author: LANGDON, Justice.

text:
    KEARNEY & SON, Appellant, v. Ruby K. FANCHER et al., Appellees.
    No. 16723.
    Court of Civil Appeals of Texas. Fort Worth.
    April 1, 1966.
    Rehearing Denied April 29, 1966.

      Storey, Armstrong & Steger and John K. DeLay, Jr., Dallas, for appellant.
    Biggers, Baker, Lloyd & Carver and Monty C. Barber, Dallas, for appellees.
   LANGDON, Justice.

This case involves the construction of an express easement granted by deed, involving the use of a railroad switch track and grounds. When it was no longer physically possible to bring railway cars onto the property the appellant in June, 1962, constructed a fence along its property line beside that of the appellees’ obstructing the latter’s use of the strip involved.

Appellees filed this suit seeking to enjoin the appellant from fencing its (appellant’s) property and in any way obstructing ap-pellees’ use of an 18 foot strip of land, being 9 feet on each side of the center line of the railroad switch track paralleling their property line. In the original petition and application for injunction the appellees alleged that the easement granted in the deed of April 25,1935, was for the general purposes of access from Logan Street to appellees’ concrete loading .dock attached to their building, and parallel to the switch track. That by virtue of such express grant they were entitled to use the railroad switch track and grounds as a driveway for trucks coming from Logan Street. Alternatively they claimed an implied easement or one by estoppel.

By answer and cross-action appellant denied that the easement granted in the deed of April 25, 1935, was a general-purpose easement of access. It asserted that the purpose of the easement granted by and reserved in the Keller (common source of title) deeds was limited to railroad use, which use had totally ceased and become impossible, thereby terminating the easement and appellees’ right to use appellant’s property. It prayed that title to its land be quieted.

Appellees and appellant filed motions for summary judgment each asserting that judgment should be rendered in their or its favor as a matter of law. On June 10, 1965, the court entered judgment granting appel-lees’ motion, holding that appellees were entitled to an easement of access over and across the strip of appellant’s property which was described by metes and bounds. In general the strip may be described as being 13.5 feet wide and approximately 120 feet long lying north of and parallel with the line between the property of appellant and appellees. (See Exhibit A, the plat from which the metes and bounds description of the strip was obtained.)

In order to more clearly illustrate the location and relationship of the railway tracks, streets, loading dock and the property covered by the various conveyances, references will be made to a survey marked Exhibit B which follows Exhibit A.

The appellant contends that the trial court erred in granting summary judgment for appellees, holding that (1) appellees are entitled to a permanent easement of access over and across its property; (2) that there is an existing, permanent easement in favor of appellees’ property over and across appellant’s property by virtue of (a) the grant in the deed dated April 25, 1935, to appel-lees’ predecessor-in-title and (b) an agreement dated July 11, 1955, between appellant and appellees; and in failing to render summary judgment for appellant holding that the “easement or right-of-way and privilege to use the railroad switch track and grounds” had terminated as a matter of law.

Prior to April 25, 1935, P. B. Keller owned the property now owned by appellant Kearney & Son and appellee Fancher. By warranty deed dated April 25, 1935, P. B. Keller et ux. conveyed to W. B. Connell (appellee Fancher’s predecessor-in-title) the land now owned by appellee Fancher and leased to appellee, Chemical Engineering Corporation. (Tract “F” — Exhibits A and B.) This deed, after describing the property conveyed, states: “Together with an easement or right-of-way and privilege to use the railroad switch track and grounds along the north and the northeast side of the property hereby conveyed; grantors reserving however the right to use said switch property and track to serve other property owned by grantors adjacent thereto, it being specially agreed and understood that the grantee herein, his heirs and assigns, shall be obligated to keep said switch property in repair adjacent to and along the property hereby conveyed, and that grantors, their heirs and their assigns, will keep that portion of said switch track and property in proper repair to service said property adjacent and adjoining property owned by said grantors.”

Thereafter, by warranty deed dated May 14, 1936, P. B. Keller et ux. conveyed to Dixie Motor Coach Corporation and Sunshine Bus Lines, Inc., the tract of land, adjoining appellee Fancher’s property on the north, upon which the above mentioned railroad switch tract is situated. (Tract “K 1” ■ — Exhibit B.) This deed contains the following pertinent language: “* * * together with all rights and interest in switch track located on said above tract of land and right to use same as now established to connection of said switch track to its connection with Cotton Belt Railway.

“Grantors * * * have heretofore deeded to W. B. Connell the tract of land lying South of said Railroad switch with right to use said switch track, * * * which easement and privilege to use said track is hereby excepted from this conveyance.

“It is expressly understood that the switch track located on the track of land hereby conveyed, is included in this conveyance, subject to the rights heretofore conveyed to W. B. Connell, as hereinabove provided, but that the switch track located between the S. B. line of the above described tract of land, hereby conveyed and the Cotton Belt Railway, is not conveyed hereby, but only the right to use thereof, * *

By deed dated October 2, 1936, P. B. Keller et ux. conveyed to Dixie Motor Coach Corporation and Sunshine Bus Lines, Inc., a tract (Tract “K 2” — Exhibit B) situated to the south of the land previously conveyed by the May 14, 1936, deed, which the switch track crossed in getting to its connection with the Cotton Belt Railway.

This deed stated: “Grantors reserve an easement where the present switch track crosses the above property also the right to use and maintain said track for their other property and those to whom he has heretofore conveyed an interest in said track.”

By mesne conveyance, the two tracts (Tracts “K 1” and “K 2” — Exhibit B) owned by Dixie Motor Coach Corporation were acquired by Bowie Gasoline Company, which in turn conveyed by warranty deed dated January 11, 1955, to appellant, Kear-ney & Son, the property it presently owns. This deed to appellant stated: “Together with all rights and interest in switch track located on the above tract of land and right to use same as now established to connection of said track to its connection with Cotton Belt Ry. * * ⅜ P. B. Keller and wife, conveyed to W. B. Connell, the tract of land lying South of the railroad switch above referred to, and * * * conveyed to Dixie Motor Coach Corp. and Sunshine Bus Lines, Inc. a tract which is a part of the tract herein conveyed, and in said deed reserved and easement to use and maintain the said switch track and such easement and privileges granted to Connell and those retained by Keller and wife, are hereby excepted from this conveyance.”

At the time of the deeds from P. B. Keller in 1935 and 1936 the railroad switch track was in use and the owners of the respective tracts used such railroad switch track for the transportation of goods and merchandise to their respective properties. This use continued up to and subsequent to the time appellant acquired its property on January 11, 1955, for on January 15, 1955, Kearney & Son entered into a Standard Industrial Track Agreement with the St. Louis Southwestern Railroad Company, covering the track situated north of the property owned by appellee Fancher and thereafter received several shipments of goods by railroad freight cars brought onto appellant’s property over such switch track.

A dispute arose between appellant and appellees, regarding the use of the subject easement by appellees, who were driving trucks over and across appellant’s property situated to the north of the switch track. The controversy between the appellant and appellees was settled by their signing of an instrument or agreement dated July 11,1955, the pertinent portions reading as follows: “(a) That Mrs. Ruby K. Fancher, her heirs and representatives, assigns and tenants, shall have and retain the easement or right-of-way and privilege to use the railroad switch track and grounds along the North and Northeast side paralleling the above described property with a width of eighteen (18) feet, being nine (9) feet on each side of the center line of the railroad switch track.

“(b) That any use of the switch track and grounds, in excess of said width of eighteen (18) feet, has been, is, and if used in the future will be premissive only, and shall not be the basis of any prescriptive right or rights.

“(c) That each party shall have and retain any and all such rights and privileges as each shall have and possess by virtue of the respective conveyances to each.

“(d) Kearney & Son a Corporation agrees to remove that portion of its fence and obstruction between said properties and along Logan Street for a width of nine (9) feet on each side of the center line of the spur track.

“(e) That Kearney & Son a Corporation, if it so desires, may erect loading platforms, houses, structures and fences along and parellel to the North rail of said spur track but at a distance of not less than nine (9) feet from the center line of said spur track. It is understood, however, that such fence, platform and structure is not upon the property line of the property owned by Kearney & Son a Corporation but is for the purpose of preventing encroachment upon its property.

“(f) It is agreed and understood that Kearney & Son a Corporation may place and maintain a sign or notice along the easement right-of-way, but in such manner as not to interfere with the use thereon as such, stating or designating that same is private property and not a public thoroughfare.”

Under the record it is undisputed that in approximately 1959 and 1960, the Blue Diamond Company acquired the property (Tract “B” — Exhibit B) situated to the east and south of appellant’s property. The switch track on appellant’s property crossed the Blue Diamond property in getting to its connection with the Cotton Belt Railroad track. Upon acquiring its property, the Blue Diamond notified appellant that it was closing off such connecting switch track crossing the property, and that it would no longer allow railroad cars to cross its property. Thereafter, Blue Diamond did take up the track lying immediately to the south of appellant’s property line and constructed a fence across such switch track, making it impossible for railroad cars to cross the Blue Diamond property. This action effectively cut off all railroad car access to the switch track situated on appellant’s property.

