author: SELLERS, Justice. DUNAGAN, Chief Justice

text:
    J. Alton MILLS, Appellant, v. Robert Franklin BARTLETT et al., Appellees.
    No. 68.
    Court of Civil Appeals of Texas. Tyler.
    March 6, 1964.

      W. Ernest West, Canton, for appellant.
    Wynne & Wynne, Wills Point, William C. Elliott, Jr., Canton, Enoch Fletcher, Grand Saline, for appellees.
   SELLERS, Justice.

This suit is brought by J. Alton Mills in the District Court of Van Zandt County, Texas, against the Democratic Executive Committee of Van Zandt County, its chairman, L. F. Sanders, each individual member thereof, and Robert Franklin Bartlett, praying for a restraining order to restrain the Executive Committee from placing the name of appellee, Robert Franklin Bartlett, on the Democratic ballot as a candidate for County Attorney and/or Criminal District Attorney for Van Zandt County, Texas, to be held on May 2, 1964, for the alleged reason that Robert Franklin Bartlett could not meet the residence requirements of Article 1.05 of the Election Code, as amended by Acts 1963 of the 58th Legislature, page 1017, Chapter 424, V.A.T.S., for candidates for public office at the Democratic Primary, May 2, 1964. From an order denying the injunctive relief, appellant appealed.

The provisions of Article 1.05 of the Election Code provide that, before a candidate can have his name placed upon the official ballot for the office of County Attorney and/or Criminal District Attorney of Van Zandt County, the candidate must have resided in Van Zandt County for at least six months preceding the date of the primary election.

Appellant J. Alton Mills and Appellee Robert Franklin Bartlett are both candidates for the office of County or District Attorney of Van Zandt County in the Democratic Primary election to he held on May 2, 1964.

The only witness to testify in the hearing in the trial court was the Appellee, Robert Franklin Bartlett. By agreement of the parties, however, his testimony was corroborated by the County Attorney of that county, who is one Mr. Grisham and who is now the present County Attorney. Upon trial before the court, without a jury, the application for the injunction was denied, and the appellant has duly prosecuted his appeal to this court.

The majority of this court is of the opinion that there are facts in the record which authorize and support the trial court’s findings that Robert Franklin Bartlett was a resident of Van Zandt County from October, 1963, and for that reason was entitled to have his name placed upon the official ballot.

Bartlett, as the undisputed facts show, for several years has been a student at Baylor University, his parents residing in Marshall, Texas. Bartlett obtained his college degree in November, 1963, took the bar examination, and passed the same. He is now 27 years of age, single, and is at the present time Assistant County Attorney of Van Zandt County.

Under the present election code, in order for Bartlett to be a candidate for the office of County Attorney of Van Zandt County, he must have resided there for six months prior to the primary election in 1964. It is the contention of J. Alton Mills, the appellant in this court, that Bartlett could not qualify because he did not become a resident of Van Zandt County until some time around the 16th of December. In other words, there is a month or six weeks lacking in the residential requirement according to the appellant. With this, the court does hot agree.

Under Article S.08 of the Election Code, a student in a university does not acquire legal residence there unless he does something other than attend that particular college; therefore, it is not contended here that Bartlett was a resident of Waco where he attended college. While in college, and after he had taken the bar examination and was in the process of securing his degree from Baylor University, and after learning that there was a vacancy for an Assistant County Attorney in Van Zandt County, Bartlett went to Van Zandt County in person and contacted the County Attorney and before leaving Van Zandt County made a trade with the County Attorney to become Assistant County Attorney of that county and joined with him in the private practice of law immediately upon receiving his license. At this same time, and while in Van Zandt County, he discussed with the County Attorney the need to make Van Zandt County his residence on that date in order that he might qualify for a position on the ballot for the office of County Attorney in 1964, because Mr. Grisham had told him that, in view of his health, he would not be a candidate. This took place in October, 1963, in ample time for him to have six months residence in that county. He expressed his intention at that time of making Van Zandt County his residence from that very date.

This expressed intention, together with the act of coming to Van Zandt County and entering into a contract to work there and commence his career in the practice of law, intending to return only temporarily to. Waco to finish his college course, constitutes, some evidence of probative force upon the question of whether he established his residence in Van Zandt County. Since intent and actual presence in a county is all that is required to establish one’s residence, the court thinks the facts in this case are ample to support the trial court’s judgment.

Certainly it is stronger than the facts in the case of Linger v. Balfour, Tex.Civ.App., 149 S.W. 795, wherein the court held that an unmarried university student during a vacation went to a particular town and declared his intention of becoming a resident thereof, and went from the university to that place to vote, sufficiently shows that he resided therein.

In Corpus Juris Secundum, Vol. 77, Residence, p. 297, we find this holding:

“While bodily presence is regarded as one of the elements of residence, the length of the period of bodily presence, however short, is of no consequence, provided the concurring intent is established by other evidence, for the question of residence, in its legal signification, is not necessarily dependent on the length of time spent in a particular place, for any time, however short, when coupled with an intent, will be sufficient. When the necessary intent is not established by other evidence, then the period of bodily presence may become an important factor in determining whether the requisite intent does or does not exist.”

The term “residence” is an elastic one, and difficult of precise definition. The sense in which it should be used is controlled by reference to the object. Its meaning is dependent upon the circumstances then surrounding the person, upon the character of the work to be performed, upon whether he has a family or a home in another place, and largely upon his present intention. Owens v. Stovall, Tex.Civ.App., 64 S.W.2d 360.

The testimony of a witness as to his intention is, of course, not necessarily controlling. It is, however, an element which may be considered by the authority authorized to determine fact issues — the jury or the trial judge. McBride v. Cantu, Tex.Civ. App., 143 S.W.2d 126.

When we view the evidence on appeal from judgment in a case tried without a jury, the Court of Civil Appeals must view evidence in the light most favorable to the trial court’s findings and sustain them if there is evidence of probative force, reasonably tending to support them in record. Bray v. Peden, Tex.Civ.App., 213 S.W.2d 469. If the evidence is sufficient, and we believe that it is, to raise a fact issue, on whether Bartlett established his residence in Van Zandt County in October, then his temporary absence from the district would not disqualify him if his intention was to return. Jordan v. Overstreet, Tex.Civ.App., 352 S.W.2d 296. In the case of McBeth v. Streib, Tex.Civ.App., 96 S.W.2d 992, the following principles of law are announced:

“In any event, it is well settled, we think, that the question of one’s residence in this state is distinctly one of intention and of fact. * * *
“The presumption, of course, obtains here, as generally in this state, that every man has the right and privilege of fixing his residence according to his own desires. This applies to single men as well as married men, though it is a matter of common knowledge that single men do change their places of residence more frequently than married men. That fact, however, does not change or take away their definite legal rights, if, as, and when they comply with the law and acquire same under a change of residence or otherwise.”

Under the above and foregoing authorities, it is the opinion of the court that the trial court’s judgment should be affirmed.

On account of the emergency, due to the near approach of the time for printing the ballots for the May primary, the parties hereto will be denied the right to file a motion for rehearing.

DUNAGAN, Chief Justice

(dissenting).

I find myself unable to agree with my brethren to an affirmance of this case.

This suit is brought by J. Alton Mills in the District Court of Van Zandt County, Texas, against the Democratic Executive Committee of Van Zandt County, its chairman, L. F. Sanders, each individual member thereof, and Robert Franklin Bartlett, praying for a restraining order to restrain the Executive Committee from placing the name of appellee, Robert Franklin Bartlett, on the Democratic ballot as a candidate for County Attorney and/or Criminal District Attorney for Van Zandt County, Texas, to be held on May 2, 1964, for the alleged reason that Robert Franklin Bartlett has not met the residence requirements of Article 1.05 of the Election Code, as amended by Acts 1963 of the 58th Legislature, page 1017, Chapter 424, for candidates for public office at the Democratic primary, May 2, 1964. From an order denying the injunc-tive relief, appellant appealed.

The provisions of Article 1.05 of the Election Code are as follows :

“No person shall be eligible to be a candidate for, or to be elected or appointed to, any public office in this state unless he shall be eligible to hold such office under the Constitution and laws of this state, and unless he is a citizen of the United States and shall have resided in this state for a period of twelve months next preceding the date of any primary, general or special election at which he offers himself as a candidate or next preceding the date of his appointment, as the case may be, and for any office which is less than state-wide, shall have resided for six months next preceding such election in the district, county, precinct, municipality or other political subdivision for which the office is to be filled; provided, however, that the foregoing residence requirements shall not apply to any office for which the Constitution or statutes of the United States or of this state prescribe residence qualifications in conflict herewith, and in case of conflict the provisions of such other laws shall control. No ineligible candidate shall ever have his name placed upon the ballot at any primary, general or special election; and no ineligible candidate shall ever be voted upon nor have votes counted for him at any such primary, general or special election. No person who advocates the overthrow by force or violence or change by unconstitutional means of the present constitutional form of government of the United States or of this state, shall be eligible to have his name printed on any official ballot in any general, special or primary election in this state. As amended Acts 1963, 58th Leg., p. 1017, ch. 424, § 4.”

Appellant contends that appellee Robert Bartlett will not have been a resident citizen of Van Zandt County, Texas for the six-months period next preceding the primary election date on May 2, 1964, as required by Art. 1.05 of the Election Code, and therefore is not eligible to have his name placed on the ballot as a candidate for county and/or district attorney of Van Zandt County in such election.

