appellant.
    Akin, Vial, Hamilton, Koch & Tubb, Henry D. Akin, Arthur E. Hewett, Dallas, for appellee.
   BARROW, Justice.

This is a plea of privilege case involving Subdivisions 5 and 7 of Article 1995, Vernon’s Ann.Civ.St. Appellant, Stull Chemical Company, brought this declaratory judgment action against Capital Southwest Corporation, a Texas corporation domiciled in Dallas County, Texas, to construe a loan agreement whereby appellee loaned appellant $350,000. By alternative, plea, appellant sought rescission of the agreement because of alleged fraudulent misrepresentations. Appellee’s plea of privilege was sustained following a non-jury hearing. There are no findings of fact or conclusions of law.

The loan agreement was executed in Dallas County by appellee and E. B. Stull, president of appellant, around the first of October, 1963, and ratified by resolution of the board of directors of appellant on October 4, 1963. The primary obligations under this lengthy written agreement are that in consideration of the loan of $350,000 appellant agreed to issue twenty 7% debentures in this aggregate sum to repay the loan, the last of which was due on or before October 1, 1970, and further agreed to execute a stock purchase warrant to ap-pellee. This stock purchase warrant, by its terms, gives appellee the right to purchase up to 75,030 shares of appellant’s common stock at any time prior to thirty days after receipt of appellant’s fiscal statement for the year ending September 30, 1970.

On April 1, 1964, appellant exercised its privilege under the loan agreement of prepayment of the loan in full, and sought to require appellee to exercise its option under the stock purchase warrant at that time. Appellee advised that it did not desire to do so at that time, but reserved its right to do so at any time prior to the 1970 expiration date. Appellant asserted that the stock purchase warrant was extinguished when the loan was fully repaid, and filed this suit in Bexar County to resolve this dispute.

To maintain venue in Bexar County under Subd. 5, supra, appellant was required to establish by a preponderance of the evidence that appellee contracted in writing to perform in Bexar County the contractual obligation which is the basis of the suit. McDonald, Texas Civil Practice, § 4.11.5; Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950); Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 834, 81 S.W.2d 675, Tex.Com.App., Opinion Adopted; Barker v. Lone Star Brewing Co., Tex.Civ.App., 350 S.W.2d 44; Rogers v. Waters, Tex.Civ.App., 262 S.W.2d 521; McKinney v. Moon, Tex.Civ.App., 173 S.W.2d 217; Bomar Cotton Oil Co. v. Schubert, Tex.Civ.App., 145 S.W. 1193, wr. ref.

Appellant urges that venue is maintainable in Bexar County in that the stock option must be exercised at its office in Bexar County. It is seen, however, that there is no obligation requiring appellee to exercise this option. A “stock purchase warrant” by its very nature creates only an option to the holder to purchase the stock on specified terms. 36 Yale L.J. 649. This particular warrant does not bind appellee to any obligation, but merely gives it the right to purchase stock should it elect to do so. Appellee is not thereby “obligated” to do anything in Bexar County, and the trial court properly held that venue was not sustainable under this exception.

Venue is also asserted under Subd. 7, supra. Under this exception, appellant was required to establish by a preponderance of the evidence that: (1) fraud did in fact occur; (2) which was committed by one for whose acts the appellee is legally responsible; and (3) the fraud occurred in Bexar County. McDonald, Texas Civil Practice, § 4.13. Since no findings of fact were filed it must be presumed that the trial court found all fact issues in such a way as to support the judgment. Pittsburgh Plate Glass Co. v. Bragg, Tex.Civ.App., 383 S.W.2d 623, wr. dism.; 4 T.J.2d, Appeal and Error—Civil, § 806.

Appellant urges that the President of appellee represented to Mr. Stull at the time the loan agreement was negotiated that appellee would not have a right to exercise its stock purchase warrants after the loan was fully repaid. It is further urged that Mr. Cooney, a director of ap-pellee, made a similar representation before appellant’s board of directors on the occasion when the resolution approving the loan agreement was adopted. There was testimony from Mr. Stull which would have supported such a finding. On the other hand, the testimony of Mr. Cooney contradicts this testimony, and he is corroborated by the committal letter written by appellee and accepted by appellant prior to execution of the loan agreement, the terms of the stock purchase warrant itself, and the resolution adopted by appellant’s directors.

The implied finding of the trial court that no false representation was made by an agent of appellee is fully supported in the record. Venue, therefore, is not maintainable in Bexar County under Subd. 7.

The judgment is áffirmed.


author: CHADICK, Justice.

text:
    TEXARKANA COLLEGE BOWL, INC., John M. Garvey, C. Ed Mitchell and Richard J. Schneider, Appellants, v. Cecil PHILLIPS, Appellee.
    No. 7763.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 1, 1966.

      Raffaelli, Keeney & Pesek, Texarkana, for appellants.
    William A. Barber, Jr., Grand Prairie, •for appellee. «
   CHADICK, Justice.

This is a minority stockholder suit. The judgment of the trial court appointing a ■receiver without notice is reversed and the -case remanded to the trial court.

Texarkana College Bowl, Inc., is a corporation domiciled in Bowie County, Texas, and engaged in operating bowling lanes as a business. The appellee, Cecil Phillips, owns 25% of the corporation’s capital stock and the current corporate directors John M. Garvey, C. Ed Mitchell, and Richard J. Schneider own the remainder of the stock in unspecified percentages. The Brunswick Corporation sued Texarkana College Bowl, Inc., and its directors, Garvey, Mitchell and Schneider for indebtedness and to foreclose a mortgage in the United States District Court for the Northern District of Texas. In one phase of the Federal court suit Phillips was enjoined in his individual capacity from the continued operation of the business of Texarkana College Bowl, Inc., and in compliance with the injunctive order he ceased to operate the business on April 29, 1966.

On May 5, 1966, Phillips as plaintiff instituted this suit under review naming Texarkana College Bowl, Inc., John M. Garvey, C. Ed Mitchell and Richard J. Schneider as defendants, and prayed for the appointment of a receiver for the assets and businesses of the defendant corporation. The defendants did not file an answer. The trial judge granted the application without hearing and all of the defendants have perfected appeals.