On October 19, 1961, appellant received notice from the St. Louis Southwestern Railway that, since the Railway had not received any shipments on the track for a number of years, it elected to terminate the Industrial Track Agreement effective November 17, 1961. The Railroad later informed appellant that it could make such disposition of the track as it desired, since it was owned by appellant and was situated on its property.

The basic question involves the construction of the language in the deed from Keller to Connell. “The rules regarding the interpretation of deeds are, in general, equally applicable for the construction of easements. Thus, the intention of the parties is of primary importance, and, in arriving at the intention, all provisions of the instrument will be considered and given effect if possible from a fair construction of the entire instrument, considering the effect of the various paragraphs on each other.” 21 Tex.Jur.2d 133, § 14, “Easements.”

This rule of construction is similarly stated in 17A Am.Jur. 641, § 30, “Easements”, and 28 C.J.S. Easements § 26, p. 680. In determining the extent of an expressly granted easement, the following rules stated in 21 Tex.Jur.2d 167, § 38, “Easements”, are applicable: “Where an easement exists by an express grant, its use must be determined by the terms of the grant considered in the light of surrounding circumstances. Where the terms are specific, they are decisive of the limits of the use, so that the use may not be enlarged beyond that warranted by the grant. Nothing passes by implication as incidental to a grant of an easement except what is reasonably necessary to its fair enjoyment.”

From an examination of the provisions of the April 25,1935 deed from Keller to Connell in the light of the above rules of construction, it appears to us that the nature of the easement with regard to use is specifically stated. The grantee is given an easement “to use the railroad switch track and grounds.” Since the terms of the grant are specific, the limits of the use may not be enlarged. Had the grantor intended to give the grantee an easement of access over and across appellant’s property to the street, by whatever means appellees desired, he would not have provided an easement of access to the street by such indirect means.

Again under the rules of construction in examining the grant in the light of the “surrounding circumstances” it can be readily seen from an examination of Exhibits A and B that since the appellees’ property abuts on Logan and Myrtle Streets and was readily accessible to both there was no necessity to burden appellant’s property with an easement for ingress and egress of trucks and other vehicles. The only purpose of the easement therefore was for access to the railway track and not an unrestricted right of ingress and egress by trucks over the strip in question to Logan Street on the west.

The natural and reasonable interpretation of the grant of an easement to use a “railroad switch track and grounds” is the right to go onto the switch track property to load and unload railroad cars sitting on such switch track. To reasonably enjoy such easement, the right to bring the railroad cars onto the specific switch property is necessarily implied as incidental to the grant of an easement. This is the normal use one would make of a switch track and the grounds upon which it was situated. It was not as a thoroughfare for trucks and other vehicles. The granting provision does not expressly, or by implication, give the grantee a right to use the railroad switch track and grounds for anything other than such normal use. It does not expressly or by implication give to grantee a right to use the switch track and grounds for roadway purposes or as a means of access to grantee’s property, other than by railroad cars coming in over the switch track nor does it give to grantee an easement over and across appellant’s property to get to the street.

The grantor in the 193S deed did not enlarge the initial grant. His subsequent language consistently indicates that his intent was to grant nothing more than an easement “to use the railroad switch track and grounds” as such would normally be used. Following such initial grant, the grantor makes reference only to “said switch property and track,” “said switch property,” and “said switch track and property.”

The language of the two deeds from P. B. Keller to Dixie Motor Coach in 1936 (conveying the property now owned by appellant) is consistent with that of the April 25, 1935, deed. In the deed of May 14, 1936 conveying to Dixie Motor Coach the property immediately adjoining appellees’ track on the north, the grantor specifically gave the grantee all rights and interest in the switch track located on the property and the right to use such switch track as then established to connect with the Cotton Belt Railway. The grantor then referenced his prior deed to Connell, stating that the tract lying to the south of the switch track had been deeded to Connell “with right to use said switch track” and that such “easement and privilege to use said track” was excepted from the conveyance to Dixie Motor Coach. P. B. Keller referred to the right granted in his prior deed as only one to use said switch track. In the deed of October 2, 1936, from Keller to Dixie Motor Coach, the grantor makes reference to “those to whom he has heretofore conveyed an interest in said track.”

The language of these three deeds out of the common grantor, is clear and consistent to the effect that Connell was granted only a right or easement to use the railroad switch track which connected with the Cotton Belt Railway and not as an easement or privilege to use the land upon which the switch track was situated for any other purpose which might be desired.

The fact that the deed to Connell used the words “easement or right-of-way and privilege to use the railroad switch track and grounds” (emphasis added) does not change the scope of the grant from one giving the right to use a switch track only, as it would normally be used, to one giving the right to use the grounds for the purpose of access to grantee’s property. The use of the words “and grounds” adds nothing to the grant, but merely makes it clear that the holder of the easement to use the switch track also has the right to use the grounds upon which the switch track is situated in connection with the use of the switch track. It would be difficult, if not impossible, to use a switch track, bringing railroad cars in over such track to load and unload, without also using the ground upon which the track was situated. Such right of use would be, and is necessarily, implied in the grant of the right to use the switch track. By making clear that such auxiliary right exists, the grantor did not enlarge the scope and purpose of the grant of the easement to one of ingress and egress over such grounds, other than by railroad cars and the trucks or other vehicles used to load and unload such railroad cars.

The appellees contend that, since the grant of the easement did not specifically contain language to the effect that such easement should be used for railroad purposes only, they have an unrestricted right to use such easements. The contention might be valid if the 1935 deed had broadly granted “an easement over and across” the land adjoining the conveyed property, but it did not do so. Instead, the grantor specifically granted an easement to use the railroad switch track and grounds. It would be illogical to hold that, by granting an easement to use a railroad switch track, without specifically stating that such switch track was to be used “for railroad purposes only,” the grantor conveyed an easement over the switch track for truck driveway purposes. If such an interpretation were correct, then the typical power line or pipeline easement, granted for the purpose of constructing and maintaining a power line or pipeline across specified property, could be used for any other purpose, unless the grantor by specific language negated all other purposes. Such is clearly not the law. See Lange, Texas Practice, Vol. 4, Land Titles, p. 173, § 384.

The grant of “an easement” across a designated piece of property with no statement of purpose or use gives the grantee latitude in the uses to which he could put such property, provided such uses are reasonable. Such is not true, however, where the easement, as here, is granted for a particular, designated use or purpose. In the latter situation, the grantee is restricted to such stated purpose, without necessity for specific negation of all other possible uses which could be made of the property. As stated in 17A Am.Jur. 723, § 115, “Easements” : “ * * * where the parties to an instrument granting, reserving or covenanting for an easement specifically state the uses or purposes for which it is created, the instrument is, of course, limited to such uses and cannot be enlarged by any change in the use or character of the dominant tenement.”

To hold that a permanent easement of access across appellant’s property exists by virtue of the grant in the deed violates the express language and terms of the grant and enlarges the use of the appellant’s property from that stated in the express grant. Because appellees had driven trucks from the street over the railroad switch track situated on appellant’s property from time to time does not fix or determine the purpose or use contemplated by the grant. The actual language of the grant controls, for the rule is: “Where an easement is created by express grant or reservation, the extent of the right acquired depends not upon user, as in the case of easements created by prescription, * * * but upon the terms of the grant or reservation properly construed.” 28 C.J.S. Easements § 75, p. 752.

Such rule is similarly stated in 21 Tex. Jur.2d 165, § 37, “Easements”, as follows: “The extent of a prescriptive easement is determined by the user, but this rule is not applicable where easements are created by conveyance, for the extent of such easements depends on the proper construction of the grant.”

On the proposition of enlarging by prescription an easement created by conveyance the appellees, acknowledging that no Texas cases have been found exactly in point, cite an annotation in 110 A.L.R.. 915 and specifically the following statement at page 916: “ * * * where an easement is granted for use in a specified manner or for a specified purpose, an open and continuous use thereof, under a claim of right, for the prescriptive period for purposes or in a manner beyond the scope of the grant, will create an easement of the larger scope by prescription, * * *.”

The same text also states that a comprehensive search has revealed comparatively few cases involving the point and that in a majority of these the enlarged easement was held in fact not to arise because of a lack of the elements necessary to create it.

We are of the further opinion that appellees did not acquire nor are they entitled to a permanent easement over and across appellant’s property for the purpose of access to appellees’ building by virtue of the July 11, 1955 agreement, provisions of which are above set out.

The record shows that, at the time of the agreement, the railroad switch track was still being used to bring railroad freight cars onto appellant’s property, and that such use continued for a period of time thereafter. As of that time, appellant’s property, purchased some six months prior, was still burdened by the easement to use the railroad switch track as one would normally contemplate using a switch track. At that time appellant was in no position to petition to a court to declare the easement terminated and to remove the cloud on its title. Thus, appellant’s execution of the agreement defining the extent of area comprising “the switch track and grounds” is not inconsistent with its later assertion that the easement had terminated because the use of the switch track for its normal, contemplated purposes had ceased and had become impossible.