The office which is involved in this appeal is referred to in the record as county and/or district attorney. In this opinion I will refer to it as county attorney.

Appellant, J. Alton Mills, and appellee, Robert Franklin Bartlett, are both candidates for the office of county and/or district attorney of Van Zandt County in the Democratic primai’y election to be held on May 2, 1964.

The only witness to testify on the hearing in the trial court was appellee Robert Franklin Bartlett. His testimony reflects that he is single and 27 years of age, and for the last few years has been a law student at Baylor University in Waco, Texas. Prior to entering Baylor University he resided with his parents at 1902 Garrett Street in Marshall, Texas, and continued to reside there until he entered military service and since has either been in military service or attending Baylor University as a student of law. He took the Bar examination in Austin, Texas on October 7, 8, and 9, 1963. He expected to graduate from Baylor University Law School in November, 1963, and to receive his license to practice law in this state shortly thereafter. While he was taking the Bar examination he heard that Van Zandt County was desiring to interview young lawyers. About a week later, which was about the middle of October, 1963, he went to Van Zandt County and talked with Mr. Grisham, who was county attorney for said county, about being appointed assistant county attorney. At that time he and Mr. Grisham entered into a tentative arrangement or agreement wherein Bartlett would finish law school and then return to Van Zandt County to be appointed assistant county attorney. They also worked out a partnership agreement as far as civil matters were concerned. Mr. Bartlett returned to Baylor University where he continued to maintain an apartment where he lived and slept and finished his legal education. He received his license to practice law in the State of Texas around December 1, 1963, and was sworn in on or about December 10, 1963. On September 1, 1963, Mr. Bartlett filed his application to take the Bar examination and gave as his address 1902 Garrett Street, Marshall, Texas, and he gave this same address for his license to be mailed to him. After having been sworn in as an attorney on or about December 10, 1963, he returned to Van Zandt County, had further conversation with Mr. Grisham, County Attorney, and also the County Judge, concerning his appointment as assistant county attorney. On December 16, 1963, he was appointed as assistant county attorney for Van Zandt County and on the same date rented a room in Canton, the county seat of the county.

Mr. Bartlett testified that upon his first visit and meeting with Mr. Grisham in October, 1963, he then at that time formed an intention to make Van Zandt County his residence which intention was so formed apparently for the sole purpose of meeting the residence requirements of Article 1.0S of the Election Code as a candidate for county attorney of Van Zandt County in the primary election to be held on May 2, 1964. We quote testimony of Mr. Bartlett as follows:

“Q Let me ask you this, Bob: When you and Mr. Grisham were discussing this matter back in October, did you also discuss your qualifications:
“A Yes
“MR. WEST: We object to that, your Honor, the discussion of qualifications. He can state the facts that bear on his qualifications but not his discussion with a witness who is not present in the room.
“Q I am talking about your residential qualifications.
“A Yes we did.
“Q Were you aware of the Statutes that these gentlemen are talking about ?
“A Yes, I was.
“Q Was Mr. Grisham aware of that Statute?
“A Well, no he was not when I first talked to him.
“Q Then what did you all do about it? ’
“A Well, the Statute has amended the old Statute, if I might explain my answer, your Honor.
“Q As to what you and Mr. Gris-ham were talking about, that is what the Court wants to know.
“A The old Statute did not refer to a residence of six months as to primary elections. It referred to general or special elections. As amended the Statute appears to read primarily for a six month residence requirement, if that is the case. I don’t believe there is any case law on it so far. At that time I told Mr. Grisham about this, and we decided that something had to be done, and we decided that at that time my residence and intentions would be Van Zandt County as of the time of that conversation.”

It is the contention of the appellees that Mr. Bartlett established his residence in Van Zandt County in October, 1963, by virtue of his forming his intention at that time to make said county his residence and entering into a tentative agreement with Mr. Grisham to be appointed as assistant county attorney upon his being licensed to practice law in this state.

Appellant contends that Mr. Bartlett did not establish residence in Van Zandt County until December 16,1963, when he was appointed county attorney for said county and rented a room in Canton.

If Mr. Bartlett established his residence in Van Zandt County in October, 1963, he meets the requirement of residence under Article 1.05 of the Election Code, but if he did not establish residence in Van Zandt County until December 16, 1963, he does not meet the residence requirement of Article 1.05.

Mr. Bartlett gave the following testimony on the trial of this cause:

“Q Mr. Bartlett, you haven’t claimed your residence in Canton or in Van Zandt County until you were employed in that capacity and rented your room from Mrs. Foster, is that right?
“A No, that is incorrect.
“Q Up until December 10, where have you been calling your headquarters or your home, and where were you sleeping?
“A Well, I was sleeping in Waco, Texas, while I was finishing school. I was at that time considering Canton, Van Zandt County, to be my residence.
⅜ ⅜ * * ⅜ *
“Q I believe you did say that you had your apartment in Waco up until about December 1.
“A When I graduated. I had it up until the time or about a week after I graduated from law school, that is correct.
“Q And you kept that as your residence up until about the 1st of December.
“A What do you mean by my residence ?
“Q Where were you sleeping?
“A I was sleeping at that apartment while I was in school, yes.
“Q And I asked you if you had had an apartment or room or place where you slept in Van Zandt County prior to December 1, 1963.
“A A place where I slept ?
“Q Yes sir.
“A No sir I did not.
******
“Q You said you hadn’t been paying for a place to sleep. You didn’t have a place where you were sleeping that you were not paying for either, did you?
“A No, at that time I had no reason to have a regular place here, that is correct.
“Q And you didn’t have until you had your understanding or agreement with the County Attorney and with the Commissioner’s Court, you had no point to having a place to sleep in the County, did you?
“A I was still in school. I was residing elsewhere.
******
“Q Mr. Bartlett, let me ask you if you didn’t make an agreement with the Commissioner’s Court on December 16, 1963.
“A I believe that was the date of the appointment, yes sir.
“Q Was that the date or the next day that you rented the room at Mrs. Foster’s.
“A I just will say around that period, Mr. West, I don’t remember the exact date.
“Q You don’t know which? You could have known of any reason why you should be here until after you had made your trade with the Commissioner’s Court and the County Attorney.
“A Well, no, I had planned on when I graduated from law school that I would come here and work for Mr. Grisham in the District Attorney’s office.
“Q And that plan was put into effect and you came here to make your place of residence after you made that agreement with mr. Grisham and the Commissioner’s Court?
“A Now, the Commissioner’s Court and the County Judge * * * that was the 1st of December, yes.
“Q First of December or the 16th?
“A Well, the 16th, if that is the date, yes sir. I think it is of record. It is on the record.
“Q And before that time you had no reason to call Van Zandt County your home? You weren’t sleeping in Van Zandt County as your headquarters prior to that time, were you.
“A No, I was not sleeping in Van Zandt County.
“Q In fact you had no room or apartment or residence to sleep in in Van Zandt County, and made no arrangements about that prior to December 16th, had you?
. “A Along about that time, no sir.
******
“Q But your actual place of residence, where you were staying and where you were sleeping up until December, the first week in December, was in Waco, was it not?
“A While I was in school, yes sir.
⅝ ⅝ ⅜ ⅜ ⅜ ⅜
“Q And your first actually living, actually sleeping and having a place to go when the day’s work was done, that began December 16, after you secured your appointment with the county.
“A If that was when I rented the room from Mrs. Foster, that would be correct.”

A residence is established by a personal presence in a fixed and permanent abode with intention of remaining there. The fundamental element necessary to create a residence in a particular place is actual bodily presence in the place combined with a freely exercised intention of remaining there permanently or for an indefinite time without any present intention to remove from the same. Harrison v. Chesshir, et al., Tex.Civ.App., 316 S.W.2d 909.

The Supreme Court of Montana, in the case of Snyder v. Boulware, 109 Mont. 427, 96 P.2d 913, had before it the question of whether Boulware, at the time he became a candidate for County Commissioner, had been a resident of the district for a sufficient length of time as required by Subdivision 5 of Section 4, Article 16 of the Constitution of Montana which, in providing for the election of county commissioners, provides:

“That no one shall be elected as a member of said board, who has not resided in said district for at least two years next preceding the time when he shall become a candidate for said office.”

The Constitution of Montana, as above quoted, is very similar to Section 1.05 of the Election Code of Texas. The court in its opinion said:

“The object to be accomplished by that section was to disqualify those who were not familiar with the needs of the particular section of the county. To accomplish the purpose of the section, the word ‘resided’ must he held to mean an actual living in the district. * * *
“One’s intention to locate at a particular place does not become effective to establish his residence there until he is physically present at such place. 17 Am.Jur. sec. 19, p. 603, says in part: ‘To acquire a domicile of choice in a place, a person must be physically present there, and the residence at the place chosen must be actual.’ There is no claim that contestee actually lived in Whitehall before November 14, 1936. His claim is that he announced the intention of making Whitehall his residence as early as March, 1936, and took steps looking to the purchase of a home there at that time. If one leaves his place of residence with the intention of •making his home in another place, he •is, while in itinere from the old to the new, a resident of the place he had left, and remains so until he reaches the new abode.”

The court further cited a number of authorities in support of its holding. The ■court said in its opinion:

“The contestee’s intention to locate in Whitehall as early as Saint Patrick’s Day in March, 1935, is made quite clear. But under all the authorities, in order to abandon a residence and acquire a new one, the intention must be combined with the act, and there was no clear act on the part of the con-testee to locate at Whitehall until November 14, 1936, which was five days short of a two-year period prior to his election.”