Phillips’ petition does not particularize separately the statutory or equitable grounds underlying his application. The Business Corporation Act, V.A.T.S. authorizes appointment of a receiver to rehabilitate a corporation. The provisions thereof having pertinence to this appeal are as follows:

“Art. 7.05. A. A receiver may be appointed for the assets and business of a corporation by the district court for the county in which the registered office of the corporation is located, whenever circumstances exist deemed by the court to require the appointment of a receiver to conserve the assets and business of the corporation and to avoid damage to parties at interest, but only if all other requirements of law are complied with and if all other remedies available either at law or in equity, including the appointment of a receiver for specific assets of the corporation, are determined by the court to be inadequate, and only in the following instances :
“(1) In an action by a shareholder when it is established:
(a) That the corporaion is insolvent or in imminent danger of insolvency; or
(b) That the directors are deadlocked in the management of the corporate affairs and the shareholders are unable to break the deadlock, and that irreparable injury to the corporation is being suffered or is threatened by reason thereof; or
(c) That the acts of the directors or those in control of the corporation are illegal, oppressive or fraudulent; or
(d) That the corporate assets are being misapplied or wasted.
(2) * * *
(cl) ⅜ ⅜ ⅜
(b) * * *
(3) In any other actions where receivers have heretofore been appointed by the usages of the court of equity.
g * * *»

The only facts in the case are those that are alleged in Phillips’ sworn petition; however such facts must be regarded as fully proven in the determination of the appeal. Friedman Oil Corporation v. Brown (Tex.Civ.App.), 50 S.W.2d 471, no writ; Receivers, 49 Tex.Jur. § 65.

Phillips’ petition alleges that corporate assets are being misapplied and wasted by those in control of the corporation and that such persons’ acts were illegal, oppressive and fraudulent. Such conduct is expressly made grounds for receivership by Article 7.05. supra. The particular facts alleged in support of these charges are that the defendants’ failure to reopen and operate the business will: (1) cause loss of bowling leagues organized and scheduled over a period of years; (2) cause loss of business and good will; (3) cause disruption in Texarkana Junior College’s physical education classes that use the corporation’s facilities under contract; (4) require the refund to the college of money paid for use of the bowling facilities; and (5) constitute an abandonment of the purposes and functions of the corporation. The management of the business of a corporation is vested by Art. 2.31. of the Business Corporation Act in the corporation’s board of directors, and stockholder’s dissatisfaction with corporate management is not by Art. 7.05. supra made grounds for a receivership. See Jewell v. Sal-O-Dent Laboratories (Tex.Civ.App.) 69 S.W.2d 544, writ ref.; Receivers, 49 Tex.Jur.2d § 28, p. 49; Corporations, 19 Am.Jur.2d § 533, p. 70. The facts set out are not inconsistent with the honest exercise of business judgment and discretion by the board of directors nor are the facts indicative that the board was wasting and misapplying assets, nor that its action had been or would be illegal, oppressive or in fraud of the corporation or its shareholders.

Another set of facts found in Phillips’ allegations are that the directors “hired to represent Texarkana College Bowl, Inc., attorneys whose interests are adverse to the continued operation of Texarkana College Bowl, Inc., in that such attorneys represent Texarkana College Bowl, Inc’s, competitor in the Bowling business, * * * whose interest would be served through the closing down of Texarkana College Bowl, Inc.” Considering the allegation as sufficient to allege as a fact that the retained legal counsel had an interest adverse to the continued operation of Texarkana College Bowl, Inc., such fact does not prove or tend to prove the acts of the directors were illegal, oppressive, fraudulent, or that corporate assets were, or about to be misapplied or wasted. The record contains no fact tending to show the action of the directors was the consequences of the advice of legal counsel, or that the Board consulted, relied upon, was influenced or misled in any degree by legal counsel in making and carrying out a management decision not to reopen and operate the corporate business after Phillips closed the operation pursuant to the Federal Court order. The conflict of interest attributed to legal counsel is not per se a fraud upon the corporation or its stockholders. Legal counsel may, within very narrow limits, represent clients having adverse economic interests. Attorney at Law, 7 Am.Jur.2d 62, § 32; 7 C.J.S. Attorney and Client, § 47, p. 826.

Phillips’ petition contains an additional factual allegation that in November, 1964, 'while John M. Garvey and C. Ed Mitchell were directors of Texarkana College Bowl, Inc., they fraudulently caused the corporation’s real estate to be conveyed to themselves for the ostensible purpose of obtaining additional loans for the benefit of the corporation, but that no loans were negotiated, and that Garvey and Mitchell have continued to hold the property. The petition continues with the allegation that at the time the suit for receivership was instituted there was pending a suit in the same court to set aside the conveyance mentioned. The parties to such pending suit are not named, but the implication is that the corporation, Garvey, Mitchell and Phillips are parties in some capacity.

For the purpose of discussing this last ground it will be assumed the facts of the allegation are established as alleged. A receivership for the assets and business of a corporation is prohibited by Article 7.05. of the Business Corporation Act unless it is shown that all other remedies are inadequate to conserve the corporation’s assets and business and to avoid damage to parties at interest. This record does not purport to show that the pending suit will not afford Phillips adequate relief.

The facts alleged in Phillips’ petition will sustain neither a statutory nor equitable receivership, so it must be held that the trial judge improvidently granted the receivership in the ex parte proceeding. The judgment is reversed and the case is remanded to the trial court.


author: MOORE, Justice.

text:
    Ex parte Harold EIDINOFF.
    No. 227.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 20, 1966.
    Rehearing Denied Dec. 1, 1966.

      Willis Jarrel, James Lewis, Tyler, for petitioner.
    W. Barton Boling, Dist. Atty., El Paso County, El Paso, William E. Coats, Dist. Atty., Smith County, Tyler, for respondent.
   MOORE, Justice.

This is an appeal from a proceeding on a writ of habeas corpus. Petitioner was in-dieted for murder. His defense was insanity. The jury found him insane at the time of the commission of the offense as well as at the time of the trial. By a judgment duly entered by the 140th District Court of Lubbock County, Texas, on November 18, 1959, petitioner was committed to the Rusk State Hospital in Cherokee County until he became sane, in accordance with Article 932b, C.C.P., Vernon’s Ann.T ex. Civ. St.

On July 10, 1964, he filed a petition in the County Court of Cherokee County, for a re-examination and hearing of his present mental condition, under the provisions of Article 5547, Vernon’s Ann.Tex.Civ.St., alleging that he was no longer mentally ill and was therefore entitled to be discharged. Thereafter, upon his application for a change of venue, the proceeding was transferred to the County Court of Smith County, Texas. When the matter was called for trial, however, petitioner voluntarily dismissed the cause by taking a non-suit. Shortly thereafter on the same day, while petitioner was still in the custody of the Sheriff of Smith County, he filed his application for a writ of habeas corpus with the judge of the 7th Judicial District Court of Smith County, alleging that he was sane and that he was being illegally confined by Harlan Long, Sheriff of Smith County; James H. Kreimeyer, Acting Superintendent of the Rusk State Hospital and Richard S. Burruss, County Judge of Smith County. The application was presented to the District Judge in chambers. Without notice to the state, the trial judge issued a writ of habeas corpus returnable on November 8, 1965. For some reason, the case was not heard on that date. On December 23, 1965, the state filed a motion to dismiss the application and writ and requested a hearing on the motion. After a hearing on the motion to dismiss, held on December 30, 1965, the trial court entered an order which recited, in part, as follows:

“It is THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that Petitioner’s Petition and Application for Writ of Habeas Corpus be and the same is hereby in all things denied, and the Writ of Habeas Corpus heretofore issued by this Court in this cause is in all things hereby ordered dismissed.”

