author: POPE, Justice. MURRAY, Chief Justice

text:
    Carlos PLATA, Appellant, v. Dr. John C. GOHMAN, Appellee.
    No. 13903.
    Court of Civil Appeals of Texas. San Antonio.
    June 20, 1962.
    Rehearing Denied July 11, 1962.
    Morris Atlas, Stafford, Atlas & Spillman, McAllen, for appellant.
    Adams & Graham, Harlingen, for appel-lee.
   POPE, Justice.

This is a personal injury case brought by Carlos Plata, a pedestrian, against Dr. John C. Gohman, the driver of a vehicle which struck Plata from the rear. Judgment was for the defendant because the jury found that Plata at the time and on the occasion of the accident failed to keep a proper lookout, and that this was a proximate cause of the accident. Plata contends that the findings of his contributory negligence (1) have no support in the evidence, and (2) are against the great weight of the evidence. We affirm the judgment.

Plata and three companions were walking south along the left side of a paved country road at night. The pavement was eighteen feet wide. Plata was about one foot inside the paved part of the road. A companion was walking on his left side just off the pavement, and two other companions were following them, two abreast, also off the pavement. It was dark and Plata was wearing dark clothing. Plata was facing oncoming traffic, which was proper. Art. 6701d, § 81, Vernon’s Ann.Tex.Stats. Defendant, Gohman, was driving his car in a southerly direction and overtook a car in front of him. Both cars had their lights shining. As defendant was even with the car which he was passing and on the left side of the road, he struck Plata. No one else was hit. Defendant did not see Plata until after he struck him. The jury found that Gohman was negligent in failing to keep a proper lookout, in attempting to pass another vehicle when it could not be done with safety under all the facts and circumstances, and in failing to sound his horn. These were proximate causes of the accident.

We shall first consider Plata’s law point of “no evidence.” Plata’s argument is that he did not keep a lookout because as a matter of law he was under no duty to keep a lookout, since he was situated at a place the law permitted him to be when struck. He concludes that the issues should not have been submitted at all, and though answered against him, they should have been disregarded.

The jury was asked: “Do you find * * * that the Plaintiff, at the time and on the occasion of the accident in question, failed to keep a proper lookout for vehicles traveling south on Sharyland Road ?” They also were asked if such failure was a proximate cause of the accident. To hold that there was no duty on the part of the pedestrian, the evidence must be so conclusive that reasonable minds cannot differ in the conclusion. In J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 453, 135 S.W.2d 698, 699, the test is stated: “The issue of whether or not given acts constitute negligence is essentially a jury question. The facts of each case must be given independent consideration, and seldom are the facts of any two cases so identical as that the decision in one could be held to be authority for a like decision in the other.” See Green, Proximate Cause in Texas Negligence Law, 28 Tex.Law Rev. 761-764; cf. 2 Harper and James, § 18.8.

Looking at the evidence as of the time the trial court submitted the charge to the jury, not afterwards, we conclude that the court would have been in error in ruling on the lookout issues as a matter of law. The negligence issue inquired about matters as they existed “at the time and on the occasion.” This was proper, for the facts and circumstances are important. The evidence raised disputes about those facts and circumstances. Plata was walking where the statute said he ought to be walking. Sec. 81, Art. 6701d. Gohman, on the other hand, was passing a vehicle in a proper passing zone. Secs. 52, 57, Art. 6701d. In other words, both the pedestrian and the driver had rights to be at the same place on the road. The road was straight and there were no cars approaching or lights visible from the south. There were no obstructions which hindered Plata’s moving onto the shoulder if he observed overtaking traffic. His clothing was dark and obscured his presence upon the unlighted road. There is evidence that Plata had some notice of impending danger. There were lights overtaking him from behind. Goh-man testified that before he started to pass the car ahead of him, “I honked at the car I was going around * * * I know that.” He said he was watching the car in front of him, was going about forty-five miles an hour, and that he switched the dim lights to bright. He said he was watching the road so he could clear the car he was overtaking and stay on the pavement. These are some of the facts and circumstances which the trial judge had before him at the time he submitted the charge to the jury. While the jury could believe or disbelieve them, the judge had to submit the issues to the jury. Intersection cases are not precisely in point, but they suggest similar rules and results with respect to the facts and circumstances which must be considered. The principle is the same. Even one who has the right of way is not excused from exercising ordinary care for his own safety. Even though one is not required to anticipate negligent conduct, he is not entitled to close his eyes to that which is plainly visible and which would have been observed by a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877; Lofland v. Jackson, Tex.Civ.App., 237 S.W.2d 785; Norris Bros. v. Mattinson, Tex.Civ.App., 145 S.W.2d 204; Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910.