The same contention was made in the Montana case above cited as is made in this case and I think the law as expressed in the Montana case is applicable to the case before us.

It is clear that the agreement Bartlett and Grisham entered into in October, 1963, for Bartlett to become assistant county attorney was subject to and contingent on his passing the Bar examination and receiving his law license authorizing him to practice law in this state, because otherwise he would not have been qualified to accept such appointment.

At the time of the meeting of Bartlett with Grisham in October, 1963, at which time a tentative agreement was reached to appoint Bartlett assistant county attorney, he (Bartlett) was not residing in Van Zandt County permanently or temporarily. At most, there was an intention to become a resident of the county and that subject to contingencies of passing the Bar examination and receiving his license to practice law in this state. I do not think a place of residence can be acquired by intention alone. The situation is not at all analogous to that which would have been presented if Bartlett had previously resided in Van Zandt County and moved out of the county. In that case, intention or not to abandon the home — permanent place of residence— would have been material. Intention alone to acquire or create a new residence is, in advance of any character of actual residence, use or preparation, wholly immaterial and ineffective. Prince, et al. v. Inman, Tex.Civ.App., 280 S.W.2d 779; Major, et al. v. Loy, Tex.Civ.App., 155 S.W.2d 617. A person’s residence is ordinarily determined by his intention, coupled with overt acts evidencing such intention. United Services Automobile Association v. Harman, et al., Tex.Civ.App., 151 S.W.2d 609.

Now, it is elementary that, to effect a change of one’s legal domicile, two things are indisputable: first, residence in the new locality; and second, the intention to remain there. The change cannot be made, except facto et animó. Both are alike necessary. Either without the other is insufficient. Welsh v. American Surety Company of New York, et al., United States Court of Appeals, Fifth Circuit, 186 F.2d 16. (Texas case.)

To accomplish a change of either domicile or residence, there must not only be the intention to establish a new place of abode, but also the further fact of actual physical removal thereto and living in or on the established new home. The intention of making a new home, a place of abode or dwelling, without actually moving and living therein, although legally designated as one’s exempt homestead, does not in fact constitute such place as one’s domicile or residence. The term “permanent residence” signifies a party’s permanent home, a settled and fixed abode, where the party has established himself therein by bodily presence, with the intention to make such place his domicile, or permanent residence. Switzerland General Insurance Co. v. Gulf Insurance Co., Tex.Civ.App., 213 S.W.2d 161.

One’s residence must be actual, and determined by actual facts, and not by the intention of the voter. Savage v. Umphries, Tex.Civ.App., 118 S.W. 893.

The' intention of a person is to be considered in determining his residence under the election statutes where he seeks to vote outside the place of his actual physical residence, but the declaration of such intention by a person denied the right to vote is not conclusive of the question. McWhorter v. Reynolds, Tex.Civ.App., 156 S.W.2d 312.

While declarations are generally admissible to show residence, such declarations are not controlling if the actual facts and circumstances justify a contrary conclusion. Stratton v. Hall, Tex.Civ.App., 90 S.W.2d 865.

Linger v. Balfour, Tex.Civ.App., 149 S.W. 795, is cited in the majority opinion in support of the holding that Bartlett established his residence in Van Zandt County in October, 1963. In this case the voter whose vote was questioned, during a vacation went to Vega, Texas; while there declared his intention of becoming a resident and stayed for a short time, went from there to the University of Texas at Austin and was in the law department of the University of Texas, then went from Austin to Vega to vote in the general election. He was a single man. He testified that he had resided in Vega, Oldham County, more than six months and in the state more than twelve months preceding November 8, 1910, when he voted. This voter was actually bodily present in Vega and while staying there he freely exercised his intention of becoming a resident and remained there for a short time thereafter. In the case at bar Bartlett was in Van Zandt County in October, 1963, but a few hours and did not remain there even over night, but returned to Waco. He did not return to Van Zandt County until December 16, 1963. He testified that from October, 1963 until December 16, 1963, he had resided elsewhere and this is undisputed by all the testimony in the case.

Here, there is an attempt by a man to establish residence in Van Zandt County as of October, 1963, solely on his intention to do so as a result of reaching a tentative agreement with Mr. Grisham to be appointed assistant county attorney for the county at some indefinite time in the future and that contingent on his receiving his law license to practice law, which was necessary for him to qualify for such appointment, without his personal presence in a fixed and permanent abode with the intention of remaining there, which the court in Harrison v. Chesshir, supra; Switzerland General Insurance Company v. Gulf Insurance Company, supra; Welsh v. American Surety Company of New York, supra, said was necessary to establish residence. Moreover, there is no evidence in the record that Bartlett intended to make Van Zandt County his residence if he failed to obtain his license to practice law. Mr. Bartlett’s testimony in this respect is as follows:

“Q And you don’t mean to say that you had a definite and a fixed plan to come to Canton until after you had taken your Bar Exam and gotten your law license.
“A I had taken the Bar Examination the first part of October, sir.
“Q I say until your got your law license.
“A Well, I would have gotten my law license and knew I would get my law license the same time I graduated from law school.
“Q But you were not eligible to begin working until your law license was issued.
“A That is correct.
“Q And you were sworn in as an attorney.
“A That is correct.
"Q And you were sworn in as such attorney on December 10, 1963.
“A I believe that is the correct date.
“Q And that was the first day that you should be eligible to make a definite contract with anybody for the practice of law, is it not?
“A Yes sir.”

We do not have before us the question of what is necessary to maintain a residence after once being established, but at what time was there a residence established in Van Zandt County by Mr. Bartlett. The question is did Bartlett establish his residence in Van Zandt County during his short visit there in October, 1963 or on December 16, 1963, when he was appointed assistant county attorney and by his first personal presence there with a fixed and permanent abode with intention of remaining there.

Webster’s New Twentieth Century Dictionary, Unabridged Second Edition, defines “abode” as staying; a staying in a place; residence for a longer or shorter time; to dwell or reside; and defines “reside” as resided; residing; to remain behind; to reside; to dwell; to dwell permanently or for a length of time; to have a settled abode for a time; to abide; to live (in or at).

Mr. Bartlett by his own testimony admits that he was not personally present in Van Zandt County in October, 1963, with a fixed and permanent abode, but on the other hand his testimony shows that he did not have a fixed and permanent abode in Van Zandt County, nor resided there until December 16, 1963.

Article 5.08 of the Election Code provides that the “residence” of a single man is where he usually sleeps at night; further providing that the residence of one who is a student of a school, college or university shall be construed to be where his home was-before he became such student unless he has-become a bona fide resident in the place where he is such student. As I construe this Article, under the record in this case his residence would either be in Harrison County where he lived immediately prior to entering Baylor University as a student, or in McLennan County where he was such student until he acquired a new residence m Van Zandt County in December, 1963.

All the testimony in this case shows that Bartlett has not resided,in Van Zandt County six months prior to the primary election to be held on May 2, 1964, therefore, he has not complied with the residence requirement of Article 1.05 of the Election Code to be eligible to be a candidate for County Attorney of Van Zandt County in the primary election of May 2, 1964. The trial court should have granted plaintiff (appellant) the relief prayed for.

My brethren find no fault with the law as expressed in the authorities cited in this dissenting opinion as to the requirements necessary to the establishment of a residence but contend that it does not apply to a single man or a student. I have been unable to find any authority to this effect or has any been cited.

The majority opinion holds that mere presence in a locality coupled with an intention to return at some indefinite time in the future to take up a place of abode for the first time, and that based on contingencies, is sufficient to establish a residence. With this I cannot agree. In Gallagher v. Gallagher, Tex.Civ.App., 214 S.W. 516, a captain in the military service of the United States filed suit for divorce in Bexar County, Texas. He first came, in company with his wife, to San Antonio, in 1915, remained in that place for over a year and was then sent with General Pershing’s military expedition into Mexico, and returned to San Antonio in July, 1917, where he remained until he filed his petition for divorce on September 23, 1918. Appellee testified that he had for over a year intended to make San Antonio his permanent home as soon as he could retire, which would he in the year 1919. The court said:

“While the plea to the jurisdiction was based alone on the proposition that appellee was a soldier, it placed the burden of showing that he had acquired a domicile in Bexar county by the 'clearest and most unequivocal proof.’ In this he failed, for, giving absolute verity to all he stated, he had never acquired any domicile in Bexar county, but intended to do so at some indefinite time in the future.”

The facts in the case before us are not as strong as those in the Gallagher case, even though he was not there voluntarily, in that the Captain was actually residing there at the time of the filing of his petition for divorce and had been for several months prior thereto at the time he said he formed his intention to make Bexar County his home.

I have not found any authority nor has any been cited holding that intention alone to acquire or create a new residence is, in advance of any character of actual residence, use or preparation, sufficient to do so. There are several authorities which I have cited holding to the contrary.

Appellees urge that Article 1.05 is in conflict with Article 332, Vernon’s Ann.Civ.St, and thereby Article 332 controls. I cannot agree with this contention. Article 332 does not prescribe residence qualifications for County and District Attorneys and we do not find any conflict between the two statutes. Article 332 provides qualification for said offices and those elected to such ofiices shall “reside” in the district and county respectively for which they were elected. Article 1.05 contains requirements for a candidate to be eligible to be elected or appointed to any public office in this state.