Petitioner duly excepted to the ruling of the court and perfected this appeal.

No evidence was offered at the hearing on the issue of petitioner’s sanity, nor was any such evidence tendered by way of a bill of exception. Petitioner does not now contend that the record is sufficient for us to order his discharge. His prayer is that the cause be reversed and that the trial judge be ordered to hear the case on its merits and determine whether he is now sane and entitled to be released.

Respondents, on the other hand, contend that the appeal must be dismissed for want of jurisdiction. We think this contention must be sustained.

The action of the trial court in dismissing the application and recalling the writ of habeas corpus is tantamount to a refusal to grant the writ in the first place. It is now settled that such an order is not a final judgment of which this court has jurisdiction on appeal. Ex parte Strong, 34 Tex.Cr.R. 309, 30 S.W. 666; Ex parte Hodges, Tex.Cr.App., 45 S.W. 913; Ex parte Dugue, 169 Tex.Cr.R. 293, 333 S.W.2d 382.

Appellate jurisdiction exists only after a hearing upon the merits of the case. Ex parte Jones, 34 Tex.Cr.R. 344, 30 S.W. 806.

There being no trial on the merits in the court below, this court has no jurisdiction and for this reason, the appeal must be dismissed.

      . Section 1(b).
      “If the jury finds the defendant to be insane at the time of trial, the court shall enter an order committing the defendant to a State mental hospital * * * to be confined therein until he becomes sane.”
      Section 2.
      “A person committed to a State mental hospital under this act upon a jury finding of insanity at the time of trial who has been acquitted of the alleged offense is not by reason of that offense a person charged with a criminal offense and therefore the head of the mental hospital to which he is committed may transfer, furlough and discharge him and shall treat him as any other patient committed for an indefinite period.”

      . Section 82.
      “(a) Any patient, or his next friend on his behalf and with his consent, may petition the county judge of the county in which the patient is hospitalized for re-examination and hearing to determine whether the patient requires continued hospitalization as a mentally ill person.
      “(f) If the court finds that the patient does not require continued hospitalization as a mentally ill person, the court shall order the head of the hospital to discharge the patient. Otherwise, he shall dismiss the Petition.”
      Section 4 defines a “mentally ill person” as one who is of unsound mind or whose mental health is substantially impaired.


author: BARROW, Justice. CADENA, Justice

text:
    Robert WILKERSON, Appellant, v. DARRAGH & LYDA, INC., et al., Appellees.
    No. 14499.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1966.
    Rehearing Denied Nov. 23, 1966.

      Rice, Whitehead & Seely, San Antonio, for appellant.
    House, Mercer, House & Brock, Beck-mann, Stanard, Wood & Vance, Seagal V» Wheatley, Groce, Hebdon, Fahey & Smith, Edward E. DeWees, Jr., Haight, DeWees & Holland, San Antonio, for appellees.
   BARROW, Justice.

Appellant, Robert Wilkerson, complains of a take-nothing judgment rendered on a jury verdict in his suit to recover damages against appellees, Darragh & Lyda, Inc., and four other parties, for personal injuries sustained in an accident on a construction site. The only question on this appeal is whether the trial court’s failure to poll the jury in the manner prescribed by Rule 294, Texas Rules of Civil Procedure, presents reversible error.

Appellant’s bill of exception, duly approved by the trial court in accordance with Rule 372, T.R.C.P., sets forth the following proceedings which occurred after the jury returned its verdict inte court but before it was received and ordered filed by the court:

“THE COURT: * * * Members of the jury panel, are the answers to each of the questions, as read by the Court the answers of each of you ?
MR. RICE: Judge, I would like to have them polled individually.
THE COURT: I will poll them individually. I asked them first. As I originally stated, I will ask the jury whether or not those answers, as read, were the answers of each of them, and that is what the Court is doing now, counsel. Members of the jury panel, are the answers as read by the court the answers of each of you to the questions: which you have answered in this cause (the jury panel responded to the Court’s inquiry) ? Let the record show that the jurors each said or nodded an affirmance of their head that it was their answers.
Now I poll the jury on question No. 45: ‘Do you find from a preponderance of the evidence that on the occasion in question Robert Wilkerson failed to keep such a lookout for his own safety as a person of ordinary prudence, in the exercise of ordinary care, would have kept under the same or similar circumstances?’ Answer ‘yes.’
Lady and Gentlemen of the jury, is that the answer of each of you to that question which the court asked of you (the jury panel responded to the Court’s inquiry) ? Let the record show that they each answered affirmatively.
No. 46:
‘Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of his injuries, if any?’ Answer ‘Yes’.
Members of the jury, is the answer ‘yes’ the answer of each of you to that question? (Affirmative answers.) That is the answer of each of you (the jury panel responded to the Court’s inquiry) ? Let the record show that they each affirmatively answered ‘yes’.
Do any of you gentlemen—
MR. RICE: We take exception to the polling of the jury by the court.
THE COURT: Do you wish the members of the jury polled individually?
MR. RICE: That is what I requested the court to do.
THE COURT: You said poll the jury. The usual and customary way to poll the jury is to read the answer. There was no prior request made that each juror be polled individually, and if you have so requested the court will do it.
MR. RICE: I have already made my request and I have my exception. That is all right with me.
THE COURT: Do you request the court to poll each juror individually?
MR. RICE: I have already made my request, if the court please.
THE COURT: The court has done it in the usual and customary manner.
MR. RICE: Just note my exception.”

It is seen that the jury was not polled in the manner prescribed by Rule 294, supra, in that each juror was not interrogated individually. However, before this error may be made the basis of reversing the trial court’s judgment, we must be satisfied that the error complained of “was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, * * Rule 434, T.R.C.P.; Dennis v. Hulse, 362 S.W.2d 308 (Tex.1962); Walker v. Texas Employers Ins. Ass’n., 155 Tex. 617, 291 S.W.2d 298 (1956).