The 18 foot width stipulated in such agreement was determined by measurement from the center of the railroad spur track— that is, 9 feet on either side. This width is standard and is the minimum required for railroad switch track clearance. The agreement further specified that the appellant could erect loading platforms along the north rail of the spur track, again at a distance of not less than 9 feet from the center line of such track. The agreement reflects that the parties contemplated use of such railway switch track for normal railroad uses. The switch track could and was still being used for normal railroad purposes and appellant at that time recognized that appellees still had a right to use the railroad switch track under the 1935 deed. The agreement merely reaffirmed the existence of such easement and that such right of use existed as of the time thereof. The agreement did not expressly or by implication give the appellees rights greater than those originally granted or extend the easement to use the switch track indefinitely in the future even though its use for railroad purposes became impossible. The agreement emphasizes that the right of appellees to use the switch property was derived from the deed of April 25, 1935. Other than specifically defining and limiting the use of the railroad switch track and grounds to 9 feet on each side of the center line of the railroad switch track, the agreement did nothing more than reaffirm the existence of the rights each party had by virtue of the respective conveyances to each. It specifically negated the existence of any prescriptive rights or the creation thereof. The appellant did not by such agreement acknowledge or agree that the easement to use the railroad switch track and grounds granted was an easement of access to the street by trucks. Clearly, there are no words of grant or conveyance in the agreement. To the contrary it is specified in paragraph “(c)” of the agreement that the rights of the respective parties by virtue of the prior deeds remained unchanged and were in no way enlarged. The fact that appellant, while the switch track remained usable for railroad purposes, tolerated the driving of trucks across the switch track should not prevent or estop appellant from now attempting to terminate any unauthorized use of the switch track property and appellant’s adjacent land.

The record reflects that the purpose for which the easement was granted has ceased to exist. Because of the cessation of, and impossibility of, use in accordance with the specific purpose, granted, the easement has now terminated and appellant’s title should be cleared of the cloud cast by the prior grant of such easement. The rule is stated in Shaw v. Williams, 332 S.W.2d 797, p. 800 (Eastland Civ.App., 1960, no writ hist.), as follows: “ ‘An easement granted for a particular purpose terminates as soon as such purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment.’ 28 C.J.S. Easements § 54, p. 718.”

In Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950), the Supreme Court stated: “The Commission of Appeals in the case of Griffith v. Allison, 128 Tex. 86, 96 S.W.2d 74, 77 (opinion adopted by the Supreme Court), said: ‘It appears to be well-settled that an abandonment, even of an easement acquired by purchase, occurs when the use for which property is dedicated becomes impossible, or so highly improbable as to be practically impossible, or where the object of the use for which the property is dedicated wholly fails.’ ” See also 21 Tex.Jur.2d 179, § 50, “Easements”; 28 C.J.S. Easements § 54, p. 718; Woodmen of the World Camp No. 1772 v. Goodman, 193 S.W.2d 739 (Dallas Civ.App., 1945, no writ hist.); Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922 (Comm.App., 1942, opinion adopted).

If this had been a general-purpose, access easement, such purpose or use is still possible, and the easement has not terminated. The easement granted here, however, was not one of access over appellant’s property to a street situated to the west. It was an easement to use a switch track. It provided access for railroad cars used by appellees, to the Cotton Belt Railroad Line lying east of appellees’ property. In our opinion the easement has terminated because it would be illogical to say that an easement to use a switch track to gain access to railroad cars sitting on a switch track for loading does not terminate when it has become physically impossible for railroad cars to come onto such track.

Because an easement, granted for a limited and specific purpose, has continued to exist for a long period of years is no basis for subjecting appellant’s property to the burdens of completely different uses which were not originally granted nor contemplated. Had the original grantor intended to grant an easement for driveway purposes or for ingress and egress to appellees’ property by trucks or other vehicles, he could have provided therefor in the original grant, rather than using language limiting such use. The original grantor gave only a right to use the railroad switch track so that freight cars from the nearby railroad might be brought onto such track in order to serve both appellees’ and appellant’s property. This was the scope and limit of the easement granted. Since such use is now impossible the easement has terminated and a new and different use cannot be substituted therefor.

The judgment of the trial court is in all things reversed and judgment here rendered for appellant, declaring said easement to be terminated and clearing title to appellant’s property of any cloud thereon by virtue of such easement.

Reversed and rendered.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    John T. MITCHELL, Appellant, v. Milton AKERS et ux., Appellees.
    No. 16662.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 18, 1966.
    Rehearing Denied March 25, 1966.

      Bailey, Williams, Weber & Allums, Dallas, for appellant.
    James W. Rainey, Jr., Irving, for appel-lees.
   DIXON, Chief Justice.

Appellees Milton Akers and wife Helen Akers filed suit against appellant John T. Mitchell for damages arising out of the drowning of their son, Philip Akers, aged three years and eight months, in appellant’s private swimming pool located on appellant’s property. Appellees’ action was brought as parents in their own behalf pursuant to Art. 4671, Vernon’s Ann.Civ. Statutes, and also as sole heirs in behalf of the child’s estate pursuant to Art. 5525, V.A.C.S.

The two actions are quite different. Under the common law no recovery of damages was permitted for the death of a person. Such a right was conferred on a surviving husband, wife, child and parents of a deceased by the passage of Art. 4671, et seq., V.A.C.S. It is to be regarded as a new cause of action purely statutory in nature.

On the other hand an action under Art. 5525, et seq., V.A.C.S. is not a new cause of action. The statute provides for the survival of a common law action for damages which was instituted or could have been instituted by a person who sustains injuries later resulting in death. The cause of action may be asserted by the heirs or the administrator of the deceased in behalf of the estate of the deceased. Landers v. B. F. Goodrich Co., Tex., 369 S.W.2d 33, 35; 25A C.J.S. Death p. 596; 22 Am. Jur.2d 618.

The contributory negligence of the deceased will defeat recovery under either of the two statutes. But that is a matter which need not concern us here, for the deceased, being a child only three years and eight months of age, as a matter of law cannot be held to have been con-tributorily negligent. Eaton, et al. v. R. B. George Investments, Inc., 152 Tex. 523, 260 S.W.2d 587.

However, a jury found contributory negligence and proximate cause in answering issues as to whether the mother had failed to keep a proper lookout for the safety of the little boy. These findings are a bar to the recovery by the parents of damages sustained by them as parents as a result of the child’s death, which damages they sought under the provisions of Art. 4671, V.A.C.S. Blocker v. Brown Express, Inc., Tex.Civ.App., 158 S.W.2d 347; Williams v. Texas Pacific R. Co., 60 Tex. 205; McMillion v. Wilkinson, Tex. Civ.App., 135 S.W.2d 231; Baker v. Dallas Hotel Co., 5 Cir., 73 F.2d 825; 17 Tex.Jur.2d 636; 16 Am.Jur. 89; 25A C.J.S. Death p. 710. Whether the mother’s contributory negligence also barred recovery under Art. 5525 is a question which we shall consider later in this opinion.

Appellant and appellees live in the same block in the City of Irving, Texas. There are many children of tender years living in the neighborhood, a fact which was known to appellant.

Appellant’s swimming pool ranges in depth from two or three feet to more than six feet. The back yard where the pool is located is surrounded by a concrete block fence except on the side facing the rear of the house. This fence is approximately six feet in height and has several wooden gates for entry and exit. An ordinance of the City of Irving requires that private swimming pools shall be fenced in and all gates shall be equipped with self-closing and self-locking devices. Appellant’s gates were equipped with self-locking devices but not with self-closing devices. The pool had not been in use for some time but on the occasion here involved it was filled with water in order to keep it from cracking or otherwise deteriorating.

On October 25, 1962 the little boy’s mother missed him and started a search for him accompanied by another lady who lived in the neighborhood. They found his tricycle in the open gate to appellant’s back yard. After a considerable search, for the water was murky, they retrieved the child’s body from the pool. Artificial resuscitation was attempted to no avail. The child was dead. A doctor who arrived on the scene soon after the discovery, examined the body of the child. He gave it as his opinion that the child had died from drowning after he had struggled two or three minutes during which straggle he had suffered physical pain and mental anguish.

Appellant testified that before leaving that morning he walked around and visually checked the gates to see if they were locked, and he decided they were locked, but he did not take hold of them and manually check them; and he was not telling the jury as a mechanical fact or a scientific fact or absolute truth that this gate was locked on that day.

The jury’s verdict was as follows: (1) appellant Knew or should have known that the place where the swimming pool was maintained was one upon which children were likely to trespass; (2) appellant did not know or realize nor should he have known or realized that the pool involved an unreasonable risk of death or serious bodily harm to children; (4) appellant failed to keep self-closing and self-latching devices designed to keep and capable of keeping the gates securely closed when not in use; (5) which was negligence, and (6) a proximate cause of the child’s death; (7) the jury did not find from a preponderance of the evidence that appellant failed to lock the gate in question on the occasion in question; (10) Mrs. Helen Akers, the child’s mother, failed to keep a proper lookout for the safety of the child; (11) which was negligence, and (12) a proximate cause of the child’s death; (13) damages were found in the amount of $819.10 (which included expenses incurred for funeral and burial) and $5,000 for the child’s physical pain and mental anguish as a result of the accident in question.