The appellees further urge that the appellant has not proved that he is a proper person to bring this action as provided by Article 1.07 of the Election Code. This contention is without merit. The record before us reflects that appellee Robert Bartlett filed a plea in abatement, alleging that the suit should be abated for the reason that the plaintiff (appellant) does not have the capacity to sue; and without the joinder of the State of Texas, acting by and through its duly authorized and empowered agents and representatives, the same could not be maintained to challenge the rights of the defendant (Robert Bartlett). This plea was not sworn to as required by Rule 93 of of Texas Rules of Civil Procedure. An objection to the right or capacity of the plaintiff to sue or to his right to maintain the suit in the capacity in which he sues, should be raised by a plea in abatement supported by oath or affirmation. The failure to plead in abatement that the opposing party lacks the right to prosecute the action operates as an admission of authority to act in the capacity in which he appealed. Joy v. Joy, Tex.Civ.App., 156 S.W.2d 547; Jordan v. Madison, Tex.Civ.App., 250 S.W.2d 228; Tex.Jur.2d p. 37, sec. 17. Further, it does not appear from the record before us that appellant presented his plea in abatement to the court for action thereon.

It is my opinion that this case should be reversed and rendered and appellant granted relief as prayed for. I respectfully enter my dissent.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    Francis C. LOOS et al., Appellants, v. CITY OF HOUSTON, Texas, et al., Appellees.
    No. 14265.
    Court of Civil Appeals of Texas. Houston.
    Feb. 20, 1964.
    Rehearing Denied March 12, 1964.
    Hatten & Touchy, Hugo A. Touchy, Houston, for appellants.
    Sewall Myer, Houston, for intervenors Alcus Greer, D. A. Whigham, Gene Hollan and Bennett A. Cook.

      John Wildenthal, Jr., City Atty., and Homer T. Bouldin, Senior Asst. City Atty., Houston, for City of Houston and City of Houston Civil Service Commission.
   WERLEIN, Justice.

Appellants, plaintiffs below, Francis C. Loos, Russell L. McNally and William A. Schomburg', all members of the Fire Department of the City of Houston, classified as Chief Inspectors, filed this suit against the City of Houston and the City of Houston Civil Service Commission, seeking a temporary mandatory injunction requiring that they be permitted to take a scheduled promotional examination for Fire Marshal and also seeking a determination of their rights to take such promotional examination for Fire Marshal at the time “such examination be scheduled”, and praying that upon final hearing a permanent injunction be granted enjoining the defendants from refusing to allow them to take the examination for promotion to Fire Marshal and being certified on the eligibility list for Fire Marshal according to the results of the examination and in accordance with the rules and regulations of the Civil Service Commission and statutes of the State of Texas; and further praying that Ordinance No. 8531 of the City of Houston, passed February 25, 1953, be declared null and void as well as all subsequent ordinances attempting to create, classify or reclassify classes and positions in the Fire Department contrary to Ordinance No. 5198, passed June 28, 1950 by the City Council of the City of Houston, and voted on and approved by the people of the City on July 22, 1950.

Alcus Greer, Arson Investigator, and D. A. Whigham and Gene Hollan, Assistant Arson Investigators of the Houston Fire Department, intervened in this suit, alleging, among other things, that said Ordinance No. 8531 is valid and that the referendum Ordinance No. 5198, which establishes minimum salaries and minimum number of positions of Assistant Arson Investigators and Chief Inspectors, does not prohibit or prevent the City Council of the City of Houston from increasing the salaries of such employees or determining their respective duties; that the City has legally increased, since the date the referendum ordinance of July 22, 1950, the salaries of Assistant Arson Investigators above the salaries of Chief Inspectors; that Article 1269m, Sec. 14, as amended, Vernon’s Annotated Texas Statutes, vests in the Civil Service Commission of the City of Houston the unrestricted and unlimited right and duty to make “rules and regulations” governing promotions of employees of the City; that such Article requires the Commission to hold promotional examinations and to provide eligibility lists for each classification in the Fire Department of the City; and that the Commission has included in the eligibility list of applicants any City of Houston Arson Investigator or Assistant Arson Investigator who had been so classified for two continuous years immediately prior to the date of the examination.

Said intervenors further alleged that they are qualified to take such examination and that none of the plaintiffs is qualified to take the same, and further that said Section 14 of Article 1269m, as amended, requires that the applicants for such examination be “in the classification immediately below in salary of that classification for which the examination is to be held”, and that if there is not a sufficient number of employees in that classification to provide an adequate number of persons to take the examination, the Commission may extend the examination to members of the second lower position in salary to that for which the examination is held; that intervenors are in the “second lower position in salary”, and that the Chief Inspectors are not in such “second lower position in salary”; and that the plaintiffs, without protest to the City of Houston, have been performing their duties under and in conformity with the City ordinance complained of by them, and have recognized and acquiesced in the differentials in salary between themselves and intervenors and are, therefore, estopped to attack the action of the City of Houston and the Commission of the City of Houston.

After a temporary injunction was granted by the trial court restraining the City from giving the examination without including in it the plaintiffs, the case was tried on the merits. From a take-nothing judgment entered by the trial court in favor of the defendants, plaintiffs appeal. On June 7, 1963 this Court granted appellants’ motion for a temporary injunction enjoining both the City of Houston and the Civil Service Commission, pending final determination of this appeal, from holding any examination for the classification of Fire Marshal unless appellants were allowed to take such examination. Such temporary injunction is still in force.

Ordinance No. 5198, pursuant to proclamation and notice of special election, was voted on and approved by the people of the City of Houston on July 22, 1950. Section 1 of this Ordinance provides:

“That from and after the effective date of this ordinance the Classes, Classifications and Grades set forth in the schedule below shall exist and be in effect in the Fire Department of the City of Houston, and the holder of every position now or hereafter existing in each such classification shall be paid not less than the minimum salary for such position shown in said schedule opposite the respective classifications, and there are hereby created and established as of the effective date of this ordinance, as a minimum, the number of positions in each classification as indicated in said schedule, which schedule is as follows:

⅛ ⅜ ⅜ * ⅜

Section 9, Article Vllb, of the Charter of the City of Houston, provides: “No ordinance or resolution which has been passed by the Council upon a petition, or adopted by popular vote, under the provisions of this Article, shall be repealed or amended, except by the Council in response to a referendum petition or by popular vote thereon.”

Ordinance No. 8531, passed February 25, 1953 by the Council of the City of Houston, was not passed in response to a referendum petition or by popular vote thereon. Such ordinance provides that after its effective date there shall exist the following positions, classifications and Salaries in Civil Service Class E:

POSITIONS CLASSIFICATION SALARY
Per Month
GRADE 5
1 Chief Inspector $315.00
GRADE 6
2 Assistant Arson Investigators 335.00
GRADE 7
1 Arson Investigator 355.00
GRADE 8
1 Fire Marshal 400.00

Said Ordinance also provides that all ordinances or parts of ordinances in conflict therewith, if any, are repealed to the extent of such conflict only.

Appellants assert that Chief Inspectors and Assistant Arson Investigators of the City of Houston are in the same grade and classification under Ordinance No. 5198 which became effective October 1, 1950, and which was passed by the City Council of the City of Houston and voted favorably upon by the people of the City by referendum election July 22, 1950; that this ordinance establishes and creates the classification of Grade 5 which consists of two positions, to wit: Assistant Arson Investigator and Chief Inspector, with the same minimum salary and the same minimum number of positions.

Intervenors and the City of Houston, which has expressly adopted the brief of intervenors, contend that the rights of appellants and all other classified City employees to take promotional examinations, are controlled by Article 1269m, V.A.T.S., and that the Civil Service Commission is fully authorized and empowered under said Article and especially Sections 8 and 14 thereof, to refuse appellants the right to take such examination.

Section 8 provides, among other things:

“The Commission shall provide for the classification of all firemen and policemen. Such classification shall be provided by ordinance of the City Council, or legislative body. Said City Council, or legislative body, shall prescribe by ordinance the number of positions of each classification.
“No classification now in existence, or that may be hereafter created in such cities, shall ever be filled except by examination held in accordance with the provisions of this law. All persons in each classification shall be paid the same salary and in addition thereto be paid any longevity or seniority pay that he may be entitled to.”

Section 14, Article 1269m, V.A.T.S., provides, among other things:

“Sec. 14. The Commission shall make rules and regulations governing promotions and shall hold promotional examinations to provide eligibility lists for each classification in the Police and Fire Departments, which examinations shall be held substantially under the following requirements:
“A. All promotional examinations shall be open to all policemen and firemen who have held a continuous position for two (2) years or more in the classification immediately below in salary of that classification for which the examination is to be held; except where there is not a sufficient number of members in the next lower position with two (2) years service in that position to provide an adequate number of persons to take the examination, the Commission may extend the examination to the members in the second lower position in salary to that for which the examination is to be held.”

Glass v. Smith, 1951, 150 Tex. 632, 244 S.W.2d 645, involved the right of respondents to compel the City officials of Austin, Texas, to call and hold an election for approval of an ordinance initiated by citizens of the City, classifying policemen and firemen and fixing their pay. The court said that the petitioners’ contention suggested two inquiries, viz.:

“(1) Did the Legislature, by providing that classification should ‘be provided by ordinance of the City Council, or legislative body’, intend to imply that the power to pass such an ordinance was reserved or withdrawn from the initiative process and was vested exclusively in the City Council? and (2) Did the legislature, by providing that the Civil Service Commission should ‘provide for the classification of all firemen and policemen’, intend to limit the power of the City Council so that it was authorized to include in a classification ordinance only the classification created and provided by the Civil Service Commission?”

