author: CHAPMAN, Justice.

text:
    In re Johnny HERRERA, a minor.
    No. 7600.
    Court of Civil Appeals of Texas. Amarillo.
    April 4, 1966.
    Rehearing Denied May 2, 1966.

      John J. Herrera and Philip M. Shafer, Houston, for appellant.
    Stovall & Stovall, Plainview, for appel-lee.
   CHAPMAN, Justice.

This litigation was initiated in the court of original jurisdiction by a writ of habeas corpus caused to be issued by Anita B. Herrera to secure possession of her seven-year old son, Johnny Herrera, from the child’s paternal grandparents, Victor Herrera and his wife, Margarita Herrera.

All emphases and parenthetical statements hereinafter made are ours.

Though not divorced, Anita had not lived with the child’s father, Jessee Herrera, for a number of years. At least one reason is that Jessee had been in the penitentiary a number of times. The record is not clear as to whether it was three or four sentences to the state penal institution. Another very logical reason they had not lived together during part of the time is that the record shows Jessee had indulged in an “affair” with another woman from whom he had sired at least one child shown in the record. Jessee and Anita were also parents of two daughters, one older and one younger than Johnny.

As in most cases, the testimony is conflicting as to the reason Johnny was in possession of his paternal grandparents. Anita testified she and Jessee had an agreement that while the latter was in the penitentiary Johnny would remain with his paternal grandparents. “He told me to make out with my struggle as best I could with the two girls and to leave the boy with his grandparents.”

“Q. Now, did he say that with the idea of your giving him to the grandparents or for them just to help you with the expenses, to make it less expense on you ?
“A. It was with the idea that they help me somewhat with the expenses of the boy because he was unable to do so.
“Q. Was there ever any agreement between you and Jessee that his parents would take the child for adoption and keep him forever?
“A. No, sir.”

The grandmother testified Jessee and Anita left Johnny with her when he was two months of age and gave her the child to keep.

Anita lived with her parents at Wharton during part of the time Jessee was in the penitentiary and while there filed a divorce suit against him in which she asked for the custody of all three of the children. The suit was dismissed on February 19, 1965, for want of prosecution. Letters in the record from Jessee while he was in the penitentiary contained great promises of how they would get their children back together when he was released.

Jessee was seriously injured in an industrial accident on February 22, 1965, and died three days later. The Industrial Accident Board awarded $6,000 to Anita and $2,000 each to their three children. They denied claims of an alleged common-law widow and the minor child. We have related these facts only to give the background information preceding the issuance of the writ of habeas corpus.

After a hearing before the court the trial judge denied Mrs. Herrera (Anita) the custody of her son and awarded his custody to the respondents, Victor and Margarita Herrera. From that judgment appeal is properly perfected to this court.

At the very threshold we are met with what appears to us to be a paradox in the findings of the trial court in his judgment and the actual judgment rendered. The findings are that “ * * * it is the opinion of the court that the respondents, Victor Herrera and his wife, Margarita Herrera, (the grandparents of Johnny) are fit and proper persons to be awarded the custody of the minor, Johnny Herrera; that the petitioner Anita B. Herrera (the parent), is also a fit and proper person to be awarded the custody of the minor, Johnny Herrera; and based upon the evidence produced in this cause and the circumstances of this particular case * * * it is for the best interest and welfare of the minor, Johnny Herrera, that his custody be placed with the respondents, Victor Herrera, and his wife, Margarita Herrera, * * ⅜ ”

Thus, a parent upon whom the law at the time of the birth of a child imposes the duty of care and protection, the performance of which the instincts of nature so readily prompts and out of whom the legal custody had never been judicially determined either by a custody hearing, adoption, or dependent and neglected child hearing, was deprived of her child in a judgment which found her to be a fit and proper person to have his custody.

The landmark case in Texas upon the question of the right of a parent to the custody of his or her child in a habeas corpus hearing as against a relative into whose care the child had been committed by the parent is State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901. The court in that case quoted as authority a statement from Weir v. Marley, 99 Mo. 484, 12 S.W. 798, 6 L.R.A. 672, as follows:

‘What is for the best interest of the infant? is the question upon which all cases turn at last, whatever may be said in the opinion about contracts; and the answer returned is that the custody of the child is by law with the father (parent), unless it appears by satisfactory evidence that the best interest of the child demand's that he (she) be deprived of that custody, and upon him who so avers devolves the burden of proof. The presumptions are against it.’ ”

The court then held that when a parent has parted with possession of his or her child and seeks to regain possession of it through the courts it becomes the duty of the court to protect the child against the evil results that follow to it from incompetent and disqualified parents.

The court then quoted with approval from the New Hampshire case of State ex rel. Herrick v. Richardson, 40 N.H. 272, 275 as follows:

“ ‘The discretion to be exercised is not an arbitrary one, but, in the absence of any positive disqualification of the father (parent) for the discharge of his (her) parental duties, he (she) has, as it seems to us, a paramount right to the custody of his (her) infant child, which no court is at liberty to disregard. And, while we are hound also to regard the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will he best promoted by continuing that guardianship which the law has provided, until it is made plainly to appear that the father (mother) is no longer worthy of the trust.’ ”

There is no holding to our knowledge by any appellate court in Texas that gives the mother any less right to her child withheld from her by third party relatives than the right given to a father under such circumstances, neither being incompetent or disqualified. For that reason, we have inserted into the quotes the parenthetical statements. Thus, the rule just quoted would apply equally as strongly for a mother as for a father.

In “Shepardizing” the Deaton case, we have discovered the cases are literally myriad from other Texas intermediate appellate courts following the rule quoted by the Supreme Court in Deaton from State ex rel. Herrick v. Richardson, supra. Just a few are the following: Hull v. Hull, Tex.Civ.App., 332 S.W.2d 758 (N.W.H.) San Antonio; Prock v. Morgan, Tex.Civ.App., 291 S.W.2d 489 (N.W.H.) San Antonio; Luman v. Luman, Tex.Civ.App., 231 S.W.2d 555 (N.W.H.) Texarkana; Fey v. Woods, Tex.Civ.App., 229 S.W.2d 923 (writ ref.) Dallas; Carter v. Cade, Tex.Civ.App., 236 S.W.2d 829 (writ ref.) Fort Worth; McRae v. Lamb, Tex.Civ.App., 233 S.W.2d 193 (N.W.H.) San Antonio; Clayton v. Kerbey, Tex.Civ.App., 226 S.W. 1117, 1118 and on motion for rehearing 1119 (writ ref.). Our court alone just since 1943 has followed the holding in Deaton wherein the Supreme Court quoted from the New Hampshire case of State ex rel. Herrick v. Richardson at least six times. Also the Commissions of Appeals Courts in their day held likewise. An example is Greenlaw v. Dilworth, 299 S.W. 875, 881.

In the last cited case the Commission of Appeals speaking through Justice Nickels said:

“It is true that the child’s welfare is the superior and comprehensive test of custody. Rice v. Rice, 21 Tex. 58; Legate v. Legate, 87 Tex. 248, 28 S.W. 281; State v. Deaton, supra; Castro v. Castellanos (Tex.Com.App.), 294 S.W. 525; Edwards v. Edwards (Tex.Com.App.), 295 S.W. 581; Cecacci v. Martelli (Tex.Civ.App.), 235 S.W. 951; Davis v. Elkins (Tex.Civ.App.), 249 S.W. 1099. But the presumptions noticed mean that in general the child’s welfare and the parent’s fitness commonly rest in the natural relation which may not be disturbed save by that rebuttal which exhibits positive disqualification of the parent. State v. Deaton, supra; Legate v. Legate, supra; Weir v. Marley, 99 Mo. 484, 12 S.W. 798, 6 L.R.A. 672; State v. Richardson, 40 N.H. 275.”

It should be noted that at least two of the Courts of Civil Appeals cases just cited were “writ refused” cases announced since the rule providing such a stamp on a Court of Civil Appeals opinion gives it the same authority as an opinion of the Supreme Court of Texas. In one of those cases, Fey v. Woods, supra, the court said:

“In DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 694, our Supreme Court held as follows: ‘The plaintiffs contend that since they were admittedly the natural parents of the child, and since the trial court found that they were suitable persons to have the custody of the child, they were, as a matter of law, entitled to its custody. The holding of this Court in the case of State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, seems to justify that contention.”

The other writ refused case cited, as having the authority of a Supreme Court opinion, is Carter v. Cade, supra. The court held:

“In the case of State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, 903, the Supreme Court reversed a judgment of a lower court and directed that the child be delivered to its mother, quoting with approval from the case of State ex rel. Herrick v. Richardson, 40 N.H. 272, 275, as follows: ‘The discretion to be exercised is not an arbitrary one, but, in the absence of any positive disqualification of the father (mother) for the proper discharge of his (her) parental duties, he (she) has, as it seems to us, a paramount right to the custody of his (her) infant child, which no court is at liberty to disregard.’ ”

The Supreme Court of Texas speaking through former Chief Justice Alexander in DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 694, held just as the quote from Fey v. Woods, stated; i. e., since the plaintiffs “* * * were admittedly the natural parents of the child, and since the trial court found that they were suitable persons to have the custody of the child, they were, as a matter of law, entitled to its custody. The holding of this Court in the case of State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, seems to justify that contention.”

We thus have the Supreme Court of Texas itself in DeWitt v. Brooks, supra, interpreting its own opinion in Deaton to hold that since the trial court found the parents were suitable persons to have the custody of their minor child, they were, as a matter of law, entitled to its custody. The court went on to hold that since the rendition of the Deaton opinion in 1900 the legislature has changed the above rule as to dependent and neglected children such as were being considered in DeWitt v. Brooks, supra, but that question is not in our case. Therefore, if the Supreme Court statement to which we have given emphasis in the preceding paragraph, the writ refused Courts of Civil Appeals cases and the Commission of Appeals case, from all of which we have previously quoted, are the rule of law to be followed in Texas, Anita Herrera was entitled by the judgment of the trial court to her child as a matter of law; this for the reason that the trial court found her to be a suitable parent to have the custody of her child, not theretofore judicially determined to be in anyone else.