The court overruled appellant’s motion for judgment on the verdict and sustained appellees’ motion to disregard the jury’s answer to Special Issue No. 2 and to render judgment in favor of appellees.

In his first four points on appeal appellant asserts that there was some evidence and sufficient evidence to support the jury’s answer to Special Issue No. 2, therefore it was error for the court to disregard said answer and to render judgment for appellees.

We do not agree with appellant. We find no evidence in the record to uphold the jury’s finding that appellant did not know or realize and should not have known and realized that the swimming pool involved an unreasonable risk of death or serious bodily harm to children.

Appellant himself testified that he knew there were many children in the neighborhood, that his swimming pool was attractive to children and it was dangerous to all children. He admitted that he did not have a self-closing device on the gate in question and that for a small sum of money, at the most sixty dollars, he could have equipped the gate with a self-closing device. On at least one occasion he had found children in his back yard and had made them leave the premises.

Appellant, a builder, further testified that he had stored various kinds of building equipment on what was at one time a vacant lot which he owned next door to his house. On various occasions he had found neighborhood children playing on the equipment and had made them leave.

Other witnesses testified to the attractiveness and dangerous character of the pool for children. They also testified that on the day of the tragedy there were a number of toys in the pool area, some in the water and some in chairs, which were visible from the gate when open. Appellant’s first four points are overruled.

In his next six points on appeal appellant says that the jury’s findings of contributory negligence on the part of the child’s mother and proximate cause in connection therewith, precluded recovery by appellees in this case.

As we have stated earlier in this opinion, the contributory negligence of the parent or parents bars a recovery by the parents for their damages in a suit brought by them for the death of their child under Art. 4671, V.A.C.S. But does the contributory negligence of the parents also bar a recovery of damages for funeral and burial expenses and for the pain and mental anguish of the deceased when the suit is brought in behalf of the estate of the deceased pursuant to Art. 5525, V.A.C.S. by the parents as the only heirs of the deceased? We have concluded that the question must be answered in favor of the parents as heirs.

An administration of the estate of the child has not been necessary. Ap-pellees are the only heirs of the child. Ordinarily the administrator or the heirs of a person who has sustained injuries resulting in death may recover damages in behalf of the estate of the deceased if the deceased himself could have recovered damages had he survived. Funeral and burial expenses are recoverable by the administrator or heirs in such suit. Landers v. B. F. Goodrich Co., Tex., 369 S.W.2d 33. So are damages for physical pain and mental anguish endured by deceased preceding his death.

Appellees in answer to appellant’s contention point out that the negligence of the parents will not be imputed to a minor child in a suit by the child for injuries sustained by the child. Therefore, reason appellees, the negligence of the parents cannot defeat a recovery of damages by the child’s estate in a suit brought after the death of the child by the heirs.

Subsection (d) of Section 41 of the Texas Probate Code, V.A.S.S., contains two provisions which we shall discuss: (1) No conviction shall work corruption of blood or forfeiture except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in willfully bringing about the death of the insured (see also Constitution of Texas, Art. 1, Sec. 21, Vernon’s Ann.St.); and (2) “nor shall there be any forfeiture by reason of death by casualty.”

Early decisions construed the constitutional provision and the statute literally and held that a willful murderer who was an heir of his victim, did not forfeit his right but would inherit his part of the property of the deceased. Hill v. Noland, Tex.Civ. App., 149 S.W. 288; Murchison v. Murchison, Tex.Civ.App., 203 S.W. 423. However, later decisions hold that without contravening or circumventing the constitutional and statutory provisions a way is provided through equity to compel a murderer to surrender the profits of his crime and thus prevent his unjust enrichment. This result is accomplished by imposing a constructive trust on the murderer’s portion of the inheritance in favor of the heirs other than the murderer. Parks v. Dumas, Tex.Civ.App., 321 S.W.2d 653; Pritchett v, Henry, Tex.Civ.App., 287 S.W.2d 546. Our Supreme Court in discussing Hill v. Noland, supra, impliedly approved the constructive trust principle. Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857, 859. See also Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, 561. We agree with the statement of Judge Ren-fro of the Fort Worth Court of Civil Appeals in the Parks case when he said, “Certainly the statutes should not be used as a vehicle to acquire property through pa-renticide.” Such a use would be contrary to public policy.

But we have concluded that the constructive trust doctrine should not be applied in a case coming within the provisions of Subsection (d) of Article 41 of the Probate Code above quoted, which says that there shall be no forfeiture by reason of death by casualty. To hold otherwise would be to say that the Legislature intended in effect to disinherit an unfortunate heir, innocent of intent to kill, whose contributory negligence has been found to be a proximate cause of the death of a person toward whom he occupied the status of an heir.

It is common knowledge that amidst the multitude of hazards which modern living conditions have thrust upon us many accidents occur due to the inadvertent oversight or negligence of father, son, mother, daughter, grandparents, grandchildren or others. We certainly do not view negligence lightly, but it is not to be included in the same category as murder and other intentional acts where moral turpitude revolts us. It would require a miracle man, indeed, to live long in this day and age without having at one time or another committed an act of negligence. And he might well consider himself lucky if his negligence did not result in a fatality.

We know of no Texas case in point, but there are many cases arising in other jurisdictions which are in point. These jurisdictions have statutes similar to our Death Statute and our Survival Statute. The cases hold that a negligent parent, spouse, child, etc. cannot recover under a death statute if his negligence caused or contributed to cause the death; but that he can recover as heir under a survival statute. Several of these cases are listed in a footnote hereto. Appellant’s fifth, sixth, seventh, eighth, ninth and tenth points are overruled.

In his eleventh, twelfth, thirteenth and fourteenth points appellant assails the verdict awarding $5,000 for physical pain and mental anguish suffered by the child. Appellant contends that there is no evidence or there is insufficient evidence to support a finding that the child suffered physical pain and mental anguish between the time he fell into the pool and the time he lost consciousness; and that the award is excessive.

Dr. Gilbert, who arrived on the scene within a few minutes after the child was lifted from the pool, examined the child. It was his opinion that the child died of drowning after struggling for two or three minutes before losing consciousness. During said two or three minutes the child probably endured physical pain and mental anguish. The doctor saw no bruises or marks on the child which might indicate that the child may have fallen against a hard object and become unconscious before becoming immersed in the water. We do not consider that the award of $5,000 is excessive. Appellant’s eleventh, twelfth, thirteenth and fourteenth points are overruled.

In his fifteenth, sixteenth and seventeenth points appellant says that there was no evidence, or there was insufficient evidence, to support the jury’s answer to Special Issue No. 6 to the effect that appellant’s failure to keep self-closing and self-latching devices on the gate in question was a proximate cause of the death of the child.

We see no merit in these points. The evidence is undisputed that the gate was open with the child’s tricycle standing in the opening shortly prior to the recovery of the body from the pool. It is undisputed that appellant did not have a self-closing device on the gate, though a City ordinance was in effect requiring both self-closing devices and self-latching devices on gates which gave access to private swimming pools. The fence was six feet tall — much too tall for a child of three years and eight months to climb over. It is not seriously questioned by appellant that the child gained access to the pool through the open gate. The latch was toward the top on the inside of the gate, which is six feet in height. Had the gate been closed and latched it is inconceivable that the child could have reached over the top of the gate to the inside latch. Appellant’s last three points are overruled.

The judgment of the trial court is affirmed.

       Fisher v. Dye, 386 Pa. 141, 125 A.2d 472. Fact that husband’s negligence contributed to wife’s death did not bar recovery under survival statute, though husband was sole heir.
      Davis v. Margolis, 108 Conn. 645, 144 A. 665. Recovery under survival statute allowed for all heirs, including father and son, though their negligence was sole cause of injury resulting in death.
      Carney v. Concord St. Ry. Co., 72 N.H. 364, 57 A. 218. Negligence of parents not being imputable to child there was no question of contributory negligence in case under survival statute.
      McCann v. City of Detroit, 234 Mich. 268, 207 N.W. 923. Under survival statute contributory negligence of parents not imputable to child so they may recover as heirs, but they could not recover under death statute.
      Kuehn v. Jenkins, 251 Iowa 718, 100 N.W.2d 610. Under survival statute contributory negligence of beneficiary is not a defense.
      Nashville Lbr. Co. v. Busbee, 100 Ark. 76, 139 S.W. 301, 38 L.R.A.,N.S., 754. Fact that father was sole beneficiary did not render his contributory negligence a defense to an action by him as administrator to recover damages for son’s suffering from injuries resulting in death.
      Wymore v. Mahaska County, 78 Iowa 396, 43 N.W. 264, 6 L.R.A. 545. Contributory negligence of beneficiary bars recovery under death statute, but not under survival statute.
      Potter v. Potter, 224 Wis. 251, 272 N.W. 34. Husband could recover under survival statute though his negligence was one of causes of his wife’s death.
      Burns v. Goldberg, 3 Cir., 210 F.2d 646. Under survival statute husband’s negligence did not bar recovery, though part of estate would go to husband.


author: PHILLIPS, Justice.

text:
    TEXAS MUNICIPAL RETIREMENT SYSTEM, Appellant, v. Ruth ROARK, Appellee.
    No. 11381.
    Court of Civil Appeals of Texas. Austin.
    April 6, 1966.
    Rehearing Denied April 27, 1966.