The principle is well stated in 2A Blashfield, Cyclopedia of Automobile Law and Practice, § 1415:

“A pedestrian on the highway at night on whichever side he walks must exercise ordinary care, in the situation in which he puts himself and under the circumstances surrounding him. * * So one who uses the roadway without taking any precautions for his own safety, though he can see the lights of an automobile which strikes him long before it reaches him, is guilty of contributory negligence * *

The findings were not against the great weight of the evidence. We reach this conclusion by applying the test stated by In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Plata relies upon Barrett v. Posey, Tex.Civ.App., 343 S.W.2d 337, wherein the jury found a pedestrian negligent in failing to keep a lookout to the rear, and the appellate court remanded the case on the facts. The distinctions between the surrounding facts of that case and this one are significant. In the Barrett case the pedestrian was seven years old. Plata was twenty-eight years old. In Barrett, the accident occurred in open daylight; this accident occurred at night. In Barrett, only one car was proceeding down an unobstructed highway, twenty-one feet wide; in this case, one car was passing another on a road eighteen feet wide. In the Barrett case, the pedestrian was probably on the shoulder of the highway; in this case there is evidence that Plata was on the road.

The judgment on the verdict is affirmed.

MURRAY, Chief Justice

(dissenting).

I do not agree with the opinion of the majority, wherein it is held that there was sufficient evidence to support the findings of the jury that Plata, at the time and on the occasion of the accident in question, failed to keep a proper lookout for vehicles traveling south on Sharyland Road, and that such failure was a proximate cause of the accident. There is no evidence in the record that Plata was not keeping a proper lookout at the time he was struck by Dr. Gohman’s car. No witness gave any testimony that Plata was not keeping a proper lookout at the time he was struck from the rear. The testimony given by Plata concerning this matter is as follows:

“A I remember that I was walking a very little on the edge of the pavement, but I don’t know how long that was before the accident.
“Q Do you recall hearing the car come up behind you ?
“A No.
“Q Do you recall a car blowing its horn?
“A No.
“Q Do you recall seeing the lights of a car before you were struck?
“A No.
“Q Did anybody shout or yell at you to look out ?
“A It could have been, but I didn’t hear anything.
“Q Do you remember anybody pushing you out into the road?
“A No.
“Q You say you were walking on the edge of the pavement ?
“A When I remember, I was walking right on the edge of the pavement.
“Q Your body might have been hanging over, but where were your feet with relation to the pavement itself?
“A My feet were at the edge of the pavement like this (witness demonstrating on the courtroom floor), and the other one on the right side.
* * * * * *
“Q All right, you may take your seat now, Carlos. It was in that position, as far as you remember, that you were hit from behind ?
“A That is what I remember.
“Q What do you remember after you got hit — do you remember anything out at the scene of the accident itself ?
“A I don’t remember anything about that.
“Q The next thing you remember, where were you ?
“A In the hospital.”

Thus it is seen that Plata has no recollection as to just what happened before he was struck. He is suffering from retrograde amnesia. There is no evidence that he was not keeping “a proper lookout,” whatever that might be under the law, when he was struck. It was night time. His three companions did not testify to any facts showing a failure to keep a proper lookout. Dr. Gohman did not see Plata at all and only knew he hit something. The driver of the car that was being passed, Manuel Salinas, did not testify to any fact indicating an improper lookout by Plata.