We are not unmindful of Chief Justice Calvert’s opinion in Mumma v. Aguirre, Tex., 364 S.W.2d 220, in which he stated, “ * * * our courts do not normally concern themselves with the righteousness of claims to custody of children; their paramount concern is with the best interests of the children.” We do not believe such statement negates the numerous holdings of that court we have cited and quoted from above. He went on to say there are rules by which our courts seek, to some extent, to measure the best interests of young children in making awards of custody, and mentioned the presumption that the interests of a young child are best served by the awarding of its custody to its natural parents.

To have awarded the child in Mutnma to its natural parent would have required materially changed conditions and the severing of ties with half-brothers and a half-sister, whereas the custody has never been judicially determined to be out of Anita.

We are also familiar with the Texas Supreme Court statement in Ex Parte Eaton, 151 Tex. 581, 252 S.W.2d 557 wherein Justice Sharp speaking for the court said: “The court in awarding custody of a child should consider that the welfare of the child is the dominant factor in reaching a decision.” That case was a controversy between the parents for the custody of children of the marriage and does not in any sense impugn the holdings of that court previously cited herein, the writ refused cases of the Courts of Civil Appeals, and the Commission of Appeals, from which we have quoted.

We are also cognizant of the case of Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, wherein the Supreme Court of Texas speaking through Justice Garwood, said: “ * * * our courts hold * * * that in subsequent litigation between the parties over custody of the child, the parent’s right is presumptively superior, and the other party must discharge the burden of showing that the child’s best interests will be served by custody in such other party, this despite the solemnity of the agreement or the length of time it may have been acted on in good faith by the other party.” It is important to note that the court then confirmed their holding in DeWitt v. Brooks, supra, and stated that the holding therein was not at variance with the statement made in the above quoted from Justice Garwood.

Though we believe what we have said disposes of the case, we think it might be well to weigh the evidence of the contending parties, keeping in mind the presumption is that the interests of the child are best served by awarding his custody to its parent.

The grandparents to whom custody was awarded by the trial court reared four sons, none of whom advanced past the first few grades in school. Simon, who testified he would be glad to take Johnny and rear him if anything happened to the grandparents, admitted to having bootlegged beer a few years previously. Anita testified that he also sold liquor from his mother’s and father’s home when she and Jessee were living together. Simon lives in a two-room house next to his father and mother and has three children of his own. Jessee, as heretofore stated, was sentenced to the penitentiary three or four times, never made a living for his wife and legitimate children and at sometime during the time he and Anita were still legally married sired at least one illegitimate child.

There is not any evidence of earning capacity on the part of the grandmother, who was sixty-one years of age at the time of the award of custody. When the sixty-seven year old grandfather works, which is seasonal, he makes only fifty cents an hour. His only other income is a relief check from the government in the amount of $83 per month. They live in a little three-room house next to a country store called McCoy in Floyd County and their son, Victor, lives with them.

To the credit of the grandparents, the testimony from two school teachers and Mrs. Battey, a P.T.A. room mother, shows Johnny is a well-adjusted child socially and a leader in his room at school. However, the testimony shows he is in a segregated room with other Latin Americans, obviously because of the language barrier.

Now to Mrs. Herrera (Anita), the mother of the child. She lives in Houston, is twenty-seven years of age and her residence is a five-room house with bath. Her niece and the niece’s grandmother live with her. Anita and the niece work in a factory at $1.25 per hour, forty hours a week or more and both work extra at a restaurant at $5 per day. They divide the expenses of the home. The elderly lady keeps the children when they are not in school and while their mother is working. Anita’s ten-year-old daughter is in the fifth grade, speaks good English and makes good grades. She testified she wanted her child so she could exercise her rights as a mother, and indicated she would send him to school and she hoped to college. His opportunities for an education in both the liberal arts and in trades and crafts would appear to be much greater in Houston with his mother than in his present environment.

If the grandparents could not show better results in rearing their own children during the period of their lives when they would be presumed to be able to exercise discipline, we find it difficult to see how they could be expected to properly rear a grandchild in their old age.

Surely it could not be said that a proper moral environment would not be conducive to the best interest of a child. So far as this record is concerned, the greatest mistake shown against the character of Anita is her marriage to Jessee Herrera. Even with his admitted low morals she seems to have made the best of a bad situation. There was some attempt in the record to discredit her character but the testimony constituted no more than insinuations and innuendoes.

Chief Justice Calvert in Mumma suggested the benefit the child there involved would have through the association and companionship of half-brothers and a half-sister. The benefit would appear to be even more where Johnny would have the love and companionship of older and younger full sisters. Additionally, he would have the benefit of the companionship of an older sister who speaks good English, a language he obviously will need to learn if he expects to prepare himself for a better education and a better standard of living than that to which he has been accustomed and to which he has been committed through the custody award made by the trial court.

Since the binding force of the rules of law presume children’s best interests require that their custody, never judicially determined to be out of parents, should remain in them as against third parties in the absence of the parent’s disqualifications, we hold that presumption was not overcome in this case.

Accordingly, the judgment of the trial court is reversed and the custody of the minor child, Johnny Herrera, is awarded to his mother, Anita Herrera.

ON MOTION FOR REHEARING

In their motion for rehearing ap-pellees have cited five cases in support of their contention that this court erred in holding that third parties seeking the custody of a child never judicially determined to be out of a parent must overcome the rule that the parent’s right is presumptively superior, and our holding that the facts did not overcome such presumption. Each of the five cases is clearly distinguishable from ours.

The Mumma case heretofore cited involved a change of custody, which does not exist in our case and which involves different rules.

Scozzari v. Curtis, Tex.Civ.App., 398 S.W.2d 819 not only involves a change of custody but facts showing one natural grandparent (who, with his wife, was awarded custody) to be only forty-three years of age and well able financially to care for the child. In the instant case the breadwinner was sixty-seven years of age and a seasonal laborer who earns only fifty cents an hour when he works.

In Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 the grandparents had previously been awarded custody of the child and the parent was seeking a change of custody, which, as stated above, involves different rules. The grandparents there were also forty-two years of age and the trial court found upon probative evidence there had been no material change of conditions such as to warrant a change of custody. Our case does not even involve a change of custody.

In Taylor v. Jackson, Tex.Civ.App., 317 S.W.2d 550 the trial court found the grandparent and his wife were fit and proper persons to have custody of the child but that the parent seeking its custody was not a fit and proper person. As to the fitness of the parent the direct opposite was found by the trial court in the instant case.

In Spangler v. Breashears, Tex.Civ.App., 359 S.W.2d 206 the children involved were found by a jury to be dependent and neglected children and the intervening grandparents seeking custody were found to be not fit and proper persons to have custody of the children. The natural parents were not even seeking custody and had signed written consents for adoption to parties unrelated to them.

Appellees take us to task in their motion for rehearing for holding that courts of this state are bound to regard the permanent interests and welfare of the child but such interests and welfare are presumed to be best promoted by continuing that guardianship which the law has provided until it is made plainly to appear that the parent is no longer worthy of the trust. Yet, they do not seek to distinguish the long line of cases by the Texas Supreme Court since 1900 so holding. Additionally, the learned trial court resolved the question of the fitness of the parent by finding from a preponderance of the evidence that she is a fit and proper person to keep the custody of her own child, which custody had never been judicially determined to be in any other. (Emphasis added).

Accordingly, the motion for rehearing is overruled.

      . Binion v. Mathis, Tex.Civ.App., 171 S.W.2d 512 (N.W.H.); Dunn v. Dunn, Tex.Civ.App., 217 S.W.2d 124 (writ dismissed); Kershman v. Kershman, Tex.Civ.App., 248 S.W.2d 809 (writ ref. N.R.E.); Havron v. Havron, Tex.Civ.App., 301 S.W.2d 949 (N.W.H.); Moring v. Dodd, Tex.Civ.App., 380 S.W.2d 777 (writ ref. N.R.E.); Sawyer v. Bezner, Tex.Civ.App., 204 S.W.2d 19 (ref. N.R.E.L


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    Bill H. SATTERWHITE et al., Appellants, v. COMMERCIAL BANK, UNINCORPORATED OF MASON, Texas et al., Appellees.
    No. 11393.
    Court of Civil Appeals of Texas. Austin.
    April 27, 1966.
    Rehearing Denied May 18, 1966.

      Morriss, Boatwright, Lewis & Davis, Will A. Morriss, Jr., San Antonio, for appellants.
    Barkley & Cutcher, James Cutcher, Taylor, Lee & Lee, Mason, Moursund & Ferguson, Thos. C. Ferguson, Johnson City, for appellees.
   ARCHER, Chief Justice.

This is a suit by appellant Satterwhite for reformation and in the alternative to have cancelled a deed from Jeffie Henrietta Satterwhite to appellee Commercial Bank, at least insofar as the deed affected an undivided one fourth interest in a 921.78 acre ranch, in Bell County, Texas, claimed by appellant and for recovery of title.

Both appellant Satterwhite and appellee Bank filed motions for summary judgment.

Upon a hearing the trial court sustained appellee’s motion and denied appellant all relief, including his motion for summary judgment, and judgment was entered against Bill H. Satterwhite and Maryland Casualty Company, the surety on his cost bond.

The land in litigation was the community property of David S. Satterwhite, deceased, and Jeffie Henrietta Satterwhite, the surviving widow.

David S. Satterwhite by his will left all of his property to his widow and two sons. The will, in essential parts, is as follows:

“SECOND. I desire to state that all of the property that I now own is the community property of myself and my wife, Jeffie Henrietta Satterwhite.
THIRD. I give, devise and bequeath all of my property, both real and personal, that I may die possessed of, of every nature and kind after payment of my just debts, to my beloved wife, Jeffie Henrietta Satterwhite, to have and to hold the same for and during her natural life, to use as she sees proper, with remainder over and after her death to our two children, namely, Bill H. Satterwhite and Clay T. Satterwhite, and such other children as may be born to us, and their legitimate bodily heirs, share and share alike.
FOURTH. And my wife, Jeffie Henrietta Satterwhite, shall use her own judgment and pleasure in making any advances, loans, or help to any of my children, and such advances, loans or help so made, shall be charged up to the one receiving same and shall be deducted in the final settlement. I furthermore give my wife full authority to sell, transfer and assign any portion of my estate, real or personal, the purchaser shall he under no duty to see that the proceeds of the sale are disbursed in accordance with this will.
FIFTH. In the event of my wife’s marriage, I desire and so will and direct, that all of my part of the estate on hand at the time of such marriage, be then divided equally among my surviving children or their legitimate bodily heirs.”