      Gaynor Kendall, Austin, for appellant.
    Clark, Thomas, Harris, Denius & Winters, Conrad Werkenthin, Mary Joe Carroll, Austin, for appellee.
   PHILLIPS, Justice.

This suit was brought by Mrs. Ruth Roark, the appellee here, against the Texas Municipal Retirement System, appellant, on the theory that she was entitled to a retirement annuity from the Retirement System under the provisions of a statute enacted in 1963 (Chapter 223, Acts Regular Session, 58th Legislature) as an amendment to the Act governing the system (Article 6243h, Vernon’s Civil Statutes of Texas.) The amendment of 1963 is set out in Sec. VI, subsection 8, of Article 6243h, Vernon’s Ann.Civ.St.

The case was tried before the court sitting without a jury and the pertinent facts were stipulated.

The court entered judgment ordering appellant to pay appellee a monthly retirement benefit of $100.67 per month beginning October 31,1963 and continuing for her life, and upon her death, to pay her nephew $50.34 per month for his life, and that such monthly amounts from October 31, 1963 to June30, 1965 (aggregating $2,114.07) should be paid to plaintiff in a lump sum, with interest thereon from date of judgment at 6% per annum.

The appellant Texas Municipal Retirement System has perfected its appeal from this judgment.

We reverse the judgment of the trial court and render judgment that appellee take nothing in this suit.

Appellant is before this Court on four points of error, however inasmuch as we sustain its first point we need not discuss the other three.

Appellant’s first point of error is that the statute under which appellee claims benefits (Chapter 223, Acts 58th Legislature) is invalid, because it attempts to require payment of a pension to plaintiff under a retirement plan or system to which the affected cities of Marfa and Pasadena have not consented, thus violating the provisions of Sec. 51 — f, Art. Ill, of the Texas Constitution, Vernon’s Ann.St. that participation by cities in the statewide retirement plan “shall be voluntary.”

We sustain this point.

For practical purposes, the facts of the instant case are undisputed. These facts concerning Mrs. Roark’s employment by the cities of Marfa and Pasadena, as well as her dealings with the System, are detailed in a written stipulation introduced by plaintiff. The pertinent facts are:

On July 1,1948, the City of Marfa, Texas, elected to become and became a participating municipality in the Texas Municipal Retirement System.

The plaintiff-appellee, Ruth Roark, was an employee of the City of Marfa on July 1, 1948, and had been an employee of that municipality for a period of 276 months prior to that date. As an employee of a participating department of the City of Marfa on the date the City became a participating municipality in the System, Mrs. Roark became a member of the System for the first time.

As a beginning member with prior service with Marfa, Mrs. Roark claimed and was issued a prior certificate covering the 276 months for which she had worked for Mar-fa prior to the date of its participation in the System at an average prior service compensation of $250.00 per month. This certificate not only recites that it “is issued in accordance with and subject to the provisions of chapter 24, Acts of the 51st Legislature,” but further expressly states the statutory condition upon which it was issued as follows :

“When membership ceases, this prior service certificate shall become void. Should one again become a member after his membership has terminated, such person will not be entitled to credit for prior service.”

After the City of Marfa became a participating municipality of the System, Mrs. Roark remained in its employment for a period of ten months. During that ten-month period she made current-service deposits to the System in the aggregate amount of $132.00.

On April 30, 1949, Mrs. Roark was discharged from her employment with the City of Marfa.

On October 1, 1949, Mrs. Roark entered the employment of the City of Pasadena, Texas, which was not a participating municipality of the Texas Municipal Retirement System.

Both prior to and during the period of her employment with the City of Pasadena, Mrs. Roark was advised by officials of the System in regard to her status and rights under the statute, and what was required to keep them effective. The substance of the advice given her is set out in a letter opinion from counsel for the System to the Director under date of December 8, 1959. That letter pointed out to her that her 23 years of creditable service at Marfa was not sufficient to qualify her for service retirement at less than age sixty (that 28 years of creditable service was necessary). Further, since she was 53 years of age when she was discharged at Marfa, and since more than sixty months would elapse before she would reach age sixty (required for service retirement with at least fifteen years of creditable service) she was told that she would lose her membership in the System and all claim for credit for her antecedent service, unless she returned to work for some participating municipality within sixty months from the date of her discharge at Marfa. The letter pointed out that the City of Pasadena was not a participating municipality of the System, and that her employment there would not preserve her membership in the System. On this point, the letter concludes :

“Only by returning to service of some participating municipality within the sixty months period can she preserve her membership in the Texas Municipal Retirement System for a sufficient period to complete the service requirements and membership requirements of the act, so as to entitle her to a service retirement benefit at age sixty.”

Despite the information given her concerning consequences of her absence from employment in a participating municipality, Mrs. Roark remained in the employment of the City of Pasadena. On or about June 1, 1954, Mrs. Roark was advised by the System officials that her membership in the System had terminated by reason of her continuous absence from employment by a participating municipality for more than sixty months; and she was advised that she had the right to withdraw the $132.00 deposited by her with the System while she was working for the City of Marfa, together with interest accumulated thereon. She thereafter applied for refund of such deposits and interest, and was paid ($143.15) such sum by the System.

On August 1, 1956, the City of Pasadena, Texas elected to become a participating municipality of the Texas Municipal Retirement System. Mrs. Roark, as an employee of the City of Pasadena on the effective date of its becoming a participating municipality again became a member of the System, and she filed a claim against the City of Pasadena for prior service credit with that municipality for the 82 months she had worked there. She was issued a certificate covering those 82 months of prior service with Pasadena at an average prior service compensation of $300.00 per month, and that instrument likewise contained the language quoted above as conditions of its remaining effective.

From August 1, 1956, Mrs. Roark continued in the employment of the City of Pasadena for a period of 39 months. She was discharged from her employment with the City of Pasadena on October 31, 1959. During the period from August 1, 1956 until the termination of her employment of the City of Pasadena on October 31, 1959, the City of Pasadena being a participating municipality during all such time, Mrs. Roark made monthly deposits with the Texas Municipal Retirement System, such deposits being in the aggregate amount of $387.85. With interest allowed by the System on the monthly deposits, the amount standing to the credit of her individual account at the end of her employment with the City of Pasadena amounted to $392.92, and with interest allowed through the 60 months thereafter, the amount standing to her credit on the books of the System at the present date is $438.36. She has not withdrawn any of the contributions made by her during her employment by Pasadena.

Mrs. Roark has been employed by no cities which are participating municipalities of the Texas Municipal Retirement System except for her employment by the City of Marfa and her employment by the City of Pasadena, as above related.

The Act itself is quite complicated and for the purposes of this opinion it is not necessary to state these requirements in detail. The benefits are calculated on an actuarial basis. If the member remains in the employment of a participating municipality until he becomes entitled to retire, his own accumulated deposits (including interest) plus an equal amount of money contributed by the participating city (or cities) by which he was employed are utilized by the System to pay the retiring employee a “current service annuity” consisting of a monthly benefit each month so long as he lives, with sixty monthly payments guaranteed. The amount of this benefit is determined as follows: using approved life-expectancy (mortality) tables and allowing interest at the rate prescribed by the statute, the System computes the amount of the benefit it can pay the retiring employee each month during his life (but with at least sixty monthly payments guaranteed), in consideration of its accepting in return (essentially as a single premium paid to the System at the retirement date) the sum of (a) the employee’s own accumulated deposits (including interest previously earned thereon), plus (b) an equal matching amount out of the funds belonging to the participating city (or cities) by which he was employed during his period of “current service.” The amount so calculated constitutes the standard benefit payable on account of the “current service” of an employee who earns retirement under the statutory formula; or, he has the privilege of selecting one of several optional payment plans each of which is the actuarial equivalent of (i. e., having the same present actuarial value as) the standard service retirement benefit. (Sub-secs. 2 and 3, Sec. VII, Art. 6243h).

From the above, it is apparent that current service annuities are paid for: one half by the employee-member, and one half by the participating city (or cities) by which he was employed; further, that the amount of the benefit is in direct proportion to length of creditable current service and the amount of monthly deposits made by the member to the System during his employment. Moreover, as has been shown, the Act (except as it may have been modified by the 1963 amendment under which plaintiff claims benefits) provides that where an individual’s membership in the System has once terminated (by his withdrawal from employment in a participating municipality and refund of his deposits), if he again thereafter re-enters the System as an employee of a participating municipality, he enters as a new member: his creditable “current service” runs (and he makes deposits with the System) only from the date of the new membership based upon the new employment.

In addition, upon the terms and conditions prescribed in the statute, “each person who is an employee of a participating department of a particular municipality on the effective date of participation of such department and who becomes a member on such effective date shall be entitled to receive credit for ‘prior service’ ”, Subsec. 1, Sec. VI, Art. 6243h, i. e., for service as an employee of such department prior to its participation in the System, Subsec. 22(a), Sec. II, Art. 6243h.