The court held that Section 8, Article 1269m, V.A.T.S., does not constitute a limitation on the power of the City Council to pass a classification ordinance and does not withdraw the subject matter from the operative field of the initiative. In so holding the court, in effect, held that the language of Section 8 of the Act does not vest the power to create classifications in the Commission exclusively and that the Commission acts in aid of the City Council in the creation of classifications to be embraced in a classification ordinance. The court said :

“When the people exercise their rights and powers under the initiative provisions of a city charter and thereby become the legislative branch of the city government, the members of the City Council, like other city officials and employees, become ministerial officers in the legislative process, burdened with the mandatory obligation of performing the duties imposed upon them incidental to carrying out the initiative procedure.”

It is our view that the reasoning of the court in Glass v. Smith, supra, is applicable to the instant suit. Under Article 1269m, the power to create classifications by ordinance is conferred upon the City Council. The City, in passing an ordinance, is subject to the provisions of its charter. The charter of the City of Houston provides that any ordinance passed by the City Council upon a petition or adopted by popular vote shall not be repealed or amended except by the Council in response to a referendum petition or a popular vote thereon. This provision does not withdraw from the City the power to pass a classification ordinance with the aid of the Civil Service Commission, but it does prescribe the manner in which such ordinance must be passed in order to be effective.

Article Vllb of the charter of the City of Houston gives the City the power of legislation by initiative and referendum. In the case of Taxpayers’ Association of Harris County v. City of Houston, 129 Tex. 627, 105 S.W.2d 655, the court said:

“ * * * the power of initiative and referendum * * * is the exercise by the people of a power reserved to them, and not the exercise of a right granted. It follows that, in order to protect the people of the city in the exercise of this reserved legislative power, such charter provisions should be liberally construed in favor of the power reserved.”

We have concluded that Ordinance No. 8531 is invalid insofar as it undertakes to change the classification of Assistant Arson Investigators by placing them in Grade 6, which is a higher grade than Grade 5, and thereby differentiating between Assistant Arson Investigators and Chief Inspectors.

Ordinance No. 5198 places Assistant Arson Investigators and Chief Inspectors in the same class, namely Grade 5. Ordinance No. 8531, in undertaking to change such classification, is clearly in violation of Section 9, Article Vllb of the charter of the City of Houston, since such ordinance was not passed in response to a referendum petition or by popular vote thereon. Under Ordinance No. 5198, which is still controlling in this matter, Assistant Arson Investigators and Chief Inspectors are in the same grade with the same basic salary and right to the same uniform increases in pay in accordance with years of service. Nichols v. Houston Police Officers’ Pension Board, Tex.Civ.App., 335 S.W.2d 261, writ ref., n. r. e. Hence, Chief Inspectors have the right to take the same promotional examinations that Assistant Arson Investigators may be given.

It is conceded that at the present time there is only one person in the position of Arson Investigator, which under Ordinance No. 5198, is Grade 6, and there are two Assistant Arson Investigators in Grade 5 under said Ordinance, although they are listed under Grade 6 in the invalid Ordinance No. 8531. The evidence shows that Ordinance No. 5198 provides for the classification of Grade 7, Assistant Fire Marshal, whereas Ordinance No. 8531 makes no provision for an Assistant Fire Marshal, but changes the classifications as set out hereinabove and places the Arson Investigator in Grade No. 7. No one has filled the position of Assistant Fire Marshal since Ordinance No. 8531 was passed. Since there is no one in Grade 7 (Assistant Fire Marshal), under Ordinance No. 5198, which is the next lower position to Fire Marshal, the Commission, under Sec. 14, subd. A, Article 1269m, V.A.T.S., may extend the examination to members in the second lower position in salary, which is Grade 6, Arson Investigator. Section 14, subd. D provides in part:

“No person shall be eligible for promotion unless he has served in such Department for at least two (2) years immediately preceding the day of such promotional examination in the next lower position or other positions specified by the Commission, * * (Emphasis added.)

Construing Sec. 14, subd. A and Sec. 14, subd. D together in an effort to arrive at the intention and meaning of the Legislature, we have concluded that the Commission is not restricted to extending-the examination merely to the second lower position in salary, but may in a proper case extend the same to the “next lower position or other positions specified by the Commission.” If the examination is not extended beyond the second lower position in salary, there would be only one person who would be qualified to take the examination, to wit: the Arson Investigator, who is in the second lower position under Ordinance No. 5198. Sec. 9, Article 1269m states that the Commission shall make provisions for “open, competitive and free examinations for persons making proper application and meeting the requirements as-herein prescribed.” (Emphasis added.) In order to have a competitive examination in the instant case it would be necessary to extend the examination to Grade 5, which under Ordinance No. 5198 includes the plaintiffs herein who are Chief Inspectors and the two intervenors who are Assistant Arson Investigators.

We hold that the City may not permit the Assistant Arson Investigators to take the examination and at the same time keep the Chief Inspectors from taking the same since they are both in identically the same grade with the same basic salary under Ordinance No. 5198. Such action would constitute discrimination between persons in the same classification. Since the trial court did not file findings of fact and conclusions of law, although requested to do so, we are unable to determine upon what ground it refused the injunction sought by appellants.

The judgment of the trial court is reversed and the cause is remanded with instructions to the trial court to grant an injunction restraining the City of Houston and the City of Houston Civil Service Commission from refusing appellants the right to take the examination for promotion to Fire Marshal whenever it may be given, under the same conditions and in the same manner as Assistant Arson Investigators are permitted to take the same.


author: CHAPMAN, Justice.

text:
    G. A. JENKINS, Appellant, v. LIPSCOMB COUNTY et al., Appellees.
    No. 7316.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 13, 1964.
    Lemon, Close & Atkinson, Perryton, for appellant.
    Allen, Allen & Reavis, Perryton, for ap-pellees.
   CHAPMAN, Justice.

The subject matter of this suit constitutes a claim by G. A. Jenkins, County Judge of Lipscomb County at the time the law suit was filed, against said county for alleged unpaid salary dating from February 11, 1957, to January 1, 1963, the date at which he ceased to be County Judge.

The case was tried to a jury and after both parties closed their testimony the court instructed a verdict for Lipscomb County. Appeal is perfected from the judgment based upon that verdict.

Judge Jenkins first assumed the office of County Judge on January 1, 1949. From that date until February 11, 1957, he was on a fee basis for his compensation for his services rendered as County Judge. On the last named date his compensation was changed from a fee basis to a straight salary and under the authority of Article 3883i, Sections 1 and 11, Vernon’s Ann.Tex. Civ.St., [providing maximum salaries for county officials in counties having less than 20,000 population and excepting county-judges who serve as ex officio county superintendent], was set by the commissioner’s court at $5400 less $1600 to be paid for school work,” which he testified was an overall increase in compensation for his services as County Judge.

That year and each year thereafter, including the year in which he filed this suit, Judge Jenkins served as Budget Officer for the commissioner’s court as provided in Articles 689a-9 and 689a-ll and showed his salary in the county budget as $3800. The record shows without contradiction that he never said anything to any of the commissioners about being dissatisfied with the $3800 he was receiving from the budgeted funds of the county until September 1961 and did not present a claim in writing until October 1962 after he had budgeted $3800 for his salary for his last year in office and that budget had been approved. He testified none of the budgets he ever prepared showed an outstanding claim against the county for any money the county owed him for past services, that so far as he knew none of the commissioners knew he wanted $1600 more per year and that he knew when he ran for office he was being paid $3800. The record also shows it was understood both by the judge and the commissioners that his total compensation was $5400, including the $1600 for serving as ex officio county superintendent.

We hold the trial court correctly instructed a verdict in the case.

In the first place we believe that the statement that his salary was set at “$5400 less $1600 to be paid for school work” means $3800 to be paid from the county budget.

Under the facts here and under the authority of Garcia v. State, Tex.Civ.App., 290 S.W.2d 555, 559 (N.R.E.) a taxpayer could have enjoined payment of county funds for the $1600 a year claimed absent a showing that such funds were available under the county budget. The court there said: “A taxpayer may enjoin payment of county funds in violation of the budget law.” In fact, this record amounts to an agreement between Judge Jenkins and the commissioner’s court to the $3800 salary set in the county budget, under the authority of Dalton v. Allen, Tex.Civ.App., 218 S.W. 73 (N.W.H.), since the testimony shows it was understood by all parties that his salary in the county budget was $3800 during all the time for which the extra $1600 a year is sought.

Accordingly, the judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    Roy GUFFEY et al., Appellants, v. UTEX EXPLORATION COMPANY et al., Appellees.
    No. 14195.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 12, 1964.
    Rehearing Denied March 11, 1964.
    Claud H. Gilmer, Rocksprings, Coke R. Stevenson, Pierce Stevenson, Junction, for appellants.