Mrs. Satterwhite entered into a contract of sale with The Commercial Bank of “all her right, title and interest in and to” a certain 920 acres of land, more or less, for an agreed price of $26,000.00.

Mrs. Satterwhite executed a deed to ap-pellee bank, which she signed individually only and which, except for formal parts and the description, is as follows:

“THE STATE OF TEXAS COUNTY OF BELL KNOW ALL MEN BY THESE PRESENTS:
THAT I, Jeffie Henrietta Satterwhite, individually, and as Executrix of the estate of David S. Satterwhite, deceased, of the County of Bell, State of Texas, for and in consideration of the sum of TWENTY SIX THOUSAND AND NO/100 ($26,000.00) DOLLARS to me in hand paid by The Commercial Bank, Unincorporated of Mason, Texas, a partnership consisting of C. Victor Thornton, Lloyd Thornton and Ed H. Winton, Jr., the receipt of which is hereby acknowledged and for which no lien either express or implied is retained, have GRANTED, SOLD AND CONVEYED and by these presents do GRANT, SELL AND CONVEY unto the said The Commercial Bank, Unincorporated, a partnership consisting of C. Victor Thornton, Lloyd Thornton and Ed H. Winton, Jr., the following described tracts of land, to-wit:
⅝ ⅝ ⅝ íjí íjí ⅜
TO HAVE AND TO HOLD, the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said The Commercial Bank, Unincorporated, its successors and assigns forever. And I do hereby bind myself, my heirs, executors and administrators to WARRANT AND FOREVER DEFEND, all and singular the said premises unto the said The Commercial Bank, Unincorporated, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.”

On June 29, 1960, Clay T. Satterwhite and wife, Faye Jaurea Satterwhite, executed a deed of trust conveying to Ray Durst, Trustee, for The Commercial Bank, of “all my right, title and interest” in and to certain tracts of land, describing them.

On April 2, 1962, Clay T. Satterwhite deeded all of his right, title and interest in the subject lands to the Bank for a consideration of $10.00 and other valuable consideration paid. The amount of the total consideration was stated by Satter-white in an affidavit to be about $17,400.00.

The appeal is founded on eleven points, the first eight points are interrelated and all pertain to the error of the trial court in sustaining the Bank’s motion for summary judgment, and we will consider them together.

The Bank filed its motion for summary judgment which was opposed by appellant and on hearing such motion was granted.

A determination of this litigation depends upon a proper construction of the will of David S. Satterwhite, deceased.

As is to be observed from the wording of the will herein set out by the third paragraph, the testator gave all of his property to his wife “to have and to hold the same for and during her natural life to use as she sees proper, with remainder over and after her death to our two children *

The fourth paragraph provides that Mrs. Satterwhite should use her own judgment in making any advances, loans or help to the children. “I furthermore give my wife full authority to sell, transfer and assign any portion of my estate, real or personal, the purchaser shall be under no duty to see that the proceeds of the sale are disbursed in accordance with this will.”

The fifth paragraph of the will is as follows:

“In the event of my wife’s marriage, I desire and so will and direct, that all of my part of the estate on hand at the time of such marriage, be then divided equally among my surviving children or their 'legitimate bodily heirs.”

To determine the intention of the testator is the cardinal rule of the construction of any will. In doing so, the testator’s general scheme and dominant purpose control.

Long v. Long, Tex.Civ.App., 252 S.W.2d 235, er. ref., n. r. e.

Our Supreme Court in McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412, stated that:

“In construing the will, all its provisions should be looked to, for the purpose of ascertaining what the real intention of the testatrix was; and, if this can be ascertained from the language of the instrument, then any particular paragraph of the will which, considered alone, would indicate a contrary intent, must yield to the intention manifested by the whole instrument.”

Looney v. First Nat. Bank of Floresville, Tex.Civ.App., 322 S.W.2d 53, er. ref., n. r. e.

The Supreme Court in the case of Edds v. Mitchell, 1945, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470, had before it a will similar in effect to the one under discussion here. The Court said in part:

“The intention of the testator, clearly expressed by Item Three of the will, that his wife should take only a life estate, is a fact of importance in determining the question presented for decision, which, as petitioner in his application for writ of error states, is whether the exercise by the life tenant of the power of sale given by Item Four of the will operated to divest the remaindermen of title to the proceeds of the sale. * * * The power of disposition is not an estate. It is merely authority derived from the will to dispose of the fee. (Citing case authority). * * * It is not inconsistent with or repugnant to the estate for life. 33 Am.Jur. pp. 484, 485, Sec. 21. It is not repugnant to the remainder, but when exercised, it defeats the remainder in the property sold or conveyed.”

Colonel Satterwhite, the testator, vested limited power in Mrs. Satterwhite to sell the land by the use of the words “I furthermore give my wife full authority to sell, transfer and assign any portion of my estate, real or personal, the purchaser shall be under no duty to see that the proceeds of the sale are disbursed in accordance with this will.”

It is apparent to us that the testator authorized a sale of “any portion” of his estate, if Mrs. Satterwhite in the use of her judgment, desired to make any advances, loans or help to any of the children.

We believe that the trial court erred in sustaining the Bank’s motion for summary judgment, since, in our construction of the will of Colonel Satterwhite, the widow, Mrs. Satterwhite, was not authorized to make a conveyance of the land, and particularly that one fourth portion belonging to Bill H. Satterwhite, appellant, who as a matter of law, after the remarriage of' Mrs. Jeffie Henrietta Satterwhite to W. T. Chambers, was entitled to his share.

As we have stated, the Bank paid Clay T. Satterwhite in excess of $i7,000.00 for an undivided one fourth interest in the land and paid Mrs. Jeffie Henrietta Satterwhite $26,000.00 for, according to the contract of sale, all of her right, title and interest in the lands.

No payment has been made by the Bank for the interest of Bill H. Satterwhite.

Mrs. Jeffie Henrietta Satterwhite, in a deposition, testified in part: Asked if she had had any unpleasantness with her sons at all, she answered, “They have created quite a bit.” She said they had called her for their part of their daddy’s estate. She also gave the shotgun away and other guns. She told Winton and Lee she had been offered $60,000.00 for the land by Mr. Roach but that he wanted the deed of trust and judgment against Clay’s part of it removed; told him she had had this offer of $60,000.-00 for the whole place and told him she was willing to sell “my right, title and interest.” Asked if she told Mr. Lee, the Bank’s attorney, that what she wanted to do was sell her half interest in the property, her community one half, she answered, “I don’t know that I ever said half interest. I believe I said interest.”

“Q Isn’t it true that Mr. Winton or Mr. Thornton or Mr. Lee or all of them told you that they would take care of the interest that these boys had and settle up with them ?
A I feel sure that we discussed it.”

Asked about her discussions with Winton and Lee, she said she was “actually interested in keeping that boy (Clay) out of the penitentiary” and they discussed Clay’s part, she was sure, about the fact that they would have to buy his interest sooner or later, but is not sure about the other. She was taking less than half what she was offered for the property because “I wanted to get out of it; I wanted to get out of the whole thing. I just wanted to get relieved of the whole business. I felt like I had the money coming.” Asked if all she was doing was just selling her interest, not purporting to sell any interest the boys might own, she said, “I agreed to sell my right, title and interest.” She further testified:

“Q Your individual right, title and interest; that is correct, isn’t it?
A Well, my right, title, and interest; that is all I know.
⅜ ⅜ * ⅜ * *
Q And that was all that — you weren’t purporting to sell any interest that they might have in the ranch, or the — that’s right, isn’t it?
A As I stated before, to my knowledge, I sold my right, title, and interest.
Q And--
A Whatever it might be.
Q And you did not sell, nor purport to sell, nor intend to sell their right, title, and interest; that was not the way the deal was explained to you, was it?
A Well, it was explained to me that I was selling my right, title, and interest, whatever it might be.
⅜ ⅝ ⅜ ⅜ ⅝ ⅜
Q Now, you have stated to other people, haven’t you, that you sold your interest in the ranch, and that the boys could then fuss it out with the people that you had sold to, didn’t you?
A Yes; I think I wrote that to what I thought was a friend of mine.
Q Well, you made that statement that —I have quoted you correctly, have I not; haven’t you made that statement repeatedly?
A I have made a statement that I sold my interest.
Q And also that the hoys could fuss it out with the party you sold to ?
A They could fuss it out with whoever they were supposed to fuss it out.”

We believe that the will in its devising clauses does no more than give a life estate to Mrs. Satterwhite, with power of disposition as provided, of “any portion” for the purposes of making loans or advances to the two sons, and certainly does not give power to make a gift of appellant’s interest. Hughes v. Beall, Tex.Civ.App., 264 S.W. 171, er. ref. n. r. e.; 57 Am.Jur., Wills, Sec. 1218, N. 5; Caples v. Ward, 107 Tex. 341, 179 S.W. 856; Ellis v. Bruce, Tex.Civ.App., 286 S.W.2d 645, er. ref. n. r. e.

The fact that a life tenant is given a general power of disposal does not change the estate into something other than a life estate. Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823; Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588.

Appellee cites Long v. Long, Tex.Civ.App., 252 S.W.2d 235, er. ref. n. r. e.

The terms of the will in the Long case are broader than those in the Satterwhite will.

The case of Looney v. First National Bank of Floresville, Tex.Civ.App., 322 S.W.2d 53, er. ref. n. r. e., was a trespass to try title suit, and the holding is not controlling in this instant case.

The will in the case of Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876, was a joint will of T. M. Harrell and his wife, Maggie Harrell, and by its terms all of the testator’s property was given to the survivor, for such survivor’s sole use and benefit, and, provided for disposition of any remainder to others, and gave a conditional fee or defeasible fee and is not controlling in a construction of the Satter-white will.

This Court in Maxwell v. Harrell, 183 S.W.2d 577, er. ref. w. m., considered a will in which the wife was given a life estate with power of sale and discussed the cases and law in connection with such bequests, and the sale only of the wife’s interest.