Here again, the details of calculating this prior service are not pertinent here. It is suffice to state that the entire cost of the prior service is one charged by the System against the participating municipality which issued the prior service certificate which lapses because of withdrawal of an employee from employment of a participating municipality, or because of his death, reduces the amount which the City otherwise would pay the System. Conversely, should the lapsed prior service certificate be reactivated, it would increase the amount which the. participating municipality must pay to the System.

From the above recital of Mrs. Roark’s employment history, it is apparent that she did not, during the period of her employment with the cities of Marfa and Pasadena, qualify for a retirement benefit with Texas Municipal Retirement System under the then-existing law. Specifically, she did not qualify for retirement by reason of her service with Marfa, because she absented herself from the employment of a participating municipality for more than sixty consecutive months after her discharge at Marfa, and thereby lost her right to claim credit for prior service with that City. When she reentered the System upon the subsequent participation of the City of Pasadena, she did not remain in its service for a sufficient length of time to qualify for a retirement benefit by reason of that service alone.

So her claim for benefits is based upon an act passed in 1963, after her employment with any participating city had long since terminated, to-wit, Chapter 223, Acts of the Regular Session of the 58th Legislature. This statute purported to add a new subsection 8 to Section VI of the Act relating to Texas Municipal Retirement System (Art. 6243h, Vernon’s Civ.Stats.). The first paragraph of the new subsection added by the amendment provides that:

“8. (1) Notwithstanding any provi-vision of this Section VI or any other Section of this Article 6243h to the contrary, a person employed by two (2) or more participating municipalities shall be able to cumulate credits for the total ‘creditable service’ rendered by such employee to all such municipalities if the following conditions are met:
a. Such employee must have accumulated at least twenty-two (22) years of ‘creditable service,’ as that term is defined herein, with the participating municipality for which such employee was employed when he first became a member of the Texas Municipal Retirement System, which accumulation shall have been earned through continuous employment with such municipality without break in service.
b. Such employee must have been employed by each such participating municipality on the effective date of participation of each such municipality.
c. As of the date of eligibility for retirement, as herein defined, such employee shall have been employed by a participating municipality.
d. There shall have been an interruption of continuous, cumulative employment by such employee with such municipalities wherein such cumulative credit for ‘creditable service’ was earned of less than nine (9) months.
e. The total credits for ‘creditable service’ with all municipalities wherein such credits were earned shall equal or exceed twenty-eight (28) years as of the date of retirement.
f. Such employee shall have earned a credit for ‘creditable service’ from each such participating municipality of at least five (5) years.
If the foregoing conditions are met, the employee shall be able to cumulate his credits for ‘creditable service’ rendered to two (2) or more municipalities in determining eligibility for retirement benefits, payments of benefits to such employee, and methods of financing the payment of such benefits. The Board shall adopt rules and regulations which shall divide equitably the cost attributable to the credits and benefits herein provided for between or among the municipalities wherein such credits were earned.”

It will be noted that the above quoted paragraph (1) delineates a most unusual set of circumstances to define eligibility for a pension under the System. But even these unusual provisions would not entitle Mrs. Roark to a pension under the System because those conditions are spelled out in terms of prospective operation of the statute, and would affect only persons accumulating all or part of the credits subsequent to the effective date of the statute. Mrs. Roark, on the contrary, has not been employed by any Texas city, and specifically, has not been employed by any member city of the System at any time since the Act in question was passed. In consequence her claim is based on paragraphs (2) and (3) of the Act in question, which expressly purport to have retroactive effect, so as to grant a pension to any person who would have qualified under the classifications delineated in paragraph (1), had that section been in effect from and after January 1, 1959. These provisions are as follows:

“(2) The provisions of this subsection 8 of Section VI shall be applied ’ retroactively in favor of all persons eligible for benefits under the provisions of said Article 6243h, as herein amended, from and after January 1, 1959. Persons who would have become eligible for benefits under the provisions of this Act prior to the enactment hereof and subsequent to January 1, 1959, shall make application therefor within 180 days from the date hereof and not later.
(3) The benefits inuring to employees under this subsection shall apply whether or not such employee has withdrawn his accumulated deposits or such deposits have been automatically withdrawn by lapse of time; provided that the Board shall adopt rules and regulations providing for the return of such withdrawals to the Fund or suitable adjustment of benefits to take into account such withdrawals.”

It is the appellant’s position that the portions of the Act under which Mrs. Roark claims benefits, specifically paragraphs (2) and (3) above quoted, are unconstitutional inasmuch as they establish an additional pension system to the one already established without the consent of the two cities liable for its payment.

In 1944 the Legislature, pursuant to authority granted it by Section 51 — f of Article III of the Texas Constitution, established the Texas Municipal Retirement System to operate statewide, embracing cities and towns which voluntarily elect to participate therein. This Section of the Constitution provides the following:

“Sec. 51 — f. The Legislature of this State shall have the authority to provide for a system of retirement and disability pensions for appointive officers and employees of cities and towns to operate Statewide or by districts under such a plan and program as the Legislature shall direct and shall provide that participation therein by cities and towns shall be voluntary; provided that the Legislature shall never make an appropriation to pay any of the cost of any system authorized by this Section.”

The general question presented by the statute, then, is what is meant by the provision in Section Sl-f of Article III that “participation * * * by cities and towns [in the retirement plan or system thereby authorized] shall be voluntary”? More specifically, once a city has agreed to participate in and pay the costs of a retirement system covering its present and future employees under stated terms and conditions, can the Legislature change the System so as to establish pensions for former employees who failed to qualify for retirement under the original plan, and impose the costs of the new coverage upon the municipalities particularly affected thereby, without any further consent on their part?

Appellant concedes that the alteration attempted to be made in the System by Chapter 223 is quite restricted. Under paragraphs (2) and (3) of the new subsection 8, it imposed only the cost of providing a pension for one former employee of two participating municipalities, at a total cost of something above $17,000, of which the two cities would be required to pay approximately 97%. However, appellant contends that if the Legislature can establish an additional plan or system for one former employee not previously eligible, without the consent of the affected municipalities, it can alter the System in more ambitious and far-reaching ways without their agreement or consent. That such a construction enters a world without guidelines, leaving determinations of degree to be made by the Legislature and reviewed by the courts, where it was the obvious purpose of the framers of the amendment to give the municipality the power to decide on the basis of a presently defined statutory framework.

The Supreme Court considered a similar problem in the case of City of Fort Worth v. Howerton, 149 Tex. 614, 236 S.W.2d 615 (1951). There the City had established a locally-administered pension system pursuant to Section 51-e of Article III of the Constitution. Subsequently, in 1949, the Legislature enacted Article 6243i, H.B. 391, Vernon’s Civil Statutes, which assumed to establish a Police Officers’ Pension Fund covering policemen in the City of Fort Worth, and provided that a designated portion of the assets of the locally-administered system should be transferred to the new police system. The Court held that as Fort Worth was authorized to establish the locally-administered system under Section 51-e, and had done so, thereby establishing certain rights and duties,

“ * * * the Legislature is not authorized to change the plan, as is undertaken by Article 6243i, without the consent of the City of Fort Worth, and that that part of the law which undertakes to do so is inoperative as against the City of Fort Worth.”

In Howerton, the limitation forbidding the Legislature from changing the plan without the consent of the City was implied. In the case at bar, the limitation against imposing a plan upon cities, so as to make them participate involuntarily in a plan to which they have not consented, is express. And what the Court said in that case is applicable here with equal or greater force:

“It is the general policy of the law, where rights have been fixed under a constitutional provision, that the Legislature is without power to destroy or impair such rights. It is also the general rule that the Legislature does not have power to enact any law contrary to a provision of the Constitution, and if any law, or part thereof, undertakes to nullify the protection furnished by the Constitution, such law, or part thereof, that conflicts with the Constitution is void.” (Citing cases.)

For the above reasons, the Act under which Mrs. Roark claims benefits is inoperative as to the two towns involved because it violates Section 51 — f, Article III.

The cases City of Dallas v. Trammell, 129 Tex. 150, 101 S.W.2d 1009, 112 A.L.R. 997 (1937) and Woods v. Reilly, 147 Tex. 586, 218 S.W.2d 437 (1949), which plaintiff-appellee cited in the District Court, are distinguishable. Those cases stand for the proposition that a person who is included within a pension system established by statute does not, at least so far as future payments are concerned, have a vested contractual right to receive a pension as au-. thorized by existing laws. His rights are “predicated upon the anticipated continuance of existing laws” and consequently are subject to the power of the Legislature to change, without violation of any contract rights. That is, the member has no contract rights that the existing laws be continued, and change in the laws relating to the pension system consequently do not violate his contractual rights. But those cases do not hold that the Legislature has power to amend all existing retirement systems covering city employees, without the consent of the affected municipality, and despite constitutional provisions giving the city the power of choice. As shown, the Howerton case illustrates the principle that where the city is by the Constitution given the power to establish a pension system, and it has made that election, the Legislature may not create a different system and substitute it, without the city’s consent. By the same force, the constitutional provision here invoked gives the city the power to choose whether or not to participate in a statewide system which the Constitution authorizes to be established. It cannot be deprived of that power to choose by subsequent legislation which adds on to the existing system another (or additional) plan or system covering employees (or former employees) who do not qualify for pensions under the System in which the city agreed to participate.