We cannot say from an examination of this record that the error in not calling the name of each juror separately and asking him if it is his verdict, was harmful under this test. It is seen that each juror in open court, on three separate occasions, acknowledged to the trial court that the answers in the verdict were his answers. The purpose of the poll is to test the unanimity of the jury verdict, and to ascertain with certainty that each juror concurs in the verdict as announced and assents thereto at the time of the polling. See State v. Finch, Tex.Civ.App., 349 S.W.2d 780, no hist.; Wheeler v. Oxford, Tex.Civ.App., 321 S.W.2d 188, no hist.; Chance v. Scarbrough, Tex.Civ.App., 303 S.W.2d 832, wr. ref. n. r. e.

The uncontradicted record shows that each juror in open court concurred with the verdict. The trial court’s failure to interrogate each individually was not such a failure as to deny appellant his constitutional right of trial by jury. Cf. Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965). Nor can it be said that the manner in which the court ascertained that each juror concurred in the verdict was so highly prejudicial as to deprive appellant of a fair trial. Cf. Texas Emp. Ins. Ass’n. v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958). We conclude that the purpose of the poll was substantially accomplished and reversible error is not shown by the court’s failure to interrogate each juror individually.

In any event appellant waived his right to complain of this error by his reply to the court’s offer to poll the jurors individually. Appellant requested at the outset that the jurors be polled individually, and the rule specifically prescribes this manner of taking a poll; however, the record reflects that the court apparently did not understand the original request and proceeded to poll the jurors in “his usual and customary manner.” The record clearly shows the court’s willingness to supplement this poll by a poll of the jurors individually, but appellant advised that he preferred his exception. This violated the guiding purpose of the rules of civil procedure as set forth in Rule 1.

In Lewis v. Texas Emp. Ins. Ass’n., 151 Tex. 95, 246 S.W.2d 599 (1952), the Supreme Court said: “Ordinarily a procedural error must be preserved by timely action by the party complaining. This is true because a trial judge can usually correct his procedural errors if they are brought to his attention. * * * The policy underlying our rules is that for most procedural errors to be considered on appeal the defendant must by timely objection give the trial judge a chance to correct his errors.” See also State v. Wilemon, 393 S.W.2d 816 (Tex.1965); Thomasson v. Davis, Tex.Civ.App., 74 S.W.2d 557, error dismissed.

The judgment is affirmed.

CADENA, Justice

(concurring).

I would affirm the judgment of the trial court solely on the ground that appellant waived his right to complain of the improper manner in which the jury was polled.

      . “Rule 294. Polling the Jury
      Either party shall have the right to have the jury polled. When a jury is polled, this is done by reading once to the jury collectively the general verdict, or the special issues and answers thereto consecutively, and then calling the name of each juror separately and asking him if it is his verdict. If any juror answer in the negative, the jury shall be retired for further deliberation.”


text:
    B & B VENDING COMPANY et al., Appellants, v. The CITY OF EL PASO et al., Appellees.
    No. 14513.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 5, 1966.
    Rehearing Denied Nov. 2, 1966.

      Brewster, Hoy & Cole, El Paso, for appellants.
    Travis White, City Atty., Daniel Gar-bera, Asst. City Atty., Wade Adkins, El Paso, for appellees.
   BARROW, Justice.

Appellants, B & B Vending Company and six other owners and/or operators of billiard tables in the City of El Paso, brought this suit to enjoin appellees, the City of El Paso and its Councilmen, from enforcing Ordinance No. 2976 (Sec. 14-72.1-17 of the City Code). The trial court refused to grant either a temporary or permanent injunction. This appeal is from a take-nothing judgment which was entered following a non-jury hearing on the application for a permanent injunction. Any error in not granting the temporary injunction is moot.

It was illegal to operate or maintain a pool hall within this State prior to the passage of an act by the 58th Legislature. Acts 1963, 58th Leg., Ch. 65, p. 114, expressly repealed Art. 653, Penal Code and Art. 4668, Vernon’s Ann.Civ.St. This Act, which is codified as Art. 19.01(10), Taxation-General, V.A.T.S., permits cities and towns to levy a tax and to ban, prohibit, regulate, supervise, control or license anyone owning or operating a billiard table. Pursuant to this authority, Ordinance 2976 was enacted by the City of El Paso, a home rule city.

Appellants sought this injunction upon; three basic contentions which they now assert as the basis of this appeal: 1. The ordinance was never validly enacted in that this Act did not become effective until August 23, 1963, whereas the ordinance was passed on August 22, 1963. Further, the El Paso City Charter requires every ordinance to be read at two meetings prior to its adoption, and although this ordinance was first proposed at the August 15', 1963, meeting of the Council, the ordinance as finally adopted differed so substantially as to be a new ordinance. 2. The ordinance is void because, although denominated a licensing act, it is in fact a revenue act, and in any event it is discriminatory and deprives appellants of rights and property without due process. 3. The City has-, no statutory authority to regulate coin-operated billiard tables.

This Act of the 58th Legislature became effective on August 23, 1963, which is 90 days after adjournment. The trial court found that Ordinance 2976, although adopted at the August 22, 1963, Council meeting, did not become operative until it was published on August 26, 1963. Sec. 181 of the El Paso City Charter requires all penal ordinances to be published in the designated official newspaper. This ordinance, being a penal ordinance, did not become operative until it was published. Texas Traction Co. v. Scoggins, Tex.Civ. App., 175 S.W. 1128, writ refused. The testimony of the City Clerk, which was admitted without objection, established that this ordinance was published on August 26, 1963. It thereby became operative after the City was given authority to license and regulate billiard tables.

After the Legislature passed this Act, the City Councilmen were urged to permit billiard tables in El Paso. Considerable study was made by them as to the proper action to be taken by the City to license and regulate billiard halls. On August 15, 1963, a lengthy hearing was had and Ordinance 2976 was passed on first reading. One of the principal contentions urged at this hearing was that the City should recognize the distinction between large billiard tables, as customarily used in regular pool halls, and smaller coin-operated tables, usually found in bars and lounges. As a result of this discussion, the ordinance was amended, and as amended was passed on August 22, 1963. The basic difference between the ordinance passed on first reading and as amended is that the licenses are divided into three classes, based upon the type of table used: Class "A” permits a noncoin-operated table, intended for use where billiard playing is one of the main attractions; Class “B”, a coin-operated table, with or without pockets; and Class “C”, a coin-operated table without pockets, the top of which does not exceed 60" x 48". The original ordinance did not distinguish between the types of billiard tables, and the fee for a license to operate one to three tables was $400.00 a year, plus $75.00 for each additional table. The amended ordinance provides for a fee of $250.00 for a Class “A” license, $75.00 for a Class “B” license, and $50.00 for a Class “C” license. Only one table may be exhibited on the same premises under either a Class “B” or “C” license.

The City Charter provides that no ordinance shall be finally adopted until it has been read in open meeting of the Council at two regular meetings. There is no requirement that the ordinance must be read twice “in final form.” Appellants urge, however, that the amendments were so extensive as to make the final draft a new ordinance and therefore the reading prior to passage on August 22 was the first reading of same.