The judgment of the trial court is reversed and judgment here rendered for the appellant for an undivided ¼ interest in the land.

Reversed and rendered.


author: BATEMAN, Justice.

text:
    The STATE of Texas, Appellant, v. Charles ROSE, Jr., et ux. (1962 Chevrolet Automobile), Appellees.
    No. 16726.
    Court of Civil Appeals of Texas. Dallas.
    April 29, 1966.

      Henry Wade, Dist. Atty., John J. Orvis, Asst. Dist. Atty., Dallas, Waggoner Carr, Atty. Gen., and Douglas H. Chilton, Asst. Atty. Gen., Austin, for appellant.
    Levi N. Curl, Dallas, for appellee, Marie McCutcheon, Dallas, for intervener.
   BATEMAN, Justice.

This is a proceeding ⅛ rem, under Article 666-42, Vernon’s Ann. Penal Code of Texas, of the Texas Liquor Control Act, to forfeit a 1962 Chevrolet automobile owned by Charles Rose, Jr. The State alleged that the automobile, operated by Mattie Crow Moore, alias Mattie Rose, was used to transport illicit alcoholic beverages without a permit having been procured for such transportation, in violation of Art. 666-4 (a), Penal Code, which makes it unlawful for a person to transport liquor in any wet area without first having obtained a permit of the class required for such privilege. At the conclusion of a nonjury trial the trial court denied the forfeiture. Upon request, he filed findings of fact: (1) that Henry Gardner, Jr. purchased the beverages in question for his own consumption, (2) that the beverages were never in custody and possession of Mattie Crow Moore, alias Mattie Rose, and (3) that Gardner transported the beverages from a place where the sale thereof was legal to a place where the possession thereof was legal. The court’s conclusions of law were: (1) that a permit was unnecessary and (2) that the automobile should not be forfeited.

Grove State Bank, of Dallas, Texas, intervened and set up a lien on the automobile. Counsel for appellee conceded in oral argument that this was a valid lien which should be recognized and protected in the forfeiture proceedings. Art. 666-42(c), Penal Code.

The State brings this appeal on three points of error, none of which directs our attention to any error committed by the trial court, as required by Rule 418, Vernon’s Texas Rules of Civil Procedure, all of them being mere abstract statements or propositions of law. However, in accordance with our usual practice, and pursuant to the rule announced in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, we have examined the statements and arguments contained in the brief and conclude therefrom that appellant contends that the undisputed facts require an order of forfeiture as a matter of law and that the court erred in not granting the same. We do not agree with appellant.

The facts are undisputed. On the occasion in question the appellee Mattie Crow Moore, also sometimes known as Mattie Rose, drove the automobile in question, and stopped it in front of a duly licensed liquor store. Henry Gardner, Jr. got out of the car, went in and purchased a case of wine and several half-pint bottles of whisky, which he then brought out and placed in the automobile, and sat in the front seat beside the driver, whereupon Mattie Crow Moore drove the automobile to Gardner’s' home. As soon as it stopped two officers, one a city policeman and the other an inspector of the Texas Liquor Control Board, who had witnessed the purchase and had followed the Chevrolet, demanded of Mattie Crow Moore her permit to transport the wine and whisky. Having none, she was arrested and the car and the alcoholic beverages seized. Both the liquor store and the place of arrest and seizure were within a “wet area”.

There was no evidence that Mattie Crow Moore knew what was in the packages which Gardner placed in the car, or that she had contributed to the purchase price thereof or had any interest therein, or received any consideration for the transportation, or that Charles Rose, Jr., the owner of the car, had authorized her to use the car to transport Henry Gardner to a store or to use it to transport alcoholic beverages or for any purpose other than to visit a sick friend.

Gardner’s purchase of the liquor was entirely legal and he needed no permit to transport it to his home for his own consumption. Art. 666-23a (1) provides “that any person who purchases alcoholic beverages for his own consumption may transport same from a place where the sale thereof is legal to a place where the possession thereof is legal.” But, appellant says, Mattie Moore was doing the transporting, and not to her home or for her own consumption, and that in doing so without a permit she violated the law.

The pertinent parts of Art. 666-42(a) are as follows:

“All illicit beverages as defined by this Act * * *, and any * * * automobile * * * used for transportation of any illicit beverage, * * * may be seized, etc.”

It is noted that seizure is authorized only when the automobile carries illicit beverages, and that appellant’s only asserted ground for describing the beverages in question as “illicit” is that Mattie Moore was transporting them without a permit, in violation of Art. 666-4(a), the pertinent parts of which are:

“It shall be unlawful for any person to * * * transport * * * any liquor in any wet area without first having procured a permit of the class required for such privilege.” (Italics ours.)

In Blanks v. State, 336 S.W.2d 430, our Court of Criminal Appeals held that a conviction for transporting whisky in a wet area without a permit could not stand where it appeared that the only act committed by the defendant “was not such a transportation for which he could have secured a permit authorizing the privilege and therefore such act did not violate Art. 666-4(a), supra.”

Appellant neither alleged nor attempted to prove what class or type of permit Mattie C. Moore was required to have. Both of the arresting officers testified that they did not know of any type of permit which she could have obtained or which' could have been issued to her under the Act authorizing her to transport liquor from the liquor store where it was purchased to a residence within the same wet area. Appellant says there are approximately eight pages of various types of permits listed in the Act, providing for the lawful handling of alcoholic beverages, but refrains from suggesting to us which would apply here. We have not been able to find any. Therefore, under the doctrine of Blanks v. State, supra, it appearing affirmatively that what Mattie C. Moore did was not such a transportation for which she could have obtained a permit authorizing the privilege, we hold that no unlawful transportation was shown. That being true, it was not shown that the liquor was “illicit”; ergo, there was no right to forfeiture of the automobile.

The last sentence of the first paragraph of Art. 666-4 is as follows:

“Any act done by any person which is not granted in this Act is hereby declared to be unlawful.”

Appellant in effect argues that, since the Act does not specifically grant to a person the privilege of giving a ride to a friend and his packages containing.liquor, such transportation is unlawful and subjects the automobile so used to forfeiture. We do not believe a reasonable interpretation of the quoted language would warrant such an incongruous result.

If the quoted sentence were to be given such literal effect as appellant would have us do, even more startling consequences might ensue. No one questions the legality of Gardner’s purchase of the liquor, or that he had a legal right to transport it to his home for his own consumption. If he had started to walk home from the liquor store, could he not accept the offer of a friend to give him a ride in her automobile without subjecting his friend’s car to confiscation? Or if, after walking part of the way home and becoming tired, he hailed a taxicab for the rest of the journey, is it reasonable to believe that the taxi operator had thereby violated the law, subjecting his vehicle to confiscation? We do not believe the Legislature intended to visit such harsh punishment on citizens for performing ordinary acts of friendly courtesy, or furnishing taxicab service, when neither is specifically made a crime by law, particularly when the operators of the vehicles are not shown to have any knowledge that alcoholic beverages were being transported.

As said in State v. Missouri, K. & T. Ry. Co., 100 Tex. 420, 100 S.W. 766, 767:

“A penal statute ⅜ ⅜ * must be couched in such explicit terms that the party upon whom it is to operate may with reasonable certainty ascertain what the statute requires to be done, and when it must be done; otherwise, there would be no opportunity for a person charged with the duty to protect himself by the performance of it according to the law.”

See also Articles 1, 6, 8 and 10, Penal Code.

Because the trial court’s judgment denying the forfeiture was in our opinion correct, all of appellant’s points of error are overruled and the judgment is

Affirmed.


text:
    The STATE of Texas, Appellant, v. R. O. CURREY et ux., Appellees.
    No. 11377.
    Court of Civil Appeals of Texas. Austin.
    March 23, 1966.
    On Rehearing April 27, 1966.

      John B. Henderson, Jr., County Atty., Milam County, for appellant.
    Camp, Ellett & Camp, Emory B. Camp, Cameron, for appellees.
   ARCHER, Chief Justice.

We are withdrawing our former opinion filed March 23, 1966 and file this as the opinion of this Court.

This is an eminent domain case brought by The State of Texas to condemn for highway widening purposes .052 acres of land located in the town of Minerva, Milam County, Texas, the same being a part of the tract of land upon which appellees resided, to widen U. S. Highway 77, which adjoined appellees’ tract of land. Appellees offered evidence of the market value of the condemned land considered as severed property, as well as the value of the remaining land immediately after the taking. The error asserted by appellant is that there was no evidence of the market value of the remaining tract immediately before the taking. At no time during the trial did appellant offer any testimony as to the market value of the property but relied on appel-lees’ witnesses.

Appellees’ position is that the court did not err in rendering a judgment in accordance with the jury’s answers to the Special Issues submitted, and in the alternative, if damages awarded therein were excessive, then a remittitur is appropriate.

The point of error complained of is that there is no evidence to support the jury’s answer to Special Issue No. 2.

In answer to Issue No. 1 the jury found that the value of the severed land was five hundred dollars.

Special Issue No. 2, reads:

“From a preponderance of the evidence, what do you find was the market value of the defendants’ tract of land exclusive of the strip of land condemned immediately before the strip was taken for highway purposes ?
Answer in dollars and cents.
A Ten Thousand Five Hundred Dollars.”

In answer to Special Issue No. 3 the jury found that the market value of the remainder of defendants’ tract after the taking of the strip condemned was Seven Thousand Five Hundred Dollars.

Witness Barton Sutton testified that the reasonable cash market value of the severed strip was Five Hundred Dollars and that the reasonable cash market value of the tract before any was taken for highway purposes was from $10,500.00 to $11,500.00, and that the value after the taking was around $7,500.00.

We do not believe that the evidence of Sutton supports the submission of and answer of the jury to Special Issue No. 2, inquiring about the market value of the remainder of appellees’ tract of land immediately before the taking of the severed strip of land, such testimony was as to the reasonable cash market value of the tract before any was taken, and he did not testify as to the value of the remainder, exclusive of the strip taken, before the taking actually took place, and such testimony is immaterial.

City of Irving v. Caster, Tex.Civ.App., 397 S.W.2d 952.