We hold that the acquiescence of the city to what, for all practical purposes, amounts to a new levy upon its monetary resources set aside for retirement benefits, must be obtained either through an ordinance or some other appropriate method that affirmatively shows that the city has given its approval thereto.

By counterpoint, appellee has urged that the appellant System is not entitled to question the validity of the Act under which Mrs. Roark claims benefits, on the premise that the constitutional objections relate to the cities of Marfa and Pasadena and, since appellant did not make them parties, the System cannot refuse to pay the pension merely because the Act violates the provisions discussed above. Appellee has cited cases which state the general rule that where a person assuming to question the validity of a statute is unable to show that the Act directly affects his rights or obligations, he will not be heard to say that the Act may affect others in an unconstitutional way.

We do not agree with appellee’s argument in this regard. The obligations and rights of the System are directly affected by the statute, because if the statute is unconstitutional as applied to the above-mentioned two cities, the System will not be protected in paying out the monies which the statute directs it to pay. The appellant System is therefore one whose rights are affected by the operation of the statute. See City of Amarillo v. Tutor, Tex.Com. App., 267 S.W. 697.

We reverse the judgment of the trial court and render judgment that appellee take nothing by her suit, however, this holding is without prejudice to any rights Mrs. Roark may have if the cities involved give their consent.

Reversed and rendered.

      . Point II. Chapter 223 assumes to compel payment of a pension to plaintiff solely on the hasis of services rendered by her as a former employee of two Texas cities. The act was passed after all such services had been wholly performed by plaintiff, after she had been fully paid for such services on the basis of then-existing law, and after her employment had terminated. That portion of the act is void because it violates Sections 44 and 53 of Article HI of the Constitution of Texas, which prohibit additional compensation to be paid or au-thorked to be paid to municipal employees after service has been rendered. Point III. Paragraphs (2) and (3) of Section 1, Chapter 223 violate Section 56 of Article III because it is a special law regulating the affairs of the Cities of Marfa and Pasadena.
      Point IY. If (as appellee contends) appellant is not entitled to raise the questions of unconstitutionality of the act, then there is a fundamental defect of parties defendant and the judgment below must be reversed for that reason.

      . Texas Company v. Honaker, Tex.Civ. App., 1926, 282 g.W. 879, er. ref., per opinion 115 Tex. 509, 283 S.W. 1071 and Collins v. State of Texas, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439 (1911).


author: McDONALD, Chief Justice.

text:
    The CITY OF HOUSTON, Appellant, v. R. H. FORE, Appellee.
    No. 4461.
    Court of Civil Appeals of Texas. Waco.
    April 7, 1966.
    Rehearing Denied April 28, 1966.
    William A. Olson, City Atty., Ralph A. Keen, Asst. City Atty., Homer T. Bouldin, Houston, for appellant.

      Danny R. Edwards, Joel McCarty, Jr., Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal by the City of Houston from a take-nothing judgment in a suit for paving assessments made and levied against defendant Fore.

Plaintiff City filed suit for paving assessments made and levied against defendant, and for foreclosure of the assessment lien. Defendant answered (among other things), that he had no actual notice of the benefits hearing: that the only notice of the benefits hearing given was by publication under Section 9, Article 1105b Vernon’s Ann.Tex. Civ. St.; and that the notice by publication was not sufficient to give notice to him as required under the due process clause of the 14th Amendment to the U. S. Constitution.

Trial was to a jury which found that the notice by publication, “stated the highway to be improved in sufficient manner to inform the abutting property owners that their property was to be improved.” (These matters are not here in controversy).

The Trial Court overruled plaintiff’s motion for judgment and granted defendant’s motion for judgment non obstante that plaintiff take nothing, (and recited that notice by newspaper publication was insufficient notice to defendant).

Plaintiff appeals on 5 points, contending:

1) The trial court erred in not entering judgment for plaintiff.
2) The trial court erred in holding the notice by publication (Sec. 9, Art. 1105b) was insufficient.

The City of Houston determined to make certain paving improvements on Delz Street in the City, and by ordinance passed on May 11, 1961, set the per foot assessment for such, and set hearing on benefits for June 7, 1961 at 11:00 o’clock, and provided for notice of such hearing to be given the property owners involved by advertisement inserted in the Houston Press for 3 times. Such advertisement was in the Houston Press on May 26, 27 and 29, 1961. Defendant Fore was one of the abutting property owners. He did not read the newspaper publication giving notice of the benefits hearing on June 7th; and had no knowledge of the hearing from any source; and did not attend the hearing. The hearing was held and assessment levied against defendant’s property for $946.10.

The record reflects defendant had resided at 505 Delz in Houston for 24 years; owned the property; his address was on the tax rolls and known to the City; and the City had in fact addressed communications to defendant at his address.

Plaintiff instituted the instant case against defendant for judgment and foreclosure of lien for such paving assessment. Defendant contends the notice of the benefits hearing given him by publication in the Houston Press insufficient notice under the Due Process clause of the 14th Amendment to the United States Constitution.

Section 9, Article 1105b, V.A.T.S. provides that no assessment shall be made against abutting property or its owners for paving “until after notice and opportunity for hearing as herein provided, and no assessment shall be made against any abutting property or owners thereof in excess of the special benefits of such property, and its owners in the enhanced value thereof by means of such improvements as determined at such hearing. Such notice shall he by advertisement inserted at least three (3) times in some newspaper published in the city where such special assessment fax is to be imposed * ⅜

The notice given defendant by the publication 3 times in the Houston Press was in compliance with the above provisions of Section 9, Article 1105b.

The sole question is whether such notice, under the facts of the instant case, is sufficient under the 14th Amendment, U. S. Constitution.

The 14th Amendment provides among other things “ * * * nor shall any State deprive any person of life, liberty, or property, without due process of law ⅜ *

The Due Process clause of the 14th Amendment provides as a minimum that before one can be deprived of life, liberty, or property, that such adjudication be preceded by notice and opportunity for hearing. The right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear, or default, acquiesce or contest.

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Where the names and post office addresses of those affected by a proceeding are at hand, the method of giving notice of the benefits hearing in this case was insufficient.

So, notice by publication is not enough with respect to a person whose name and address is known or very easily obtainable. Mullane v. Central Hanover Bank (1950), 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Schroeder v. City of New York (1962), 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255; Walker v. City of Hutchinson (1956), 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178; Wisconsin Electric Power Co. v. City of Milwaukee (1957), 352 U.S. 948, 77 S.Ct. 324, 1 L.Ed.2d 241.

The Wisconsin Electric Power Company case, supra, is a case involving a paving assessment levied by the City. In that case the Supreme Court of Wisconsin’s action in holding constructive notice by publication adequate, was vacated and remanded for consideration in the light of Walker v. City of Hutchinson, supra. On remand the Wisconsin Supreme Court, 275 Wis. 121, 81 N.W.2d 298, held the constructive notice by publication did not meet the requirement of due process.

We think under the facts of the instant case; where name and address of defendant were known to the City; and defendant had no actual notice; that the constructive notice by publication given defendant is inadequate under the requirements of the 14th Amendment, U. S. Constitution.

Plaintiff’s points and contentions are overruled.

Affirmed.


author: CHADICK, Chief Justice.

text:
    PEPSI-COLA COMPANY, Appellant, v. Judy SPANGLER and Robert Spangler, Appellees.
    No. 7728.
    Court of Civil Appeals of Texas. Texarkana.
    March 8, 1966.
    Rehearing Denied April 12, 1966.

      William L. Peek, Jr., Wheeler, Watkins, Hubbard & Patton, Victor Hlavinka, Atch-ley, Russell, Hutchinson & Waldrop, Tex-arkana, for appellant.
    Harkness & Friedman, Texarkana, for appellees.
   CHADICK, Chief Justice.

This is a venue case. The trial court denied a plea of privilege and such order is reversed and the case remanded.

Together with her husband, Judy Spang-ler filed suit in a District Court of Bowie County, Texas, against the Great Atlantic & Pacific Tea Company and The Pepsi-Cola Company, alleging both were foreign corporations with permits to do business in the State of Texas. A common law negligence action to secure damages for personal injuries was plead. The implication of the trial court order is that venue of the suit in Bowie County is authorized by Subdivisions 3, 23, and 29a of Art. 1995, Vernon’s Ann.Tex.Civ.St.

Mrs. Judy Spangler, as a business invitee, was shopping in the Great Atlantic & Pacific Tea Company’s store in Philadelphia, Pennsylvania, on July 28, 1963; she selected and lifted a carton of bottled soft drinks labeled Pepsi-Cola from a display rack. One or more bottles in the carton exploded as she moved the carton, and the glass therefrom injured her to some extent. The testimony admitted in support of Bowie County venue was that Mr. and Mrs. Spangler were residents of Bowie County on July 18, 1963, and that on such date and at the time of trial there was a Pepsi-Cola plant in Bowie County.