It is seen that both drafts of this ordinance dealt with the same purpose, the licensing and regulation of billiard tables. One of the primary objectives to be served by requiring the ordinance to be read at two meetings is to give interested persons an opportunity for discussion and to suggest needed changes. The City legislative body necessarily has the power to make changes as in its discretion will best serve the purpose of the ordinance. City of Corpus Christi v. Jones, Tex.Civ.App., 144 S.W.2d 388, wr. dism., judgm. correct; McQuillan, Municipal Corporations, 3d Ed., § 16.87. By way of analogy, although Art. 3, § 32, of the Texas Constitution requires in part that no bill shall have the force of law until it has been read on three several days in each House, it is fundamental that same may be amended after its first reading, providing its original purpose is not changed. Art. 3, § 30, Vernon’s Ann.St.Tex. Const. The amendments did not defeat the original purpose and were not so substantial as to become a new ordinance.

Appellants urge that although the ordinance proposes to license and regulate billiard halls, in fact, it is a revenue measure, in that the City is not required to do anything to enforce the ordinance and the fee charged is out of proportion to the cost of regulation. The law presumes that the fee is reasonable. It is our opinion that appellants failed to meet their burden of showing that the anticipated revenue has no reasonable relationship to the probable cost of enforcement of the ordinance. City of Fort Worth v. Gulf Refining Co., 125 Tex. 512, 83 S.W.2d 610 (Tex.1935).

Each of appellants testified that he had not noticed any increase in police activity in the bars and lounges after the coin-operated tables were installed other than as required to check and see that the tables were licensed. Neither the City nor the County had increased its police force. On the other hand, the evidence is uncontradicted that the City Council undertook to set the fees in an amount bearing a reasonable relationship to the cost of enforcement. These amounts were based upon computations furnished by the Police Department and were not contradicted by any evidence. Appellants did not establish that the primary purpose of this ordinance was for raising revenue and not regulation.

There is no showing of discrimination against appellants by the fact that the ordinance provides for three classes of licenses with different regulations for each class. There is no evidence that such classification is not reasonable, and in fact, under the evidence, appellants urged that a distinction be drawn between “regular size” billiard tables and “small” coin-operated tables. An ordinance may establish a classification so long as the classification is reasonable and applies equally to all persons who fall within the class. Producers Ass’n. of San Antonio v. City of San Antonio, Tex.Civ.App., 326 S.W.2d 222, wr. ref. n.r.e.

It is our opinion that the City did not exceed its statutory authority in attempting by this ordinance to control the ownership, operation, use and location of billiard halls, including setting up standards for owners and employees of such establishments and their maximum hours of operation. The power to regulate and supervise necessarily includes the power to set reasonable standards. None of the standards required by this ordinance are shown to be unreasonable or discriminatory. A requirement that the applicant be of “good moral character” is not so indefinite as to be unconstitutional. Jordan v. State Board of Insurance, 160 Tex. 506, 334 S.W.2d 278 (Tex.1960). The fact that the Chief of Police is not required to be a lawyer does not disqualify him from determining if the applicant and the proposed location meet the requirements set forth in the ordinance. His action is subject to review by the City Council and the right to review necessarily includes the right to reverse such action. In any event, none of the appellants have been denied a license and none of said licenses have been revoked or suspended. They have not shown that this Act is unconstitutional by taking their rights or property without due process.

Appellants are primarily interested in Class “B” and Class “C” licenses, in that only one of them owns any interest in a noncoin-operated table. They assert that the City has no authority to regulate this type of table under the Act in question. It is seen that although the State occupation tax provided by this Act is limited to “non-coin-operated tables,” cities and towns are given the authority to license, etc., any person owning or operating “a billiard table.” Sec. (a) of this Act defines a billiard table without reference to whether same is coin operated or not. It is of no significance that an occupation tax is levied on same under authority given by Art. 13.01, Taxation-General, V.A.T.S., as a coin-operated machine.

The trial court properly held that Ordinance No. 2976, as enacted by the City of El Paso is valid, and therefore did not err in refusing to enjoin its enforcement. The judgment is affirmed.

      . “(10) Billiard Tables. Prom every person owning and operating for profit and every firm, association of persons, corporations and every other organization, save and except religious, charitable or educational organizations, authorized under the laws of the State of Texas, owning and operating every billiard table, by whatever name called, and where the player thereon does not or is not required to make a coin deposit causing an electrical connection of any nature or kind before such game may be actually commenced, there shall be collected an annual tax of Five Dollars ($5) for each billiard table.
      (a) Billiard Table Defined. A billiard table is defined as any table surrounded by a ledge or cushion with or without pockets upon which balls are impelled by a stick or cue.
      (b) Cities and Towns May Levy Tax and License Owners and Operators. All cities and towns, whether incorporated under general or special law, shall have the power and authority to levy and collect a tax, equal to one half (½) of the amount herein levied, and may ban, prohibit, regulate, supervise, control or license, any person, firm, association of persons, or corporation, owning or operating a billiard table within the incorporated limits of such city or town, and to fix penalties for the violation thereof. Added Acts 1963, 58th Leg., p. 114, eh. 65, § 1.”


author: CLAUDE WILLIAMS, Justice.

text:
    Marguerite Lovelett NOWELL, Appellant, v. Ames NOWELL, Appellee.
    No. 16800.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1966.
    Rehearing Denied Nov. 18, 1966.

      Burford, Ryburn & Ford and John L. Estes and Robert A. Wooldridge, Dallas, for appellant.
    Harris, Anderson, Henley, Shields & Rhodes and Charles O. Shields, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Divorce action. Ames Nowell instituted this action in the Domestic Relations Court of Dallas County, Texas against Marguerite Lovelett Nowell in which he sought a divorce and adjudication of property rights. Defendant wife, a resident of the State of Connecticut, was served with citation in that state. Pursuant to Rule 120a, Vernon’s Texas Rules of Civil Procedure, defendant filed her motion challenging the jurisdiction of the Texas court on the grounds (a) that she was not a resident of the State of Texas, (b) that the plaintiff was not a bona fide resident of the State of Texas, (c) that there was a prior suit pending in the State of Connecticut, being a suit for legal separation and equitable support involving the same parties and same subject matter, and (d) that at the time of attempting service upon defendant, plaintiff was under an injunction issued in the Connecticut suit prohibiting him from proceeding with the Texas action. Defendant also filed her plea in abatement asserting the same grounds as were contained in her motion challenging jurisdiction and asking the court to grant comity to Connecticut and the injunctions issued and to dismiss or abate the Texas action. The trial court overruled both pleas and the case proceeded to trial before a court and a jury. Following jury verdict, judgment was entered granting plaintiff husband a divorce from defendant wife and also ordering disposition of certain property of the parties. This appeal follows.