The motion of appellant is granted and the judgment of the trial court is reversed and the cause remanded for a new trial.


text:
    Quentin LUSBY et al., Appellants, v. W. T. COZBY et al., Appellees.
    No. 16720.
    Court of Civil Appeals of Texas. Dallas.
    April 15, 1966.
    Eades & Eades, Eric Eades, Jr., Dallas, for appellants.
    Saner, Jack, Sallinger & Nichols, and Lawrence W. Jackson, Dallas, for appel-lees.
   BATEMAN, Justice.

This is a contest of an election in the Town of Coppell, Texas, wherein four propositions authorizing the issuance of bonds were reported to have carried by margins of 19, 8, 22 and 12 votes, respectively. The appellants, Quentin Lusby and Dr. Charles Tilley, in their suit to contest the election alleged that twenty-two qualified voters, each of whom would have voted against all four propositions, thereby defeating them, were unlawfully denied the right to vote.

The trial court, sitting without a jury, denied the contest, and upon request filed findings of fact and conclusions of law. The findings of fact were: that (1) a majority of the legal votes cast in the election were in favor of all four propositions voted upon; (2) on the date of the election twenty-two persons, naming them (and being the same persons alleged by appellants to have been wrongfully denied the right to vote at said election), did not in fact reside within the then existing corporate limits of the City of Coppell, Texas; (3) each of the said twenty-two persons resided in an area which had been on March 1, 1965 discontinued as a part of the corporate limits of the City of Coppell by Ordinance No. 20; (4) said twenty-two persons attempted to vote in said election, were not allowed to do so and, if permitted, each would have voted against all of the propositions voted upon; (5) on March 1, 1965 the City Council of the City of Coppell met at a regular council meeting and adopted Ordinance No. 20; which (6) disannexed from the corporate limits of Coppell the area where the said twenty-two persons resided; (7) on March 1, 1965 the City Council of Coppell also passed Ordinance No. 21, which adopted the provisions of Chapters 1 through 10 of Title 28, that are required to be adopted by Article 961; (8) said Ordinances Nos. 20 and 21 were adopted at the same meeting, No. 20 being passed first and No. 21 shortly thereafter; (9) Ordinance No. 21 was filed in the records of the County Clerk of Dallas County on March 2, 1965.

The court’s conclusions of law were that the aforesaid twenty-two persons were not qualified to vote in the election; that the results of the election, as originally canvassed and declared, were the true and correct results, and that the contest herein was without merit; that the authority and power to discontinue territory, as granted by Article 973, can be exercised by cities or towns operating under the provisions of Chapter 11, Title 28, as well as those cities or towns generally referred to as “Chapter 1 Cities” which have adopted the provisions necessary to be adopted under Article 961; that where a city council passes two ordinances at the same meeting, and where technically the validity of one ordinance is dependent upon the prior passage of the other ordinance, but where in fact the council passes the ordinances out of their proper order, but within a few minutes of each other, the mere technicality of passing the ordinances out of their proper order will not invalidate the ordinance first passed, and that the law in such case will construe the ordinances as having been passed in the order necessary to give them legal effect, and will not hold a city council consisting of laymen to such a technical understanding of the law.

By four points of error on appeal the appellants present the sole ultimate question: Were the twenty-two persons who were refused the right to vote qualified voters ? If so, the judgment should be reversed, for their negative votes would have defeated the four propositions of which the appellants complain.

Prior to the council meeting on March 1, 1965, the Town of Coppell was incorporated under the terms and provisions of Chapter 11, Title 28 (Articles 1133-1153a). In that status it had no authority to issue bonds or to create debts. The only way it could acquire authority or power to do so was to pass an ordinance accepting the provisions of Chapters 1 through 10 of Title 28, in accordance with the provisions of Article 961.

This is what the City Council did by the passage of Ordinance No. 21 at its meeting on the night of March 1, 1965. Appellants concede the validity of that ordinance, but take the position that the council had no authority or power to pass Ordinance No. 20 (the disannexation ordinance) until after Ordinance No. 21 was passed and a copy thereof, signed by the mayor and attested by the clerk or secretary under the corporate seal, was filed in the office of the County Clerk. The copy was not filed until the next day, March 2, 1965.

The first three points of error, briefed together, assert error in upholding the election because the twenty-two persons, unlawfully disfranchised by Ordinance No. 20, if allowed to vote would have changed the results of the election.

Title 28, V.A.C.S., entitled “CITIES, TOWNS AND VILLAGES,” is a codification of laws pertaining to cities, towns and villages, their incorporation, forms of government, powers, etc., and consists of twenty-two chapters. Chapter 1 (Articles 961-976b) is entitled “Cities and Towns.” Chapters 2 through 10 (Articles 977-1132) contain numerous provisions not pertinent here. Chapter 11 (Articles 1133-1153a) is entitled “Towns and Villages.” There are three general classifications of municipal corporations in Texas; viz., Home Rule, Special Charter and General Law. Here, we are concerned only with General Law municipalities.

General Law municipalities are considered to be divided into two categories; viz., first, those organized under Chapters 1 through 10 of Title 28, known as “Cities and Towns” and, second, those organized under Chapter 11 of Title 28, known as “Towns and Villages.” The difference between them was thus described in 1887 by Judge Gaines in City of Waxahachie v. Brown, 67 Tex. 519, 4 S.W. 207, 209:

“The difference between the provisions of the title referred to in reference to cities, and those relating to towns is remarkable. There are ten chapters devoted to the former, and but one to the latter, class of municipal corporations. The powers granted to towns in chapter 11 of that title are hardly more than are absolutely essential to their existence as bodies corporate. No authority to issue bonds, or to create debts, is given them, and hence there are no enactments regulating the amount or mode of their issue.”

The only statutory authority for discontinuing a portion of the territory within a municipality is found in Article 973, as follows:

“Whenever there exists within the corporate limits of any city or town organized under the general laws within this State territory to the extent of at least ten (10) acres, contiguous and adjoining the lines of any such city or town, which is uninhabited or on which there are fewer than one (1) occupied residence or business structure for every two (2) acres of such territory and fewer than three (3) occupied residences or business structures on any one (1) acre of such territory, the mayor and city or town council may by ordinance duly passed discontinue said territory as a part of said city or town; and when said ordinance has been duly passed, the mayor shall enter an order to that effect on the minutes or records of the city or town council; and from and after the entry of such order said territory shall cease to be a part of said city or town.”

Appellants argue that Article 973 (a part of Chapter 1) could not apply to Cop-pell (a Chapter 11 town) unless and until it accepted, by a two-thirds vote of its council, the provisions of Title 28 “relating to cities and towns,” and that no such action had been taken by Coppell at the time of the attempted disannexation.

We do not agree with appellants. In the first place, the wording of Article 973 indicates clearly that it was intended to apply to all General Law municipalities, there being nothing in its language to indicate a legislative intent to limit its applicability to any particular class or category of cities or towns. It specifically makes itself applicable to “any city or town organized under the general laws within this State.” Coppell was such a town.

In the second place, the inclusion of Article 973 as a part of Chapter 1 without specifically making it also applicable to towns and villages organized under Chapter 11 is, we think, a mere circumstance without significance, so far as this question is concerned. We think the legislative history of Article 973 does have significance. When the legislature in 1875 passed a rather elaborate set of statutes relating to municipalities (Acts of 1875, p. 113, G.L. Vol. 8, pp. 485-528) no authority for the disannexation by a city, town or village of any territory within its boundaries was contained therein; and it was not until 1895, twenty years later, that the law which is now Article 973 was passed. At all times since then it specifically applied to “any city or town organized under the general laws within this State”; and its caption was: “An act to enable the mayor and city council of any town or city to discontinue uninhabited territory as a part of any city or town.” (Italics ours.) Acts of 1895, p. 178, G.L. Vol. 10, p. 908. At no time did it contain words indicating an intent that it should be inapplicable to Chapter 11 towns or villages.

Therefore, we hold that Article 973 invested Coppell’s governing body with authority to discontinue territory within its limits, whether it took the action provided for in Article 961 or not. Mallow v. State, Tex.Civ.App., 374 S.W.2d 732, wr. ref. n. r. e.

If we be mistaken in so holding, our disposition of the appeal would be the same because we hold that the fact that Ordinance No. 20 was passed a few minutes before the passing of Ordinance No. 21 is immaterial. The trial court correctly held that the two ordinances should be construed as having been passed in the order necessary to give them legal effect. McQuillin, Municipal Corporations, 3d Ed., Vol. 6, §§ 20.50, 20.62. That being true, Coppell must be considered as having adopted the provisions of Article 961 and clearly entitled to exercise the grant of authority contained in Article 973.

Appellants argue that the foregoing conclusion is unsound because, although both ordinances were passed at the same meeting, Ordinance No. 21, adopting the provisions of Article 961, could not have become effective until the next day when a copy thereof was filed in the office of the County Clerk. We do not agree. If the filing and recording of a copy of the ordinance in the office of the County Clerk is essential to its validity (which we do not find it necessary to determine), the sole purpose of the requirement is to make a permanent, public record of the action of the council. It is the council’s action, not the evidence or record thereof, which actually accomplishes the transformation of the municipality from one category to another. Therefore, we hold that Ordinance No. 21 was effective when passed on March 1, 1965, since the requirement of filing and recording was met in due season and long before the election.

For the reasons enunciated above, appellants’ first three points of error on appeal are overruled.

By their fourth point appellants attack the validity of the election on the ground that Ordinance No. 20 was improper and unauthorized in that, contrary to the provisions of Article 973, the disannexed area contained more than three occupied structures per acre. There was undisputed testimony to the effect that contained within the discontinued area there was one square acre on which were situated three occupied houses.

The trial court evidently disregarded this testimony as a collateral attack on the ordinance. We approve. Contained in the ordinance itself is a specific finding by the council that the area to be discontinued had fewer than one occupied residence or business structure for every two acres, and fewer than three occupied residences or business structures on any one acre, of such territory. This was a quasi-judicial determination and was conclusive on the court in the absence of a showing of fraud. State ex rel. Rea v. Etheridge, Tex.Civ.App., 20 S.W.2d 808, reversed on other grounds 32 S.W.2d 828; Kuhn v. City of Yoakum, Tex.Com.App., 6 S.W.2d 91; Phillips v. City of Odessa, Tex.Civ.App., 287 S.W.2d 518, wr. ref. n. r. e.