Where there is no evidence of failure to keep a proper lookout, an injured party who is bereft of all recollection as to the details of the accident is presumed to have kept a proper lookout for his own safety. In Koock v. Goodnight, Tex.Civ.App., 71 S.W.2d 927, the Court said:

“But such presumption does not obtain as against direct and positive testimony of an eyewitness as to what actually occurred. Because of appellees’ earnest insistence on this issue, we have again carefully reread the entire testimony of the witness Hector. While he did not recollect with accuracy every detail as to what transpired between the time the bus stopped and the collision occurred, it is clear, we think, that he saw Mrs. Goodnight at all times from the instant she discovered the loss of her purse, until she was struck by Jordan’s car. Though he testified on cross-examination that she did look back towards Kyle before she was struck, she did so only when the car was immediately upon her, and too late to escape injury, and the jury in effect so found. He was a disinterested witness, and his testimony was positive that she did not look out for her own safety as she ran into the highway around the front end of the bus. Under this state of the evidence we think the presumption insisted upon by appellees was overthrown.”

Where the doctrine of res ipsa loquitur does not apply, as here, a specific act of contributory negligence must he alleged and proved by the defendant, either by direct or circumstantial evidence, it is never presumed from the mere happening of the accident. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481; Dixon v. Burling, Tex.Civ.App., 277 S.W.2d 957; Dewhurst v. South Texas Rendering Co., Tex.Civ.App., 232 S.W.2d 135.

There were no sidewalks along Sharyland Road where Plata was walking at the time he was struck and knocked unconscious. Under the provisions of Sec. 81, Art. 6701d, Vernon’s Ann.Civ.Stats., he was walking where he had a legal right to be, he is presumed to have been keeping a proper lookout for his own safety, and Dr. Gohman has completely failed to produce any evidence to the contrary. The evidence does not, therefore, raise the issue of contributory negligence. In MacDonald v. Skinner, Tex.Civ.App., 347 S.W.2d 950, the Court said:

“Appellant contends that there is neither direct nor circumstantial evidence to support the jury’s finding that the deceased did not keep a proper lookout, other than the fact that the accident did happen. There is no testimony from any witness who says that the deceased was not paying attention to what he was doing, or that he was looking anywhere other than where he should have been looking.
“After a careful examination of the Statement of Facts, we have concluded that there is no direct evidence to support the jury’s finding that the deceased failed to keep a proper lookout. In the absence of direct evidence to support the jury finding, we next looked for circumstances in evidence from which the jury might reasonably have concluded that the deceased failed to keep a proper lookout. Aside from the fact that the accident did happen, we have been unable, after a most careful scrutiny of the entire record, to find any circumstances in evidence from which the jury might properly have inferred that the deceased had failed to keep a proper lookout.”

The majority assumes without proof that Plata was keeping only a lookout to his front and failed to keep a lookout to his rear. Even if this be a correct presumption, nevertheless, it fails to show failure to keep a proper lookout on the part of Plata. The lookout that is required of a pedestrian traveling on the left edge of a highway is to his front, and not to his rear, and he has no duty to keep a constant or periodical or parttime lookout to his rear, unless he knows, or in the exercise of reasonable diligence should have known, that, danger is bearing down on him from that direction. Solana v. Hill, supra.

A pedestrian traveling on his left-hand, edge of the highway is not required to presume that a motorist approaching him from his rear will negligently drive upon the wrong side of the road and strike him, but he has a right to presume that motorists will pass him by driving on the right side of the road as is required by Art. 801(A), Vernon’s Texas Penal Code. Holmes v. Cooley, Tex.Civ.App., 308 S.W.2d 150; Valley Film Service v. Cruz, Tex.Civ.App., 173 S.W.2d 952; 2A Blashfield, Cyclopedia of Automobile Law and Practice, §§ 1411, 1416, and authorities cited.

The evidence shows and the jury found that Dr. Gohman was guilty of negligence in attempting to pass the auto in front of him at the time and place where he struck Plata. The majority seem to place considerable stress upon the fact that the passing by Dr. Gohman was not undertaken in a no-passing zone. Of course, if it had been undertaken in a no-passing zone, Dr. Goh-man would have been guilty of negligence per se, regardless of other circumstances. Surely they do not mean to hold that a motorist may pass another motorist, in a passing zone, regardless of whether the left-hand side of the highway is occupied by pedestrians, and if by doing so he would strike the pedestrians. A pedestrian walking on the highway in keeping with the provisions of Sec. 81, Art. 6701d, supra, is not a trespasser.