      Hart & Hart, Austin, M. C. Blackburn, Junction, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by appellants, Roy Guffey and Bill L. Holland, against Utex Exploration Company, a private corporation, and Julian C. Ashby, appellees, seeking to enforce an oral contract for the purchase of gas from the Fred Mudge No. 1 well located in Kimble County, Texas, on a tract of land known and described as Section 10, Block No. 4, T. W. & N. G. Ry. Co. Survey, and an offset well to be drilled later. The Mudge well No. 1 was capable of providing 2,650,000 cubic feet of gas per day, but was shut-in for want of a market. The contract was alleged to have been entered into on June 28, 1961, with Julian C. Ashby personally and as agent for Utex Exploration Company, and was to continue for the life of the well or not more than twenty years, whichever was the shortest period. Appellants allegedly agreed, among other things, to take a minimum of 250,000 cubic feet of gas per day, and to construct or cause to be constructed the necessary pipelines to the two wells. Appellees drilled to completion the off-set well, known as Louise Kenedy Well No. 1, on Section 23, Block 4, T. W. & N. G. Ry. Co. Survey in Kimble County. Appellees thereafter refused to carry out the provisions of the oral contract.

When appellants rested their case in the trial court, appellees made a motion for an instructed verdict which was granted by the court and judgment rendered that appellants take nothing, from which judgment Roy Guffey and Bill L. Holland prosecuted this appeal.

Appellants’ first point is that the trial court erred in holding that the contract was barred by the Statute of Frauds and the Statute of Conveyances. The contract was not in writing, and was apparently to continue for twenty years, and was for the sale of gas in place. If the contract was for a period of twenty years it would be in violation of Art. 3995, Vernon’s Ann.Civ. Stats., Sec. 4, requiring a contract for the sale of real estate to be in writing, and Sec. 5, requiring any agreement not to be performed within one year to be in writing. It would also be in violation of Art. 1288, Vernon’s Ann.Civ.Stats., requiring, among other things, that a conveyance of real estate be in writing. Thus the all important question here is whether this alleged contract was one relating to the sale of an interest in real estate.

Appellants make a very full and frank statement of the facts relating to this oral contract which we here adopt.

“STATEMENT UNDER POINT NO. 1

“The following is reflected by the deposition of plaintiff Bill L. Holland, offered by plaintiffs on the trial. The deposition is included in the statement of facts as Exhibit No. 1; and the deposition itself has six exhibits, all of which were admitted in evidence:
“About the middle of May, 1961, plaintiffs learned from defendant Ash-by, General Manager of defendant Utex Exploration Company, that defendant Utex Exploration Company was interested in selling gas from its gas well in Kimble County, Texas, known as the Mudge Well No. 1. The Mudge No. 1 was then a completed well with a potential capacity of 2,650,000 cubic feet of gas per day. On June 1, 1961, plaintiffs made an appointment to see defendant Ashby in his office in Abilene, Texas, for the purpose of discussing the purchase of the gas; and on the next day, they went to Abilene and had a conference with Ashby in his office. On this occasion, plaintiffs disclosed to defendant Ashby that Junction Natural Gas Company and Texas-New Mexico Pipeline Company were prospective purchasers from plaintiffs.
“Defendant Ashby thought he could trade with plaintiffs at a price of ten cents per thousand cubic feet; but he said he would have to talk to his boss, Mr. Steen, and would advise plaintiffs in a few days. A minimum take of gas was discussed; and Ashby said they would have to have a certain minimum of 250,000 cubic feet per day, which plaintiffs had stated they could guarantee. They talked in terms of the contract running until the franchise between Junction Natural Gas Company and the City of Junction expired, which is 1980, provided the well and reserves could supply them that long; but if not, plaintiffs’ deal with defendants would be completely performed and completed. They discussed several features of the franchise, particularly the quality of the gas, its freedom from sand, and the fact that plaintiffs would have to be assured of enough to fulfill the franchise needs; otherwise the franchise would be terminated, and the deal between plaintiffs and defendants would be concluded and performed. Defendant Ashby requested plaintiffs to say nothing about the negotiations they were having until he got his farm-out with Skelly worked out and also asked them to say nothing about his working on a farm-out with Skelly. He wanted that kept secret.
“On June 5, 1961, defendant Ashby, General Manager of defendant Utex Exploration Company, wrote plaintiff Bill L. Holland that defendants were interested in negotiating a contract selling the gas for ten cents per thousand cubic feet, with a specified minimum take and an escalator clause for price increases. On June 28, 1961, plaintiffs again had a meeting with defendant Ashby at defendants’ office in Abilene, Texas. On that occasion, plaintiffs advised Mr. Ashby that they were continuing to make progress with their deal.
“At this point in the introduction of the deposition, defendants objected on the ground that the agreement was an oral agreement relating to the sale of an interest in real estate and was therefore covered by the Statute of Frauds and the Statute of Conveyances. The objection was sustained; and defendants thereupon objected to all the rest of the deposition of Bill L. Holland upon the same grounds, and also objected to it as showing an agreement not to be performed before the end of a year in violation of the Statute of Frauds. The court sustained the objection to the remainder of the deposition, but admitted the exhibits.
“The testimony of plaintiff Bill L. Holland by deposition, excluded by the court as being inadmissible by reason of the Statute of Frauds and the Statute of Conveyances, reflects that on June 28, 1961, plaintiffs agreed to take the minimum of two hundred fifty thousand cubic feet of gas that Mr. Ashby had previously set; that when plaintiff Roy Guffey suggested some kind of a contract which plaintiffs could show to their people, Ashby said, ‘You have my letter. That is all the contract you need’; and that no other writing passed between the parties on that date. Also, on June 28, 1961, Ashby advised the plaintiffs that it looked like he was going to be able to drill the off-set well. After several inquiries by plaintiff Bill L. Holland as to progress with the plans to drill an off-set well to the Mudge Well, he received from defendant Utex Exploration Company on August 2, 1961, a letter advising that ‘We are moving the rig to the location in Kimble County, Texas, tomorrow.’ On August eleventh of twelfth, Ashby advised plaintiffs that the off-set well was being drilled. On the same date, plaintiffs pointed out to Ashby that since they had a contract with him, they felt that they were entitled to know something about how the well might be running; and Ashby promised that the information would be made available to them when the well was completed, although it was a 'tight hole’, meaning that information concerning the well is not released. On August 17, 1961, plaintiffs again met Ashby in his office in Abilene. He gave them the potential of the off-set well; and upon their comment that it looked like a better well than the Mudge well, Ashby said, ‘Yes, in fact it is so good that we are looking for a transmission line connection, and your little minimum take is not enough to justify us to tie up our tremendous gas reserves here.’ Reminded by plaintiffs that they had a contract, he said, ‘Yes, you’re right; but the boss won’t go for that.’
“On August 23, 1961, plaintiffs and Junction Natural Gas Company reached a firm agreement whereby plaintiffs were to furnish the gas company a minimum of one hundred fifty thousand cubic feet of gas per day at a price of thirty cents per thousand cubic feet. On August 29, 1961, Holland notified Ashby that he was ready to tie into the well. On August 30, 1961, defendant Utex Exploration Company wrote Holland that they would investigate other possibilities for a market. On December 3, 1961, defendant Utex Exploration Company entered into a contract with Junction Natural Gas Company to sell gas to the latter company at twenty cents per thousand cubic feet with a minimum take of two hundred fifty thousand cubic feet per day.
“At all times pertinent hereto, defendant Julian C. Ashby was General Manager of the Petroleum Division of Utex Exploration Company. From the time of the first conference with Holland and Guffey on June 2, 1961, Ashby knew that plaintiffs were negotiating with Junction Natural Gas Company and Texas-New Mexico Pipeline Company with a purpose to resell to them the gas from defendants’ wells, which was the subject matter of plaintiffs’ and defendants’ agreement. Defendants furnished Texas-New Mexico Pipeline Company with data from which to evaluate the reserves of the off-set well but advised that Company not to furnish Mr. Holland with a copy of its evaluation.”

The contract was one for the sale of gas in place, which is a part of the real estate, and is such a contract as is required to be in writing. At the time the contract was made the first well was completed but shut-in and the second well had not been completed. The gas was not produced, but was to be produced when appellants built a pipe line and connected it with such wells.

Appellants rely upon the case of Dashko v. Friedman, 59 S.W.2d 203, decided by the Texarkana Court of Civil Appeals in 1933, no writ history, which unquestionably held that an oral sale of oil and gas if and when produced was not a sale of an interest in real estate and was not required to be in writing. While this case has never been expressly overruled by the Supreme Court of Texas, we feel that it has been overruled in effect.

In Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021, the Supreme Court held that an easement by a lessee to deliver to the credit of the lessor free of cost, in the pipeline to which he may connect his well, the equal one-eighth part of all oil produced and saved from the leased premises, conveyed an interest in real property. The Court held that it would be inconsistent with the public policy of the State to hold that the contract created mere rights in personalty at some uncertain date in the future when the oil and gas would be produced at the surface. We can see no difference between selling a one-eighth interest in all the oil and gas produced from a well, and the sale of a definite quantity of oil and gas when produced from a well, insofar as the law of conveyance is concerned. See also Tennant v. Dunn, 130 Tex. 285, 110 S.W.2d 53; Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W. 2d 27.

It is plain that appellants are claiming under their oral contract, the right to build a pipeline on the lease and connect with appellees’ well. This within itself would convey an interest in the oil and gas leasehold. Southwest Pipe Line Co. v. Empire Natural Gas Co., 33 F.2d 248 (8th Cir.).

Further, we are of the opinion that this was a contract not to be performed within one year and therefore required to be in writing. The fact that these wells might cease to produce gas within the first year, and thus not perform the contract but terminate it, did not render it a contract to be performed within one year. From all of the facts, it is shown that the parties expected the contract to run for twenty years, and no one expected or contemplated that these two wells would cease to produce within a period of one year. Gilliam v. Kouchoucos, 161 Tex. 299, 340 S.W.2d 27; Chevalier v. Lane’s Inc., 147 Tex. 106, 213 S.W.2d 530, 6 A.L.R.2d 1045.