Appellants argue that this election contest is not a collateral but a direct attack on the election itself, citing De Shazo v. Webb, 131 Tex. 108, 113 S.W.2d 519. However, the sole basis for the attack is the asserted invalidity of Ordinance No. 20, and as to that ordinance this is a collateral attack. De Shazo v. Webb, supra, is authority for holding that appellants had the right to contest the election for any irregularities or illegalities in the conduct of the election, but it is not authority for the effort made here to nullify legislative action by the municipality under the guise of an election contest. An attack on the ordinance should be adjudicated by a quo war-ranto proceeding brought by the state, or to which it is a party. Kuhn v. City of Yoakum, supra; Phillips v. City of Odessa, supra.

If Coppell wrongfully misused powers delegated to it by the Legislature, such was a wrong against the state requiring action in form quo warranto for its rectification. Town of De Kalb v. State, Tex.Civ.App., 71 S.W.2d 299.

There being neither pleading nor proof of any fraud in connection with such finding by the council, it was not subject to collateral attack and the court properly disregarded the testimony. Warren v. Robinson, Tex.Civ.App., 32 S.W.2d 871, no wr. hist.; Turner v. Allen, Tex.Civ.App., 254 S.W. 630, wr. dism. Appellants’ fourth point of error is overruled.

The judgment appealed from was correct and is

Affirmed.

WILLIAMS, J., not sitting.

      . All Articles and Chapters mentioned in the opinion refer to Vernon’s Annotated Civil Statutes.

      . Article 961, a part of Chapter 1, provides for this transformation, as follows:
      “Any incorporated city, town or village in this State containing six hundred inhabitants or over, however legally incorporated, and any incorporated city, town or village of whatever population containing one or more manufacturing establishments within the corporate limits, may accept the provisions of this title relating to cities and towns, in lieu of any existing charter, by a two-thirds vote of the council of such city, town or village, had at a regular meeting thereof, and entered upon the journal of their proceedings, and a copy of the same signed by the mayor and attested by the clerk or secretary under the corporate seal, filed and recorded in the office of the county clerk in which such city, town or village is situated, and the provisions of this title shall be in force, and all acts theretofore passed incorporating said city, town or village which may be in force by virtue of any existing charter, shall be repealed from and after the filing of said copy of their proceedings, as aforesaid. When such city, town or village is so incorporated as herein provided, the same shall be known as a city or town, subject to the provisions of this title relating to cities and towns, and vested with all the rights, powers, privileges and immunities and franchises therein conferred. The provisions of this title shall not apply to any city, town or village until such provisions have been accepted by the council in accordance with this article.”


author: COLEMAN, Justice.

text:
    Margaret Wells DOBBINS, Appellant, v. Herman L. GARDNER, Appellee.
    No. 14679.
    Court of Civil Appeals of Texas. Houston.
    April 14, 1966.
    Rehearing Denied May 19, 1966.
    See also Tex.Civ.App., 377 S.W.2d 665.

      Phelps, Kilgarlin & Snell, Jim S. Phelps, Houston, for appellant.
    Richard B. Miller, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a damage suit. The principal question to be discussed concerns the effect of conflicting answers made by the jury to the special issues submitted.

In answer to Special Issues 1 and 2 the jury found that a gauze pack was left in appellant’s vagina and that this constituted negligence on the part of appellee.

Special Issues 3, 6 and 7, and the answers returned by the jury, follow:

Special Issue No. 3
Do you find from a preponderance of the evidence that such negligence, if any you have so found, was a proximate cause of any damage or harm to the physical structure of the plaintiff’s body? [Answer: “We do not.”]
Special Issue No. 6
What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate the plaintiff for the damages, if any, which have resulted from such damage or harm, if any, to the physical structure of her body, as you find from a preponderance of the evidence were directly and proximately caused by leaving a gauze pack within her vagina, if you have found that such gauze pack was so left, taking into consideration such of the following elements of damage as you find are established by a preponderance of the evidence and none other:
(a) Such physical pain, if any, as you may find from a preponderance of the evidence the plaintiff, Margaret Wells Dobbins, has suffered from March 16, 1958, to the date of this trial, as a direct and proximate result of the injuries sustained by her on the occasion made the basis of this suit;
(b) Such mental anguish, if any, as you may find from a preponderance of the evidence the plaintiff, Margaret Wells Dobbins, has suffered from March 16, 1958, to the date of this trial, as a direct and proximate result of the injuries sustained by her on the occasion made the basis of this suit;
(c) Such loss of earnings, if any, as you may find from a preponderance of the evidence the plaintiff, Margaret Wells Dobbins, has suffered from March 16, 1958, to the date of this trial, as a direct and proximate result of the injuries sustained by her on the occasion made the basis of this suit;
Answer by stating the amount, if any, in dollars and cents. [Answer: $4,000.-00.”]
Special Issue No. 7
What sum of money, if any, do you find from a preponderance of the evidence represents the reasonable value of such hospital and doctors expenses, if any, as you may find from a preponderance of the evidence were necessarily obtained by the plaintiff in the treatment of the damage or harm, if any, to her body which was proximately caused by the leaving of the gauze pack within her vagina, if you so found?
Answer by stating the amount, if any, in dollars and cents. [Answer: “0.”]

The trial court entered judgment that the plaintiff take nothing. On this appeal the plaintiff, appellant herein, contends the answers made by the jury to Special Issues 3 and 6 cannot be reconciled and that a mistrial should have been ordered.

“It is the duty of the trial court to reconcile apparent conflicts in the jury’s findings if this can be reasonably done in the light of the pleadings and the evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole. Texas Indemnity Ins. Co. v. Bridges, Tex.Civ.App., 52 S.W.2d 1075, writ ref.; Merritt v. King, Tex.Civ.App., 66 S.W.2d 464, writ ref.” [Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558.]

This statement was quoted with approval by the Supreme Court in Perkins v. Mitchell, 153 Tex. 368, 268 S.W.2d 907.

It is appellee’s position that if either Special Issue 3 or Special Issue 6 is disregarded, a judgment for defendant would be required because the plaintiff had failed to secure a finding that the negligence of the defendant was the proximate cause of the injury or damage sustained by the plaintiff. Thus, under the Little Rock rule, there would be no fatal conflict. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985; Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772.

However, in Special Issue No. 6 the jury is instructed to find only that sum of money which would compensate the plaintiff for the damages resulting from harm to the physical structure of her body directly and proximately caused by leaving the gauze pack in her vagina. If the instructions of the court contained in this issue had been followed by the jury, the only answer which it could have made to the issue consistent with the answer to Issue No. 3 would have been zero. Therein lies an apparent conflict.

Appellee urges that the answer to Special Issue No. 6 is understandable in light of the instruction that the jury should take into consideration only the physical pain, mental anguish and loss of earnings suffered by plaintiff “as a direct and proximate result of the injuries sustained by her on the occasion made the basis of this suit.” This might be interpreted as an instruction that plaintiff sustained injuries on the occasion of her operation. The evidence is undisputed to the effect that biopsies were taken on that occasion resulting in bleeding which was controlled finally after additional stitches were taken during a subsequent period of hospitalization. There is evidence from which it might be concluded that physical pain, mental anguish and loss of earnings resulted from the prolonged bleeding and the procedures adopted to control it. There is some evidence that the continued bleeding was aggravated by the gauze pack. The answer made to Issue No. 7 is entirely consistent with that made to Issue No. 3, and, considering the evidence, not necessarily inconsistent with the answer to Issue No. 6.

Considered in its entirety Special Issue No. 6 is unclear. The jury might well be uncertain as to what issues it was required to determine before returning an answer in dollars and cents. No doubt the jury was of the opinion that the primary purpose of the issue was to elicit from it the amount of damage suffered by the plaintiff as a result of the injuries suffered on the occasion in question since Issue No. 3 was concerned only with proximate cause. Under such conditions the more specific issue should control the general damage issue. “Findings are not mutually destructive if there is any reasonable explanation of seeming conflicts.” Fort Worth & Denver Railway Company v. Britton, Tex.Civ.App., 1958, 310 S.W.2d 654.

This conclusion is strengthened by the instruction that, in connection with Issues 6 and 7, damages for physical pain, mental anguish and lost earnings could be allowed plaintiff by virtue of “conditions of her body” existing prior to the date of her treatment by defendant to the extent that such pre-existing conditions were aggravated by the leaving of the gauze pack in her vagina. This instruction was inserted after Special Issue No. 7 and was subject to the construction that the jury could award damages for the aggravation of a “condition”. The jury might have concluded that the chronic inflammation of the cervix and the persistent bleeding, with which plaintiff was shown to have been suffering prior to her treatment by the defendant, were “conditions” and that these conditions were aggravated by the leaving of the gauze pack in plaintiff’s vagina. This instruction authorized the jury to assess damages for the aggravation of these conditions without specific mention of “damage or harm to the physical structure of her body” or of proximate causation. It also authorized the jury to insert such amount as they found as damage resulting from such aggravation in their answer to Special Issue No. 6. In reconciling the answer made by the jury to Special Issue No. 3 with that made to Special Issue No. 6, it may be presumed that amount stated as damages was awarded by the jury because it found aggravation of existing “conditions of her body” by the leaving of the gauze pack.

“It will never be presumed that jurors intend to return conflicting answers, but the presumption is always to the contrary. Courts properly refuse to strike down answers on the ground of conflict, if there is any reasonable basis upon which they may be reconciled.” Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97.

Appellant also contends that the answer made by the jury to Special Issue No. 3 is supported by no evidence; is supported by insufficient evidence; and is contrary to the great weight and preponderance of the evidence. We have carefully considered all of the testimony and conclude that neither of these assignments of error can be sustained.

The judgment of the trial court is affirmed.


author: PRESLAR, Justice.

text:
    STATE of Texas, Appellant, v. EL PASO ELECTRIC CO. et al., Appellees.
    No. 5770.
    Court of Civil Appeals of Texas. El Paso.
    April 27, 1966.
    Rehearing Denied May 18, 1966.