FACTS

Ames Nowell and Marguerite Lovelett were married April 6, 1957. In November of 1962 Marguerite Nowell filed suit in the Superior Court of Fairfield County, Connecticut against Ames Nowell seeking a divorce. Ames was served personally in Connecticut. Shortly thereafter Marguerite amended her suit and changed the cause of action from that of divorce to one seeking legal separation and equitable support under the provisions of Section 46-29 of the Connecticut General Statutes, Revision of 1955.

Ames Nowell appeared in person in the Connecticut suit and that court entered an order requiring the husband to pay alimony to the wife in the sum of $1,650 per month. The merits of the Connecticut action had been submitted by the Connecticut court judge to a referee who conducted hearings thereon beginning September 29, 1964.

Ames Nowell left the State of Connecticut and eventually came to Texas and filed an action in the Juvenile Court of Dallas County, Texas seeking an annulment of the marriage. On March 24, 1965 the Connecticut court entered a temporary injunction order forbidding Ames from “either directly or indirectly, personally or by his agents or attorneys from prosecuting, pursuing, proceeding or in any manner whatsoever from taking action in or with regard to a certain lawsuit in the Juvenile Court of Dallas, Dallas County, Texas, * * ]s[0 further action was taken on the annulment suit in Texas.

On March 15, 1965 Ames Nowell filed the instant suit for divorce. After service was accomplished in Connecticut Ames Nowell filed an application for, and, the Domestic Relations Court of Dallas County, Texas issued on September 7, 1965, an order temporarily restraining Marguerite Nowell from taking any action in her Connecticut suit which might interfere with the divorce suit pending in Texas. Marguerite Nowell was served with notice of said restraining order in the forenoon of September 9, 1965. In the afternoon of the same date, September 9, 1965, Marguerite Nowell obtained a temporary injunction in the Connecticut court against Ames Nowell forbidding him from taking any further action in the divorce case in Texas, or in any other state, pending final disposition of the Connecticut case.

Prior to these proceedings, and on August 24, 1965, the referee had returned to the Connecticut court a report of his findings wherein it was found that Marguerite Nowell was entitled to equitable support.

On September 16, 1965 Marguerite Nowell filed her sworn motion in the Texas suit challenging the jurisdiction of the court over her person in temporary injunction proceedings and in which she specifically pleaded all relevant facts relating to the pending Connecticut suit and the temporary restraining order issued against Ames Nowell in Connecticut. This motion was denied.

On September 24, 1965 Marguerite Nowell filed her sworn motion pursuant to Rule 120a, T.R.C.P., challenging the jurisdiction of the Texas court over her person and setting forth the material facts relating to the prior suit pending in Connecticut and the injunctions issued therein. This motion was heard by the Texas court on October 22, 1965 and was overruled.

Marguerite Nowell filed a plea in abatement in the Texas action on October 25, 1965, and amended the same on December 8, 1965, in which she set forth specifically and in detail all of the material facts relating to the prior suit pending in Connecticut and the injunction issued against Ames Nowell therein. This plea was heard on December 9,1965 and overruled.

At the time the Texas court heard the plea to the jurisdiction and pleas in abatement the report of the referee in the Connecticut action had not been acted upon by the judge of the Connecticut court and the Connecticut action was still pending.

The case proceeded to trial in the Texas court on December 15, 1965 and after hearing voluminous testimony the trial court submitted the case to the jury on special issues, all of which were answered favorably to Ames Nowell. Based upon such verdict the trial court entered judgment for divorce in favor of Ames Nowell and also ordered certain disposition of property of the parties.

OPINION

By her first six points of error appellant contends that the trial court erred in overruling her plea to the jurisdiction and also her plea in abatement because at the time of hearing of said motion and plea there was pending in the State of Connecticut a suit previously filed and involving the same parties and subject matter, as well as anti-suit injunctions issued in the Connecticut court, and that under the doctrine of comity the Texas court should have taken cognizance of the Connecticut action and injunctions and refused to entertain jurisdiction of the controversy.

By these points appellant does not attempt to assert the existence of a prior final judgment of a sister state and thereby invoke the protection of the Full Faith and Credit provision of our Federal Constitution. Instead, she seeks to apply the familiar doctrine of comity.

Comity has frequently been defined as the recognition that one sovereignty .allows within its territory to the legislative, executive, or judicial act of another sovereignty, having due regard to the rights of its own citizens. The rationale of the doctrine is founded on mutual interest, conscience and moral necessity to do justice in order that justice may be done in return. 12 Tex.Jur.2d Conflict of Laws, § 2, p. 304. Comity is not a matter of right. The doctrine does not stand boldly clad in the armor of unyielding obedience but is rather arrayed in vestments of persuasion. Being voluntary and not obligatory, the application of comity vests in the sound discretion of the tribunal of the forum.

The prevailing rule in Texas has been aptly stated in Mills v. Howard, 228 S.W.2d 906, Civ.App., as follows:

“While, as we have said, the pendency of a prior suit involving the same parties and subject matter strongly urges the court of the local forum to stay the proceedings pending determination of the prior suit, yet the rule is not mandatory upon the court nor is it a matter of right to the litigant. It is, after all, a matter resting within the sound discretion of the court.”

A resolution of the question of abuse of discretion in such a case necessarily demands a close inspection of the two pending actions. To secure the abatement of a subsequent suit because of the pendency of a prior one it is, as a general rule, necessary that the two suits involved in the same cause of action, concern the same subject matter, involve the same issues, and seek the same relief. 1 Tex.Jur.2d, § 34, pp. 56-57. “One test to determine whether causes of action are identical is to ascertain whether the parties could obtain all the relief in the prior suit that they would be entitled to in the subsequent action.” 1 Tex.Jur.2d, § 35, p. 59. Appellant, while candidly conceding that the action maintained by her in Connecticut is not a divorce action but one for separate maintenance under the Connecticut statute, contends that the parties are identical and that there is such a similarity of issues as to call into play the doctrine of comity. We cannot agree with appellant in this regard. The action pending and relief sought in the Connecticut -court were not the same as that in the Texas court.