The contract herein being void because not in writing, there can be no recovery of damages based upon a breach thereof. Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505; Little v. Childress, Tex.Civ.App., 12 S.W.2d 648, aff. Tex.Com.App., 17 S.W.2d 786.

The trial court did not err in granting appellees’ motion for an instructed verdict and in rendering judgment that appellants take nothing. The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    Joyce EDMONDSON et vir, Appellants, v. Lou Anne KELLER et vir, Appellees.
    No. 11163.
    Court of Civil Appeals of Texas. Austin.
    Feb. 26, 1964.
    Rehearing Denied March 11,1964.

      Byrd, Davis & Eisenberg, Marion S. Roberts, Jr., Austin, for appellants.
    Gay & Meyers, Bob E. Shannon, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment denying plaintiff recovery based on a jury verdict growing out of a suit for damages for personal injuries sustained as the result of a collision between the automobile in which defendant was driving and in which the plaintiff was a passenger, and a truck.

In a former case this court held that plaintiff as a matter of law had no cause of action against the truck company. McCormick v. Stowe Lumber Company, Tex.Civ.App., 356 S.W.2d 450, er. ref., n. r. e.

In the instant case the jury found that plaintiff failed to keep a proper lookout and found no damages.

The appeal is before this Court on seven points assigned as error but a proper disposition of the question of the duty of plaintiff to keep a proper lookout as a matter of law will make unnecessary a determination of the other points in the appeal.

The appellant contends that as a matter of law, the plaintiff was under no duty to keep a lookout and that there was no evidence that plaintiff was negligent in failing to keep a lookout and that as a matter of law any failure on the part of plaintiff to keep a lookout could not have been a proximate cause of the collision in question.

We believe that the plaintiff’s position is well taken and reverse and remand this cause.

The plaintiff and defendant had known each other for a number of years and were rooming together at the time of the accident. The plaintiff did not own an automobile; the defendant did and it was used by both parties. A few days prior to the collision the plaintiff took her car to Seguin for repairs, and her mother loaned a car to both the defendant and plaintiff. The defendant drove the car from Seguin to Austin and was driving the car when the collision occurred and at which time the plaintiff was asleep.

The collision occurred on a clear day in the city limits of Belton, Texas, and the defendant had exclusive control over the physical operation of the car at the time and on the occasion of the collision when defendant ran into the rear of a truck in which plaintiff suffered certain injuries and incurred medical expenses.

It is not essential to set out the alleged injuries, damages and expenses in the decision of the cause.

In McCormick v. Stowe supra, it was held that plaintiff and defendant were on a joint enterprise.

The plaintiff as an occupant of the car was under no duty to keep a lookout where no dangerous conditions existed and the defendant had been driving in a prudent manner.

As our Supreme Court said in the case of Edmiston v. Texas & N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526 (1940) :

“ * * * The driver is in charge of the automobile and the law imposes upon him the duty when driving on a public highway or street to use care constantly in keeping a lookout. Southland-Greyhound Lines, Inc. v. Richardson, 126 Tex. 118, 124, 86 S.W.2d 731. The guest, however, not being in charge of the operation of the automobile, is not required constantly to keep a lookout. Ordinarily he may reasonably and lawfully rely on the driver to keep watch.
“1 * * * Save in exceptional situations, a guest or passenger in a vehicle is not required to keep a constant lookout or to see to it that he shall be in a condition to do so. Thus, a plaintiff riding in the front seat may take his attention off the road to look at the scenery or may turn around to speak to a friend in the back or he may go to sleep or read a book without being guilty of contributory negligence if the driver commits some negligent act which the plaintiff, had he been on the alert, might have had the opportunity to prevent. * * * ’ ”

In the case of Sturtevant v. Pagel, Tex.Civ.App. San Antonio, 109 S.W.2d 556 (1937), affirmed 134 Tex. 46, 130 S.W.2d 1017 (1939), plaintiff was injured when the car in which she was riding was struck by a car being driven by defendant, Snyder. Defendant, Sturtevant, Jr., the son of the owner of the car being driven by Snyder, was asleep at the time of the collision. The jury found him negligent in failing to warn Snyder to drive at a lower rate of speed. The Court of Civil Appeals in reversing the judgment of the trial court based on this finding said:

“The jury found in answer to special issue No. 9, that Junior was negligent in failing to warn Snyder to operate the car at a lower rate of speed. However, the evidence shows that Junior was asleep on the back seat, and never awoke until after Snyder had discovered the approach of the car, and had begun to use the means at hand to avoid the collision, and under such facts Junior could not be guilty of negligence in failing to warn Snyder. Furthermore, his failure to give such warning could not have been a proximate cause of the collision.”

In Ellis v. Guinn, Tex.Civ.App., 323 S.W.2d 381, 1959, er. ref., n. r. e., the Court stated:

“ ‘Save under such exceptional circumstances, a plaintiff is entitled to trust to the vigilance and skill of his driver unless he knows from past experience or from the manner in which the car is being driven on the particular trip, that the driver is likely to be inattentive or careless.’ ”

The right of control (or lack of it) over the driver of a vehicle does not alter the duty which each of us has to use reasonable care to protect ourselves. Certainly each occupant has this duty irrespective of his right of control. Keeping a proper lookout is only one way of exercising ordinary care. Even a guest has a duty to exercise ordinary care for his safety by protesting the manner in which an automobile is being operated or by leaving it if an opportunity is afforded. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952); Sargent v. Williams, 152 Tex. 413, 258 S.W.2d 787 (1953); and Webb v. Karsten, Tex.Civ.App. Houston, 308 S.W.2d 114 (1957).

Negligence is imputed between parties to a joint enterprise where a third party’s rights are concerned, but such doctrine may not be invoked to absolve one of the parties to the enterprise from the consequences of his own negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Le Sage v. Pryor, 137 Tex. 455, 154 S.W.2d 446.

Under the facts in this case there was nc occasion for plaintiff to keep a lookout. The road conditions were not unusually dangerous, the car was in good condition and the weather clear and plaintiff knew that the defendant was an experienced and careful driver and there was no evidence of any exceptional circumstances that would require plaintiff to keep a lookout. Ed-miston v. Texas & N. O. R. Co., supra.

The failure of plaintiff to give a warning could not have been a proximate cause of the collision. Sturtevant v. Pagel, supra. Firestone Tire & Rubber Co. v. Rhodes, Tex.Civ.App., 256 S.W.2d 448, no writ history.

' Appellee takes the position that as a matter of law appellant was under a duty to keep a lookout and was negligent in failing to do so and that such could have been a proximate cause of the collision and was as a matter of law a guest of appellee.

Appellee has cited a number of cases such as Garcia v. Moneada, 127 Tex. 453, 94 S.W.2d 123 and Ellis v. Guinn, Tex.Civ.App., 323 S.W.2d 381, er. ref., n. r. e., for support of their position that the plaintiff had a right of control and that plaintiff was required to keep a lookout. We overrule this position on the facts in this case and the authorities hereinabove set out and mentioned.

The judgment of the trial court is reversed and the cause is remanded for a new trial in accordance with this decision.

Reversed and remanded.


author: NORTHCUTT, Justice.

text:
    I. W. WILSON et al., Appellants, v. ELLIOTT & WALDRON TITLE & GUARANTY COMPANY, Appellee.
    No. 7369.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 27, 1964.
    William J. Gillespie and J. Q. Warnick, Jr., Lubbock, for appellants.
    A. B. Waldron, McGown, Godfrey, Logan & Decker, Fort Worth, Key, Carr & Clark, Lubbock, for appellee.
   NORTHCUTT, Justice.

This is an appeal from a temporary injunction. Elliott & Waldron Title & Guaranty Company, plaintiff in the case below, will hereafter be referred to as appellee, and. the parties, I. W. Wilson, Prudence Primm Wilson, and I. W. Wilson d/b/a Wilson Abstract Company, Synchro-Titles, Inc., Wilson Abstract & Title Company, E. H. Ringler, and James E. Willingham (also known as J. E. Willingham), defendants in the trial court, will hereafter be referred to as appellants. Several banks were also defendants in the case below but are not parties to this appeal.

Basically, this appeal was brought by appellants under the provisions of Rule 385 of the Texas Rules of Civil Procedure whereby appellants complain of all of the various interlocutory and temporary orders and rulings of the trial court, to-wit: the temporary injunction of July 26, 1963; the temporary injunction of August 21, 1963; the nunc pro tunc order of August 21, 1963; the refusal of the court to dissolve the temporary injunction of July 26, 1963; and finally the refusal of the trial court to enter an order nunc pro tunc on behalf of appellants.

Appellee was in the business of selling title insurance throughout the State of Texas. In conducting appellee’s business it was necessary for it to employ agents in different counties to represent it. On November 21, 1961, appellee and appellant, Wilson Abstract Company, made and entered into a written contract whereby said appellant was appointed as agent for appel-lee to execute title policies in Lubbock County, Texas, for and on behalf of appel-lee subject to certain regulations. It is shown that funds would be placed with Wilson, as trustee and in escrow, by lenders of money to be paid out by Wilson when the person making the loan would then have a first and superior lien upon certain specified property. Such funds were deposited with Wilson Abstract Company or Synchro-Titles, Inc. and other names under which Wilson did business, as agent for a specified purpose, and Wilson was to be the agent trustee and appellee the principal trustee of such funds.