      Waggoner Carr, Atty. Gen., W. O. Shultz, Hawthorne Phillips, Stanton Stone, J. E. Davis and Owen Wade Anderson, Asst. Attys. Gen., Austin, for appellant.
    Kemp, Smith, Brown, Goggin & White and J. Leighton Green, El Paso, for appel-lees.
   PRESLAR, Justice.

This is a suit brought by the State of Texas, the appellant, to escheat certain personal property held by appellee El Paso Electric Company, under the provisions of Article 3272a, Texas Revised Civil Statutes. The trial court heard the ease without a jury and entered judgment for the State for the items claimed by it, except for an item of $500.64 in unclaimed wages. As to the unclaimed wages, the court sustained appellee’s contention that limitations had barred the causes of action of the persons to whom these wages were owed and denied the State the right to escheat such wages. That portion of the judgment is the subject of this appeal.

Appellant’s point of error is:

“The trial court erred in holding that the statutes of limitations had barred the actions of the persons to whom the unclaimed wages are owed.”

In its petition appellant alleges that such wages were abandoned within the meaning of the escheat statutes, Articles 3272 and 3272a, R.C.S., and that same were “personal property (1) of which the existence and whereabouts of the owner are unknown and have been unknown to the holder for more than seven (7) years and (2) on which, from the knowledge and records of the holder it appears that no claim or act of ownership has been asserted or exercised during the past seven (7) years, * * * ” and setting out, by its attached “Exhibit C”, the persons to whom such wages were owing, the sums due, and the dates same were due and payable. Exhibit C shows that all of such sums were due and payable more than ten years prior to the institution of appellant’s suit. Appellee pleaded the two and four-year statute of limitations as to such wages. On the trial Irwin Lambka, the Assistant Treasurer of appellee, testified that any of the persons listed in Exhibit C of appellant’s petition as the owners of unclaimed wages who presented themselves at the office of appellee and requested payment of such wages would be promptly paid. Such testimony was given in response to questions by the attorney for appellant, and was not objected to by appellee. Appellant urges that such testimony amounts to a waiver or abandonment of appellee’s limitations plea. With that we do not agree, for the plea of limitations is that the claims are barred by the two and four-year statutes of limitations— that such claims are over two and four years old. The testimony is that the claims would be paid if request was made. The witness is not saying that the claims are not barred. His testimony is not that the claims are less than two and four years old. Thus, it is not a withdrawal or abandonment of the assertion that they are within the statutes of limitations. At best, it can be only an acknowledgment of the justness of the individual employee’s claim. As such, it fails to meet the requirements of Article 5539, Revised Civil Statutes, which provides:

“When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.”

That the action here “may appear” to be barred is not in doubt, for the basis of appellant’s action is that the claims are over seven years old, and its exhibit in support of such action shows all to be over ten years old. Both parties were contending that the wage claims were more than four years old, so there was no issue raised by the pleadings and the above is the only evidence on the subject except a further statement by Mr. Lambka that none of the listed employees had appeared and requested payment. We think the trial court was correct in holding the claims barred by limitations, and the appellant’s point of error is accordingly overruled.

The courts of this State have already determined that in a suit by the State to escheat unclaimed wages, the State cannot acquire any better right to enforce the claims than was possessed by the former owners, and if the claims are barred to the former owners, the State cannot acquire such property by escheat. Southern Pacific Transport Company v. State, 380 S.W.2d 123 (Tex.Civ.App.1964, wr. ref.); State v. Williamson-Dickie Manufacturing Co., Tex.Civ.App., 399 S.W.2d 568.

The judgment of the trial court is affirmed.


author: NORTHCUTT, Justice.

text:
    O. R. (Jack) ALLEN, Appellant, v. DEMPSTER MILL MFG. COMPANY, Appellee.
    No. 7606.
    Court of Civil Appeals of Texas. Amarillo.
    April 18, 1966.
    Rehearing Denied May 16, 1966.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant, Max Sherman, Amarillo, of counsel.
    Culton, Morgan, Britain & White, Amarillo, for appellee, Ray W. Richards, Amarillo, of counsel.
   NORTHCUTT, Justice.

This is an action brought by O. R. Allen against Dempster Mill Mfg. Company to re-cover wages under a written contract of employment. For convenience, Allen will be hereafter referred to as appellant and Dempster Mill Mfg. Company as appellee. Appellant had been an employee of appel-lee for several years as Branch Manager but had reached the age of retirement. Appellant had informed appellee that he did not want to retire. Appellee granted appellant a postponement of his retirement and entered into a written contract thereby employing appellant as Branch Manager for one year beginning December 1, 1963, and ending November 30, 1964. The contract provided it was subject to cancellation by either party upon written notice to the other party. Appellant was retired on June 30, 1964, and brought this suit to recover the compensation due him for the remaining five months of the contract.

The case was submitted to a jury upon two special issues. The first issue inquired if appellee gave appellant written notice that the employment contract in question was cancelled. The second issue inquired if appellee gave appellant oral notice that the employment contract in question was cancelled. The jury answered both issues “No.” Upon motion of appellee for a judgment non obstante veredicto the trial court entered judgment that appellant take nothing by his suit and that appellee go hence with its costs. From that judgment appellant perfected this appeal.

Appellant presents this appeal upon three assignments of error contending the court erred in granting appellee’s judgment for non obstante veredicto because the jury’s answers showed appellant was entitled to judgment; the court erred in overruling appellant’s motion for judgment on the verdict because the jury’s answer showed appellant was entitled to a judgment; and that the court erred in holding that there was no evidence to support the jury verdict for appellant.

Under the terms of the contract here involved either party had the right to cancel the contract by giving written notice to the other party. Appellant testified the ap-pellee had a retirement program and the normal retirement age in accordance with that program was sixty-five years. Appellant reached his sixty-fifth birthday on December 31, 1963. Appellee pleaded that appellee prior to June 30, 1964, orally notified appellant that the contract had been terminated and Mr. Dempster testified he came to Amarillo and told appellant that he was to be retired effective June 30, 1964. On July 3, 1964, appellant signed notice of his retirement stating his retirement would be in effect on June 30, 1964. Then just above his signature is the exact statement made by him as follows: “I understand that on the basis of the facts indicated above my retirement will become effective in accordance with the terms of group annuity contract.”

At all times thereafter appellant accepted each monthly retirement check. Certainly, appellant could not expect to receive his salary as provided under the contract and at the same time receive his retirement checks. We think under the undisputed record in this case appellant waived written notice of cancellation of the contract here involved and is estopped to insist upon requiring appellee to employ appellant for the remaining five months of the contract. It is stated in Foster v. L. M. S. Development Co., Tex.Civ.App., 346 S.W.2d 387 (N.R.E.) as follows:

“Ordinarily waiver and estoppel are fact questions, but if the evidence is undisputed as to the material facts, as they are in this case, waiver and estoppel may be established as a matter of law. Dallas Farm Machinery Co. v. Minneapolis-Moline Co., Tex.Civ.App., 324 S.W.2d 578, 581; Masterson v. Bouldin, Tex.Civ.App., 151 S.W.2d 301, 305; 43-B Tex. Jur. 491; 31 C.J.S. Estoppel § 163 p. 461.”

See also Blalock v. Jones, Tex.Civ.App., 1 S.W.2d 400 (error dismissed); Kennedy v. McMullen, Tex.Civ.App., 39 S.W.2d 168 (error ref.); General Finance And Guaranty Company v. Smith, Tex.Civ.App., 309 S.W.2d 531 (N.R.E.).

Appellee pleaded appellant was estopped to contend that he was not retired. Appellant’s retirement was to take effect on June 30, 1964, and his first monthly retirement payment began July 1, 1964. Appellant having signed the above-mentioned statement showing his retirement was effective on June 30, 1964, and having received and accepted the monthly retirement checks since that time, we think appellant has waived his right to recover his salary after June 30, 1964, under the terms of the contract here involved and is estopped to make such claim. We overrule each and all of appellant’s points of error.

Judgment of the trial court is affirmed.


author: DAVIS, Justice.

text:
    Alva FITZGERALD et al., Appellants, v. Floy AGNEW, Appellee.
    No. 7733.
    Court of Civil Appeals of Texas. Texarkana.
    April 12, 1966.
    Jack G. Kennedy, Slagle & Kennedy, Sherman, for appellants.
    Buster Cole, Cunningham, Cole & Southerland, Bonham, for appellee.
   DAVIS, Justice.

This is a suit where petitioners-appellants, Alva Fitzgerald and Grady Twyman, offered for probate an instrument alleged to be a codicil to the original will of Joan Agnew, deceased. Respondent-appellee, Floy Agnew, contested the probate thereof. The case originated in the County Court of Fannin County, and the transcript does not show that the appeal was duly perfected from the County Court to the District Court. The case was tried in the District Court, without a jury. The trial court, after hearing the evidence, found, as a fact, that the instrument that was alleged to be a codicil was not testamentary and denied the probate thereof. The issue of fact was raised by the pleadings that the instrument was not testamentary, and was decided adversely by the trial court. Appellants have perfected their appeal and bring forward one point of error.

By their point, appellants say the trial court erred in ruling that the instrument, dated May 7, 1961, offered for probate was not testamentary in character, and therefore is not entitled to be probated as a codicil to the will of Joan Agnew which was dated January 4, 1955.

The wills, and the instrument are quoted verbatim. The will reads as follows:

“Jan. 14, 1955
“I want my sister, Floy Agnew, to have any properties I may leave at my death. This consists (at present) of farm, stocks in bank box, savings, checking acct., retirement, insurance, clothes and material things.
/s/ Joan Agnew
No
Return on Northwestern Ins.
I appoint my sister, Floy Agnew, to be sole executor of my will, without bond.
/s/ Joan Agnew
June 2, 1955
Joan Agnew Will”
The instrument reads as follows:
“My will.
I have a will made out wholly to Floy. Thats all right but I want the stock dividends, farm income, etc. divided with Alva. She has been brave. Floy doesn’t need it. Help Bonnie too, another brave one.
The farm can go to Grady, any time eventually his boys.
Joan Agnew
May 7, 61”

A codicil to a will is described in 61 T.J.2d 222, Sec. 105. It must be something that is supplemental to an earlier instrument. It may add to or modify the provisions of the will or it may revoke one or more of the earlier provisions of the writing. As can be seen by the two instruments hereinabove copied, the second instrument in no wise revokes or adds to any of the original will. It merely expresses the wish or desire of the testator and does not give anything specifically to anyone else. A subsequent instrument that is executed as a codicil is inoperative for lack of formality in its execution unless it certifies the testator’s intentions. 95 C.J.S. Wills § 625, p. 880. The instrument that was offered for probate when construed with the original, creates some ambiguity. Such a rule does not call for such a conclusion where the ambiguity arises alone from the language used. 95 C.J.S. Wills § 586, p. 709. The appellants plead and proved that the original will of Joan Agnew had been probated. They are merely seeking to probate the instrument which they allege to be a codicil. It seems that Joan Agnew, as a matter of law, intended that her property pass and be vested by the provisions of the original will. The second instrument was merely expressing her wish and desire. Hinson v. Hinson (1955), 154 Tex. 561, 280 S.W.2d 731; Hohmann v. Langehennig (CCA 1941), affm’d Tex.Comm.App.1942, 1939 Tex. 452, 163 S.W.2d 402, Op.Adpt. by Sp.Ct.