The Pepsi-Cola Company, a Delaware corporation with a permit to do business in Texas, for venue purposes is resident in Dallas County where it maintains an office and by the general venue provision of Art. 199S is entitled to claim the privilege of being sued in Dallas County unless suit elsewhere is authorized by an exception to the general rule of venue. Pittsburg Water Heater Co. of Texas v. Sullivan, 115 Tex. 417, 282 S.W. 576; Taylor v. Wilson, 99 Tex. 651, 93 S.W. 109; Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W.2d 861 (mandamus denied, Jones v. Hickman (Tex.Com.App.) 121 Tex. 405, 48 S.W.2d 982); American Fidelity & Casualty Co. v. Windham (Tex.Civ. App.) 59 S.W.2d 259, no writ. The general venue privilege of being sued in Dallas County yields in this instance to the special venue provisions of Subd. 23, Art. 1995, if the evidence herein establishes a factual environment in which Subd. 23 functions. The evidence will be examined and previous decisions studied to determine the effect of Subdivision 23 in this case.

Testimony that a Pepsi-Cola plant was located in Bowie County July 18, 1963, and at the time of trial might be construed as proof that The Pepsi-Cola Company had one or more employees at its plant in the county on July 18, 1963, and thereafter. The duties of the employees, if any, are not inferable from this meager testimony. An employee or servant is not necessarily an agent or representative, as these latter terms are used in Subd. 23. This distinction is made in Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194, and Brazos River Trans. Elec. Cooperative, Inc. v. Vilbig (Tex.Civ.App.) 244 S.W.2d 266, Writ Ref., N.R.E. See also 1 McDonald’s Texas Civil Practice, Sec. 4.30.3. A subdivision 23 agent or representative is shown by proof of “ * * * a situation in which the business of the defendant is, in more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of ‘agency’ and the other of ‘representative’ ”, There is no evidence of any person or entity thus qualified connected with The Pepsi-Cola Company’s business or residing in Bowie County on July 18, 1963, or at any other pertinent time.

Venue for trial of the suit in Bowie County against Great Atlantic & Pacific Tea Company is not questioned. On the basis that The Pepsi-Cola Company is a necessary party to appellees’ suit against the Great Atlantic & Pacific Tea Company it is argued that venue of the case is Bowie County by the terms of Subd. 29a, Art. 1995. The pleadings base the action upon joint and separate tortious acts or omissions of the two defendants. Against Great Atlantic & Pacific Tea Company specifically, the negligence alleged as proximately causing the plaintiff’s injury is “placing said bottles of beverage in the hot sunshine making them prone to explode when moved by a person shopping in said store”. An alternative plea first mentions The Pepsi-Cola Company’s negligence when it charges that “this accident is one which would not have happened except for the negligence of some person or persons in the employ of Pepsi-Cola Company and the foreknowledge of the reason for explosion is within the knowledge or was within the knowledge of said defendants and the plaintiffs plead res ipsa loquiter”. (Emphasis added.)

The Pepsi-Cola Company is a necessary party in this suit as that term is used in Subd. 29a, Art. 1995, “if the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly suable in that county can be obtained only in a suit to which both defendants are parties”. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774. See Venue, 1 McDonald’s Texas Civil Practice, 545 Sec. 4.35 (II). Neither the pleading nor the proof evinces a bar to the Spanglers securing all relief that they seek from Great Atlantic & Pacific Tea Company in the ab-sense of The Pepsi-Cola Company as a party.

The appellees’ brief is silent on Subd. 3, Art. 1995, and apparently abandons the subdivision’s venue provisions as support for the trial court order. An evaluation of the statement of facts warrants a conclusion that the venue facts of the case have not been fully developed. In compliance with Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458, the case is remanded to the trial court.


author: RENFRO, Justice.

text:
    SOVEREIGN LIFE INSURANCE COMPANY, Appellant, v. Fred T. BUSSE, Individually and for David Joseph Busse, minor son, Appellee.
    No. 16722.
    Court of Civil Appeals of Texas. Fort Worth.
    April 1, 1966.
    Rehearing Denied April 29, 1966.
    Cervin & Stanford, and Paul H. Stanford, Dallas, for appellant.
    Carter, Gallagher, Jones & Magee, and Charles D. Mayes and Ben T. Warder, Jr., Dallas, for appellee.
   RENFRO, Justice.

The Sovereign Life Insurance Company issued a student accident policy to Fred T. Busse to insure Mr. Busse’s minor son, David, against certain risks.

Plaintiff had the option to take the twenty-four hour protection policy at an annual premium of $9.00, or a more restricted policy at a rate of $3.00 per annum. He chose to take the $3.00 premium policy.

Said policy covers:

“(A), while attending school during regular school hours and while on the school premises — such coverage on the school premises extends during the period beginning one hour before school commences and ending one hour after the student is dismissed from school;

“(B). while traveling in or struck by a public conveyance or a vehicle of any kind directly between home and school;

“(C). while participating in school-sponsored activities (including religious services) under the supervision of a proper school authority wherever such activity is taking place;

“(D). while traveling under the supervision of a proper school authority to and from a school-sponsored activity covered hereunder;

“(E). while participating in athletics sponsored by the school and under the supervision of a proper school authority or during interscholastic or intercollegiate competition.”

On January 24, 1964, David was a student in Bishop Dunne High School. The school is located in the southern part of Dallas. David was a cheer leader. On the night in question Bishop Dunne had a regularly scheduled basketball game with Jesuit High School. The latter school is in the northern part of Dallas. David was directed by school authorities to be present at Jesuit School, in his cheer leader uniform, by 8:00 P.M. He was told that transportation would not be furnished; that he was to get to the game on his own. David went home from school, and, later in the afternoon or evening, he and a friend went to Jesuit in plaintiff’s automobile. He arrived on time and participated in leading cheers at the game. He was required by his school authorities to be present and perform his duties.

After the game David and his friend got in plaintiff’s car and, after proceeding on Inwood Road, about 100 yards from the Jesuit parking lot entrance David “rear-ended” the automobile ahead of him.

He then crossed, or attempted to cross, Inwood to “flag” a ride back to the school parking lot to report the accident to a police officer.

He was struck by a car and seriously injured.

It is obvious David was not covered by provisions (A), (C) and (E).

Plaintiff claims he is entitled to recover under provisions of (B) and (D). Defendant contends plaintiff is not entitled to recover under any of the provisions of the policy.

From a judgment for plaintiff, defendant appealed.

“A common meaning of ‘supervise’ is ‘to superintend,’ which was defined by the Supreme Court of Texas in Burrell Engineering & Construction Co. v. Grisier, 111 Tex. 477, 240 S.W. 899, as meaning: ‘To have charge and direction of; to direct the course and oversee the details; to regulate with authority; to manage; to have or exercise the charge and oversight of; to oversee with the power of direction; to take care of with authority; to oversee; to overlook.’” Nederlandsch-Amerikaansche, Etc. v. Vassallo, 365 S.W.2d 650 (Houston Civ.App., 1963, ref., n. r. e.).

In Charles v. American Progress. Health Ins. Co. of N. Y., 127 So.2d 459 (Fla. Dist.Ct. of App., 3rd Dist., 1961), it was held that a policy coverage to a student while riding as a group to or from the school actually in a vehicle selected by and operated under supervision of duly delegated school authorities did not extend coverage to an insured for injuries sustained in an accident while operating his motorscooter en route to the site of a varsity softball game in which he was scheduled to participate, even though the coach permitted him to take his motor scooter to the game.

In our opinion the language in paragraph (D) is clear and unambiguous. It provides for coverage, in case of injury, only if the traveling is under the supervision of a proper school authority.

The evidence is undisputed that David was not traveling under the supervision of a proper school authority when he was injured. His injury, therefore, was not covered in paragraph (D).

Paragraph (B)' provides for recovery if the student is struck by a vehicle “directly between home and school.” As heretofore stated, David was a student in Bishop Dunne High School. The injury occurred at night while David was returning from a basketball game at Jesuit High School to his home. The two schools were across town from each other. David left Bishop Dunne School between 3:30 and 4:00 P.M. and proceeded to his home in another part of the city. From his home he drove to the Jesuit School.

The only reasonable construction to be given (B) is that the student is covered if struck by a vehicle while traveling directly between home and the school in which he is enrolled as a student.

On the night in question David would have been insured under the twenty-four hour policy. Unfortunately for plaintiff, the $3.00 policy did not cover the accident in question.

Plaintiff urges that the following cases support the judgment for him: Cunningham v. World Mutual Health & Accident Insurance Co., 203 Pa.Super. 352, 201 A.2d 316; Dzurko v. Pilot Life Insurance Company, 195 Pa.Super. 267, 171 A.2d 885; Lumbermen’s Mutual Casualty Co. v. Broadus, 237 Miss. 387, 115 So.2d 130, 74 A.L.R.2d 1248; Unger v. Guarantee Reserve Life Ins. Co., 166 Ohio St. 409, 142 N.E.2d 857; and World Insurance Co. v. Puckett, 93 Ga.App. 538, 92 S.E.2d 215.

All of said cases are readily distinguished from the instant case by the facts involved or the policy provisions construed.

Judgment reversed and rendered that plaintiff take nothing.