A very similar situation was presented to the El Paso Court of Civil Appeals in Perusse v. Perusse, 402 S.W.2d 931 (1966). In that case the parties had been married in New York and the husband moved to Texas and filed an action for divorce in the Texas court. The wife instituted a divorce proceeding in the circuit court in Maryland wherein she sought a divorce “a mensa et thoro” pursuant to the provisions of Art. 16, Sec. 25 of the Annotated Code of Maryland. The wife filed her plea in abatement in the Texas action seeking to have the Texas divorce proceeding abated because of the pendency of the Maryland proceeding. The plea in abatement was sustained by the District Court and the Court of Civil Appeals, after reviewing the authorities, reversed and rendered the judgment thereby holding that the doctrine of cpmity should not have been applied under the peculiar facts and circumstances of that case. Since the situation is so similar we quote from the opinion which we feel has application to this action:

“The record shows that at the time appellant filed his amended petition, which complied then with the residential requirements for a divorce suit in Texas, the appellee had filed for a divorce ‘a mensa et thoro’ in Maryland which, according to the references in the record here, is actually, viewed from a Texas standpoint, a legal separation and not an absolute divorce. For example, neither party can re-marry, and for other purposes, such as adultery, both parties are considered to be still married. Therefore, the plea in abatement filed attempted to abate a suit in Texas which was for a complete and final divorce, on the basis that a suit for legal separation had been filed in Maryland. It has long been held that a cause may be abated only where both actions or causes of action are the same and ask for the same relief. 1 C.J.S. Abatement and Revival § 40; 1 Tex.Jur.2d, Abatement and Revival, § 34; Payton v. Hurst Eye, Ear, Nose & Throat Hosp. & Clinic (Tex.Civ.App.), 318 S.W.2d 726 (reh.den.); Hatten v. City of Houston (Tex.Civ.App.), 373 S.W.2d 525 (err. ref., n. r. e.). A full and complete divorce comparable to that sought by appellant in Texas is described by the Maryland laws as a divorce ‘a vinculo matrimonii’. It is clear, therefore, that at the time the court here heard the matters involved, and issued its two orders, that the appellee in the Maryland court had not filed or asked for anything more than a 'bed and board’ legal separation. This, in our opinion, would not suffice to abate the complete divorce decree asked for by appellant. This matter is well set out in 31 A.L.R. 2d 442, which states the following at page 447:
“ ‘On the other hand, the pendency of action between the same parties for separation on the ground of abandonment and nonsupport was held not to bar an action for absolute divorce in Hall v. Hall (1912) 150 AppDiv 688, 135 NYS 741. The decision was rested on the ground, among others, that “the two actions are brought on different grounds for different relief,” the court relying upon Conrad v. Conrad (1908) 124 AppDiv 780, 109 NYS 387, where it was held that it was not proper to unite in the same complaint a cause of action for absolute divorce and one for separation on the ground of abandonment.
“ 'That an action for an absolute and one for a limited divorce are based on different causes of action was also intimated in Cook v. Cook (1912) 159 NC 46, 74 SE 639, 40 LRA NS 83, Ann Cas 1914A 1137, infra, § 4, under heading “Where defendant in first action has not asked for affirmative relief.” ’
“Therefore, it seems clear to us, and we so hold, that at the time the court signed its final order abating the suit in Texas (the date of which was December 10, 1965), there was no suit filed anywhere legally comparable to the one pending in El Paso County.”

Appellee places great reliance upon the opinion of the Court of Civil Appeals in Evans v. Evans, 186 S.W.2d 277 but a close examination of that case clearly illuminates the distinguishing features which render the decision inapplicable here. In that case the husband instituted an action for divorce in the State of Ohio and then moved to Texas where he instituted another suit for divorce, seeking the same relief. Moreover, in the Evans case plaintiff left his property in Ohio and had none in Texas at the time he filed the second action. The Texas court held that Evans, having chosen the forum, should have continued to proceed therein to final judgment rather than seek relief in the Texas action. In this suit appellee did not institute the Connecticut action. He came to Texas, as he had a perfect right to do, bringing with him his property, established a residence here and proceeded to file a suit for a divorce pursuant to Texas law.

Appellant advances the argument that since the appellee husband violated the anti-suit injunctions issued in the Connecticut court that he may not now be protected by Texas law. As stated in the recitation of the facts above, the first anti-suit injunction issued in the Connecticut court was against appellee proceeding any further with the suit he had filed in Texas in the Juvenile Court seeking an annulment. Ap-pellee did not violate this injunction but proceeded no further with the prosecution of the annulment action. The second anti-suit injunction issued in the Connecticut court was granted subsequent to the issuance and service of the Texas anti-suit injunction restraining appellant from proceeding further with interference of the prosecution of the Texas divorce action. Moreover, the record discloses that the Connecticut injunction was issued ex parte with no notice being served upon appellee. Under these circumstances we see no merit in appellant’s contention relating to this phase of the case. Moreover, we have heretofore pointed out the dissimilarity of the two actions pending in Connecticut and Texas.

It has often been held to be improper to enjoin a bona fide resident of another state from prosecuting an action for divorce in the state of his residence. Stultz v. Stultz, 15 N.J. 315, 104 A.2d 656; Brown v. Brown, 24 N.J.Super. 198, 93 A.2d 616; Usen v. Usen, 136 Me. 480, 13 A.2d 738, 128 A.L.R. 1449; Garvin v. Garvin, 302 N.Y. 96, 96 N.E.2d 721; Kleinschmidt v. Kleinschmidt, 343 Ill.App. 539, 99 N.E.2d 623; 27A C.J.S., Divorce, § 103, p. 358; 128 A.L.R. 1480.

We are convinced, and so hold, that the Texas court did not abuse its discretion in denying appellant her plea to the jurisdiction and plea in abatement. Simply stated, the Connecticut court did not have jurisdiction of these parties in any action for divorce. Appellee had ceased to be a resident of Connecticut for more than a year before he moved to Texas and became a resident of this state. That he had a right to leave Connecticut and move to any state of his choice cannot be denied. Appellee had every right in law to institute and prosecute an action for divorce in accordance with the laws of his new domicile. Appellant’s points 1 through 6 inclusive are overruled.

By her points of error 7 through 13 appellant contends that there was no evidence, or that the evidence was wholly insufficient, to establish the necessary residential requirements of appellee in Texas so as to give the trial court jurisdiction over either appellant or appellee. She also contends that the answer of the jury to Special Issue No. 1 to the effect that appellee had established residence in Texas was not supported by the evidence or was contrary to the great weight and preponderance thereof.

In support of these points appellant, points to the fact that plaintiff’s original petition was filed on March 15, 1965 and that in such petition appellee had alleged that he was a resident of the State of Texas for twelve months and the City of Dallas six months immediately preceding the institution of the suit. Appellant contends that the testimony shows that plaintiff came to Dallas on February 12, 1964 and remained here for two and a half days before returning to New York. He returned to Dallas in March 1964 and left again in April and did not return until May. He returned to New York in June and did not return to Dallas until March 1965. Appellant contends that appellee spent approximately ten months in New York City during the year 1964 and in New York City for three months in 1965, during which time he stayed in the George Washington Hotel.