It was appellee’s contention that these special deposits were received by appellant Wilson et al, and contrary to the lenders instructions, and contrary to the agency agreement with appellee, the funds were not disbursed in the manner to insure a first and superior lien in behalf of the various lenders; but Wilson utilized said funds for other purposes primarily for his own personal benefit and thus misappropriated and diverted the funds to uses contrary to the purpose for which they were deposited and for which purposes they were intended.

Appellee further contending when this situation was discovered it made an investigation but was unable to determine how much of these funds had been misappropriated but discovered at least seven real estate transactions wherein money had been received by Wilson et al, for the purpose of paying off prior existing liens, but instead the monies were misappropriated; although appellee’s title insurance policies were issued to the various lenders who had advanced the trust funds insuring these lenders that they did in fact possess a first and superior lien against the real estate involved. Appellants also possessed other title policies belonging to appellee which appellee desired to keep appellants from issuing.

The trial court found the appellee had no adequate remedy at law and entered a temporary injunction to preserve the status quo until such time as the issues in the case might ultimately and finally be determined. From this order the appellants perfected this appeal.

Appellant presents this appeal upon five assignments of error. The first point insists appellee had an adequate remedy at law for proceeding under a writ of garnishment. The pleadings and the evidence are so overwhelmingly in favor of appellee being entitled to an injunction and entitled to have the matters left status quo and that a writ of garnishment would not protect the rights of appellee that we need not consider that point further. The trial court is clothed with broad discretion in determining whether to issue the writ and its order will he reversed only on a showing of clear abuse of discretion. We think the trial court could do nothing other than to grant the temporary injunction herein.

The Supreme Court held in the case of Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 at 552 as follows:

“In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Rosenfield v. Seifert, Tex.Civ.App., 270 S.W. 220, 223; Nagy v. Bennett, Tex.Civ.App., 24 S.W.2d 778, 781; High on Injunctions, 4th Edition, Vol. 1, Sec. 5, p. 8. If the party enjoined prevails on a final trial of the case he finds protection against the improvident granting of the writ and consequent loss in the interim in the applicant’s bond. Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, Tex.Sup., 248 S.W.2d 460, 462. There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235.”

See also the State of Texas v. Markle, Tex.Civ.App., 363 S.W.2d 332 where the court held the party was entitled to a trial on its application for temporary injunction there holding as follows:

“In determining whether a temporary injunction should issue to preserve the status quo pending a trial of the case on its merits, the court does not finally pass on the constitutionality of a statute or finally determine its proper construction. It does not finally determine the rights of the parties. The only issue is whether the applicant is entitled to an injunction to preserve the status quo pending trial on the merits. To warrant the issuance of such a writ the court merely determines that a probable right and a probable injury are shown. If they are, the court has broad discretion in determining whether or not an injunction should issue. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549; Richter v. Hickman, Tex.Civ.App., 243 S.W.2d 466.”

See also Coastal Bend Milk Producers Association v. Garcia, Tex.Civ.App., 368 S.W.2d 260. We overrule appellants’ first assignment of error.

All of appellants’ remaining assignments of error deal with matters happening prior to the issuing the temporary injunction here appealed from and would in no manner affect the order here in question. All of such matters were concerning the correction of some errors that had been overlooked and the trial court had the right to enter an order correcting the same. The final temporary injunction entered corrected such errors and is in no manner incorrect in preserving the status quo pending a trial of the case on its merits. Finding no reversible error,' the judgment of the trial court is affirmed.


author: McNEILL, Justice.

text:
    LIVINGSTON GRAIN & GROCERY COMPANY and Charles Wilson Hollis, Appellants, v. Lula Mae SAMFORD et al., Appellees.
    No. 6675.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 9, 1964.
    Rehearing Denied March 4, 1964.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellants.
    McDaniel, Hunt & Fairchild, Center, for appellees.
   McNEILL, Justice.

A venue proceeding. Appellants, defendants below, were sued for damages as result of personal injuries alleged to have been caused by their negligence in operation of a truck-trailer involved in an inter-sectional collision in the town of Tenaha. One action was begun by appellee Lula Mae Samford and the other by Arlie Brittain, et vir. The parties will be referred to as they were in the trial court.

Defendants filed pleas of privilege to be sued in Polk County. Plaintiffs controverted these pleas invoking subdivision 9a of Art. 1995, Vernon’s Ann.Tex.St. The petitions alleged that defendant Hollis, operator of the truck for the other defendant, failed to keep proper lookout as he approached and entered the intersection; that he failed to have the truck under proper control; and that an overhead red blinking light in the middle of the intersection faced the direction from which the truck was traveling and the operator failed to stop, as the law required, before he entered the intersection; and that each of said acts of negligence was a proximate cause of the collision.

Upon agreement of the parties the court heard both pleas at the same time. As result of the hearing the pleas of privilege were overruled. Defendants ask that this action he reversed because plaintiffs failed to show defendants were guilty of negligence proximately causing the collision. Plaintiffs counter asserting defendants waived their pleas by (1) moving to quash certain requests for admission; and (2) by moving the court to consolidate the two suits. Defendants also say that the evidence justified the court’s decision. Plaintiffs under Rule 169, Texas -Rules of Civil Procedure made request upon defendants for certain admissions of fact after the pleas of privilege were filed. Defendants promptly answered these requests. After this plaintiffs served second sets of requests for admission. In reply, and before the hearing on the pleas of privilege, defendants moved to quash these second requests and on the day the pleas were heard, but prior to its order overruling the pleas, the court sustained this motion. At any time after defendant files plea of privilege either party may, without waiving his plea of privilege, request admissions from the other. Davis v. Battles, 143 Tex. 378, 186 S.W.2d 60. This being so, it should follow that the trial court may make such incidental orders in connection therewith as to preserve and protect the rights of the parties and to see that Rule 169 serves the ends of justice. Prevailing upon the court to quash the second requests was not a waiver of defendants’ pleas of privilege.

Did the consolidation of the two cases, as was done, have the effect of waiving defendants’ pleas? The record on this question is not clear and therefore we hesitate to pass upon it. And since it is thought that the trial court’s action in overruling the pleas upon the evidence describing the collision was correct, the second question of waiver is not decided.

The accident happened about 12:15 A.M., January 30, 1963, at a time when it was foggy and drizzling rain. The truck was traveling west on State Highway 84, and the other vehicle, a 1962 Falcon station wagon, owned and driven by a Mrs. Vaughn, was traveling south on State Highway 59. These highways cross each other at right angles in Tenaha.

Hollis, the truck driver, testified the trailer of his tractor-trailer was 30 ft. long and had two lights on either side. He had left Livingston, Texas, about 10:30 A.M., January 29th and driven to Stephens, Ark., where his truck-trailer was loaded with 35,000 lbs. of shingles. Having been in Stephens U/2 hours he started on his return trip to Livingston. When he reached Tenaha and was approaching the intersection involved he was traveling downgrade, so he reduced the speed of his truck from about 30 miles to 10 to 15 miles per hr. Just before his truck entered the intersection he said he looked to his right along Highway 59 and seeing no vehicle, proceeded across the intersection and as he did so the rear section of his trailer was struck by the front end of the Vaughn station wagon. The collision was in the northwest quadrant of the intersection.

Mrs. Brittain, a plaintiff, testified that on the occasion involved, she, Mrs. Samford and Mrs. Vaughn were returning from a trip to Carthage; the three were riding in the front seat of the station wagon; Mrs. Vaughn was driving, Mrs. Samford in the middle and Mrs. Brittain was on the right. Mrs. Brittain said the station wagon was going about 20 miles per hour as they approached and entered the intersection. Nothing was said during this time and she did not see the truck until the front of their car was some 10 feet from the truck when she noticed the yellow lights on the right side of the trailer. She stated headlights could not be seen for a distance of over 10 ft. Again she said she could see headlights down the road “a pretty good piece” but not as much as ISO ft. She could not say when Mrs. Vaughn may have seen the truck but she thought the car turned slightly right just as it struck the truck. Mrs. Vaughn died as result of the accident and Mrs. Samford said she could not remember a thing about the latter part of the trip.

Hollis, the truck driver, said he did not come to a stop at the entry to the intersection. We quote this testimony:

“Q. Now did you bring your truck to a complete stop ?
“A. No, sir, I sure didn’t. I brought it to a momentary stop.
■“Q. Well what you mean, you just nearly stopped?
■“A. I — in other words, I hit my brakes and then released them several times and then when I got into that intersection I hit my brakes and momentarily stopped and then proceeded on through the intersection.
“Q. But you didn’t stop completely still?
“A. Not for no length of time, no, sir.
“Q. Well, did you completely stop or not?
“A. I did not completely stop.
“Q. Your forward motion was never stopped, is that right?
■“A. No, sir.
■“Q. All right. Now how fast were you going when you started in the intersection ?
■“A. About 10 to 15 miles an hour.
■"Q. Were you gaining speed then as you started on across the intersection?
“A. Yes, sir, I was gaining speed.”

'This evidence justifies the conclusion that :the truck did not go slower than 10 M.P.H. as it approached and entered the intersection. It gained speed as it proceeded on through. The trial court could have well concluded that if it had been stopped as required by law, the time used in doing so would have been enough for the intersecting vehicle to have passed safely on. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. This is sufficient to support the court’s action.

The order of the court overruling the pleas of privilege is affirmed.