The issues of fact were raised by the pleadings. No statement of facts or findings of fact or conclusions of law were filed in this appeal. We must presume that the trial court made the findings of facts according to the evidence. Rule 386, Vernon’s Ann.Texas Rules of Civil Procedure; Trinity Steel Company, Inc. v. Modern Gas Sales & Service Co. Inc., (CCA 1965), 392 S.W.2d 861, W.R., N.R.E.; Bute et al. v. League City, Texas (CCA 1965) 390 S.W.2d 811, N.W.H.; Franke v. Franke (CCA 1963) 373 S.W.2d 891; Jennings v. Fredericks et al. (CCA 1945) 190 S.W.2d 707, E.R. The point is overruled.

The judgment of the trial court is affirmed.


text:
    Tony ROSAS, Appellant, v. Bill DOREEN, Appellee.
    No. 16710.
    Court of Civil Appeals of Texas. Dallas.
    March 25, 1966.

      Fred Time, Marks, Time & Aranson, Dallas, for appellant.
    John Allen Curtis, Harrison, Curtis & Cooper, Dallas, for appellee.
   BATEMAN, Justice.

The appellant Tony Rosas brought this suit against appellee Bill Doreen for damages on account of bodily injuries sustained by appellant when he fell on a sidewalk alleged to have been made dangerous by appellee’s construction work near the sidewalk. The court rendered summary judgment for appellee, and appellant presents three points of error on appeal.

The first point is that the court erred in granting the summary judgment on the theory that this was a “slip and fall” case, whereas appellee’s liability had been alleged as being based on “the negligence per se theory.” We do not find anything in the record before us to indicate on what particular theory or doctrine the summary judgment was rendered. The motion was bottomed on allegations that the condition of the sidewalk where appellant fell was open and obvious, that the dangers involved and the possibility of injury were patent, and that appellant voluntarily and with full knowledge and appreciation of the dangers and risk involved entered into a situation fraught with obvious danger. The judgment itself did not indicate on what theory or doctrine it was rendered. The first point is therefore overruled.

By his second point of error appellant says that the court erred in entertaining the motion for summary judgment “attacking Appellant’s Second Amended Original Petition,” because prior to the hearing appellant filed his Third Amended Original Petition, to which appellee’s motion and “attacks” were inapplicable. The motion for summary judgment did not “attack” any pleading. It merely referred to the Second Amended Original Petition as having described or alleged the condition of the property where appellant fell, and also contains this allegation: “Further, as set forth in Plaintiff’s Second Amended Original Petition and depositions as contained in the record, Plaintiff fully recognized and appreciated the dangers and the risk involved.” Appellant’s pleadings will be further discussed in our disposition of the third point of error. The second, as worded, presents no reversible error and is overruled.

Appellant’s third point of error asserts that the pleadings and affidavit of appellant presented an issue of fact, and that it was therefore error to grant the summary judgment. This necessitates a careful survey of the state of the pleadings and the evidence presented to the court at the hearing of the motion.

First, however, we should consider the rules applicable to summary judgments. Rule 166-A, Vernon’s Texas Rules of Civil Procedure, authorizes such judgments only when it is shown that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. The movant must carry the burden of establishing the absence of any such issue; and in determining whether this burden has been carried the court must disregard all conflicts in the evidence and view the evidence in the light most favorable to the party opposing the motion, accepting as true all evidence which tends to support his position and resolving all doubts as to the existence of a genuine issue of a material fact against the movant. If the motion involves the credibility of af-fiants or deponents, or the weight of their statements, or a mere ground of inference, the motion should be denied. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., Tex.Sup.1965, 391 S.W.2d 41, 47.

Appellee’s motion for summary judgment is unsworn, and he presents no evidence in any form in support thereof, relying wholly upon the allegations of appellant’s Second Amended Original Petition. (He mentions “depositions as contained in the record,” but we find no depositions in the record before us.) In the Second Amended Original Petition, after alleging his injuries resulting from “an uncovered and unprotected upheaval caused by construction work being conducted at a building * * ” and the failure of appellee to maintain any sort of warning, there was the following paragraph:

“HI.
“Plaintiff would show that he had just completed eating at the Taco Village, 2911 McKinney Street, Dallas, Texas, when he began walking West on McKinney on the North side of the sidewalk. When he reached the 2700 block of McKinney Street, Dallas, Texas, he observed an area of construction, and that he did see an upheaval of concrete, but from all indications it appeared as though he could safely cross the unguarded area; that he cautiously stepped through the maze of broken concrete, until one seemingly secure piece caved under his weight; that the turning, twisting and caving of this concrete, caused Plaintiff to suddenly and abruptly, fall to the ground. Plaintiff says that the absence of barricades and warning signs encouraged him to proceed; that he was lulled into a sense of security.”

After the filing of the motion for summary judgment, appellant filed his Third Amended Original Petition, substantially the same as the Second except that Paragraph III was changed to read as follows:

“Plaintiff would show that he just completed eating at the Taco Village, 2911 McKinney Street, Dallas, Texas, when he began walking West on McKinney Street on the North side of the sidewalk. When he reached the 2700 block of McKinney Street, Dallas, Texas, he observed an area of recent construction, and from all indications it appeared as though he could safely cross the unguarded area; that he walked safely over the concrete, when a piece of concrete, not visible to Plaintiff, turned and twisted causing Plaintiff to suddenly and abruptly fall into a latently, unseen hole. Plaintiff says that the absence of barricades and warning signs encouraged him to proceed; that he was lulled into a sense of security by absence of any warning sign.”

Appellant also filed an affidavit in opposition to the motion for summary judgment in which he alleged that he had read his Third Amended Petition and swears that it is true and that “the condition of the property was not open and obvious to all, neither was it open and obvious to myself in that it seemed I could safely cross the unguarded area. Furthermore, I did not recognize or appreciate the dangers and the risk involved in that, I was lured (sic) into a sense of security. I did not believe there would be danger involved and the possibility of injury was latent. Furthermore, I did not have full knowledge of the danger or risk involved when I entered the area of construction.”

The affidavit contains a number of legal conclusions, which we shall not consider. Rule 166-A (e), T.R.C.P. However, it contains sufficient statements of fact, to which appellant could have testified, to cause us to doubt seriously that the appellee has carried the burden of establishing the absence of a genuine issue of material fact.

As stated, appellee offered nothing to buttress his motion except certain statements contained in appellant’s Second Amended Original Petition.

“As long as the pleading remains unamended or the admission stands unre-tracted, the fact alleged or admitted, for the purposes of the case, is accepted as true by the court and jury and binding on the party making it, i. e. he cannot introduce evidence to contradict it.” McCormick & Ray, TEXAS LAW OF EVIDENCE, § 1127, p. 25, citing Hardy v. De Leon, 5 Tex. 211, 243.

However, it is also true that “when a pleading has been abandoned, superseded, or amended, it ceases to be a judicial pleading, and therefore ceases to be a judicial admission. It follows that any admission contained in an abandoned pleading ceases to be binding on the pleader, in the sense that he is prevented from disproving facts alleged therein. Such pleading, however, still remains a statement seriously made, and it can be introduced in evidence as an admission.” Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 729. Here, the petition in question was amended.

Therefore, since appellant is not precluded from disproving the facts alleged in the very pleading which appellee says is sufficient in itself to establish his defense as a matter of law, it necessarily follows that the case is not ripe for decision until it is determined to what extent, if any, appellant will disprove those facts. We do not have here a situation in which the amended petition was filed after the hearing of the motion for summary judgment and when the court had the motion under advisement, as in McCormick v. Stowe Lbr. Company, Tex.Civ.App., 356 S.W.2d 450, wr. ref. n. r. e. Here, the third amended petition was filed just five days after the motion for summary judgment was filed and twenty-two days before the hearing thereof.

Appellee says that the trial court was duty bound to consider appellant’s last pleading, Schepps v. American Dist. Tel. Co., Tex.Civ.App., 286 S.W.2d 684, 688, no wr. hist., and that the determination of the motion for summary judgment should extend to the entire record as it exists at the time of the hearing, Burnett v. Cory Corp., Tex.Civ.App., 352 S.W.2d 502, wr. ref. n. r. e. We agree, but in our view, if appellant should be considered bound by the allegations of either his Second or his Third Amended Original Petition, all that can properly be said thereof is that he admitted that he observed an area of construction, that he saw an upheaval of concrete, but that from all indications it appeared as though he could safely cross the unguarded area; that he cautiously stepped through the maze of broken concrete, until one seemingly secure piece caved under his weight. Such admissions, standing unaided, are not in our opinion sufficient to establish an absolute defense for appel-lee under the doctrine of volenti non fit in-juria. Halepeska v. Callihan Interests, Inc., Tex.Sup.1963, 371 S.W.2d 368; Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172.

In holding, therefore, that the court erred in granting the summary judgment, we are not to be considered as making any holding or finding as to the sufficiency of evidence that may be introduced on the trial of the case on its merits, but only that in our opinion, in view of the record before us, there is reasonable doubt as to whether appellee has carried the burden of proof placed on him by Rule 166-A, T.R. C.P., to establish the absence of any genuine issue of material fact.

The judgment is reversed and the cause remanded for trial.

Reversed and remanded.