As opposed to appellant’s contention, ap-pellee contends, and the record demonstrates, that he moved to Texas on February 12, 1964 and rented an apartment, executing a lease for one year. Thereafter he instituted proceedings to transfer a trust of which he was trustee from Boston, Massachusetts to the First National Bank in Dallas. Appellant testified, and such testimony was corroborated by other witnesses, that when he came to Texas he intended to make Texas his permanent residence; that he actually moved his property here, opened a bank account here; qualified to vote here, joined organizations here and did many things demonstrating his bona fide intent to reside in Dallas. He testified that he had reasons for temporary absences from the state, one because of litigation pending against him in Connecticut, it was necessary for him to spend large amounts of time in the vicinity of New York City conferring with attorneys, preparing for court hearings, testifying at hearings, etc.; and secondly, it was necessary that he be in New York City on a number of occasions to receive medical treatment and examinations in connection with a personal injury claim against the City of New York. Moreover, he testified to necessary trips to New York in connection with his business of writing, teaching and publishing.

Though he filed his original petition for divorce on March 15, 1965 the same was amended on December 6, 1965 and the residential issue, being Special Issue No. 1, was submitted to the jury as to whether or not appellant had been a bona fide inhabitant of the State of Texas for a period of twelve months immediately preceding December 6, 1965. To this the jury answered “Yes”.

The trial court correctly limited the special issue regarding residence to the period of one year immediately preceding December 6, 1965, the date of the filing of appellee’s amended petition for divorce. Ingram v. Ingram, Tex.Civ.App., 380 S.W.2d 666; Myers v. Myers, Tex.Civ.App., 210 S.W.2d 832; Coleman v. Coleman, Tex.Civ.App., 20 S.W.2d 813; Bateman v. Batman, Tex.Civ.App., 188 S.W.2d 866; Whitsett et al. v. Whitsett, Tex.Civ.App., 201 S.W.2d 114; 20 Tex.Jur.2d, Divorce and Separation, § 62, p. 407.

The question presented is not one of jurisdiction but relates to the statutory qualifications of a litigant to maintain a suit for divorce. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198.

In determining the sufficiency of the evidence to support the jury’s affirmative answer to Special Issue No. 1 relating to the residential requirement we have carefully considered all of the evidence adduced by both appellant and ap-pellee. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Having done so, we find that the same is conflicting but such conflict has been resolved by jury verdict. We cannot say that the answer of the jury is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Accordingly, we cannot disturb the jury verdict nor the action of the trial court in rendering judgment thereon. Appellant’s points 7 through 13 are overruled.

Finding no merit in any of appellant’s points of error the same are overruled and the judgment of the trial court is affirmed.

Affirmed.

       “In any case in which a divorce might be decreed, the superior court, on petition of the party who would be entitled to a divorce, may decree a legal separation of the parties, which separation shall have in all respects the effect of a divorce, except that the parties shall not be free to marry any third person and except as hereinafter provided. Upon such petition the procedure shall be the same as in actions for divorce, and the court shall have the same power in all matters relating to temporary and permanent orders for alimony, custody and support of children, and to allowances, as in cases of divorce. The parties to such action may at any time resume marital relations, upon filing with the clerk of the superior court for the county in which the separation was decreed their written declaration of such resumption, signed, acknowledged and witnessed. Such declaration shall be entered upon the docket, under the entries relating to such petition.”

        Section 46-30 provides:
      “At any time after the entry of a decree of legal separation, either party may petition the superior court for the county where such decree was entered for a decree finally dissolving and terminating the marriage and, if the court finds that the parties have not resumed marital re-latieras since the entry of the decree of legal separation, it may enter a decree finally dissolving and terminating the marriage and may affirm or modify any existing orders and may enter any additional orders relating to alimony, custody and support of children and allowances as are usual in divorce cases.”


author: CADENA, Justice.

text:
    The SOUTHLAND CORPORATION OF TEXAS, Appellant, v. L. G. DOSS et ux., Appellees.
    No. 14515.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1966.
    Stubbeman, McRae, Sealy & Laughlin, Charles Tighe, John Harrell Feldt, Midland, for appellant.
    Warren Burnett, Bob Hoblit, Odessa, for appellees.
   CADENA, Justice.

This is an appeal by the Southland Corporation of Texas, defendant below, from an order of the District Court of Ector County overruling defendant’s plea of privilege to be sued in Dallas County, its domiciliary county.

Plaintiffs’ petition alleged that, as the result of the dangerous condition of the premises of defendant’s store in Odessa, Ector County, Mrs. Gerre G. Doss, tripped and fell, sustaining physical injury. Plaintiffs seek to maintain venue in Ector County under Subd. 9a, Article 1995, Vernon’s Ann.Civ.St., which provides that a suit based on negligence may be brought in the county where the negligence occurred. Under the express provisions of this subdivision, in order to sustain venue in Ector County, the burden was on plaintiffs to establish, by a preponderance of the evidence, that defendant, or its servants or agents, were guilty of negligent conduct in Ector County which was the proximate cause of the injury to Mrs. Doss.

Mrs. Doss testified that, while shopping in defendant’s store, she fell as the result of stepping on a can which was on the floor of one of the aisles. She did not know how long the can had been on the floor. Mr. Doss, over defendant’s objection, was allowed to testify to the effect that, some two or three days after the accident, the manager of defendant’s store stated that another emlpoyee, who had been stocking canned goods shortly before Mrs. Doss fell, had left the can on the floor. There is no other testimony concerning the manner in which the can came to be on the floor.

It is true that the statements of an agent, made within the scope of his authority, are admissible in evidence against the principal. Here there is no evidence as to the authority of the manager, nor is there any showing that the statement was made in connection with an authorized act, or that it was closely enough connected with the accident to be admissible as a spontaneous admission. Since the statement by the manager was made two or three days after the accident, it amounted to a mere narration of past facts and was not admissible against defendant. Southwestern Telegraph & Telephone Co., v. Gotcher, 93 Tex. 114, 53 S.W. 686 (1899); Edwards v. Montgomery Ward & Co., Tex.Civ.App., 270 S.W.2d 432, wr. ref., n. r. e.

If the evidence of Mr. Doss, which was erroneously admitted, is disregarded, there is no evidence of any act or omission on the part of defendant or any of its employees which might be classified as negligence. Plaintiffs, therefore, failed to establish the venue facts necessary to permit them to maintain this action in Ector County.

The judgment of the trial court is reversed and the cause js remanded to the trial court with instructions to transfer the cause to Dallas County, in keeping with the provisions of Rule 89, Texas Rules of Civil Procedure.