Even though Dr. Gohman may have sounded his horn before attempting to pass the lead car, which the evidence shows and the jury found he did not do, and even though car lights were shining from Plata’s rear, Plata had a right to presume that traffic from the south would pass him on his right side, and he was not required to change his lookout from his front to his rear. Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481; Barrett v. Posey, Tex.Civ.App., 343 S.W.2d 337; 60 C.J.S. Motor Vehicles § 270, p. 650.

Plata did not suddenly run out onto the highway, he was not attempting to cross the highway; he was not preparing to go to a place of danger. He did not suddenly stop or change his direction. He was steadily walking along the left-hand edge of the highway, where the law gives him a right to walk and requires him to face to his front. It is a difficult matter for a person to keep a constant lookout to both his front and rear at one and the same time. In Manning v. Block, Tex.Civ.App., 322 S.W.2d 651, the Court said:

“Split-second timing is not ordinarily required of operators of motor vehicles. Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229, 231. This would place an intolerable burden upon the average citizen. None but the most alert could safely venture on the highways. We have concluded that we cannot uphold the finding of the jury, under the circumstances obtaining, that Manning was negligent in having momentarily released his brake pedal preparatory to moving his car forward as the other car began its movement to enter Veatch Avenue. To do so would require a person to have the same ability to see, observe and react as readily to the circumstances of the road behind him as he is required to do ahead. This is physically impossible to do, and the law has rightly placed the burden on the car operator approaching from the rear, in the event of a collision, to explain his action. Renshaw v. Countess, supra (Tex.Civ.App., 289 S.W.2d 621).”

Ordinarily, the best a pedestrian can do is keep a lookout to his front and presume the traffic approaching him from the rear will not disobey the law, travel on the wrong side of the road and run him down. No doubt, Plata, after a hard day’s work picking bell peppers in a field, on his long walk back to his camp, did not feel like whirling as he walked to keep a constant lookout to both his front and rear, and this the law does not require of him.

In my opinion there is no evidence in this record that Plata failed to keep a proper lookout to his rear and that such failure was a proximate cause of the accident.

The trial court should have disregarded the jury’s finding to Special Issues Nos. 24 and 25, and rendered judgment in favor of Carlos Plata against Dr. John C. Goh-man in the amount found by the jury.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    ALLIED FINANCE COMPANY, Appellant, v. M. T. SHAW et al., Appellees.
    No. 16335.
    Court of Civil Appeals of Texas. Fort Worth.
    June 1, 1962.
    Rehearing Denied July 13, 1962.

      Locke, Purnell, Boren, Laney & Neely and J. L. Shook, Dallas, for appellant.
    Walker, Day & Harris and Joe Day, Jr., Fort Worth, for appellee M. T. Shaw.
    Tom J. Murphy, Jr., Fort Worth, for appellee C. L. Gage.
   BOYD, Justice.

From the fragmentary record before us we gather the following:

On March 14, 1958, Allied Finance Company sued Marvin W. Parker in a District Court of Dallas County for debt, and Parker and M. T. Shaw for foreclosure of a chattel mortgage lien and a certificate of title lien on a Cadillac automobile, which it alleged to be in the possession of Shaw. Shaw claimed the car free of Allied’s alleged lien. Parker did not answer, and he died on January 24, 1959. Shaw filed a plea of privilege to be sued in Tarrant County, where he resided. Before the plea of privilege was acted upon, the date not being shown by the record, Allied had the automobile taken from Shaw’s possession by writ of sequestration. Allied then amended its petition and asked for the appointment of a receiver. A receiver was appointed. He sold the car for $4,950.00 cash. Shaw appealed from the order appointing the receiver, but did not supersede it, and this Court dismissed the appeal as moot because the receiver had already sold the car. Shaw v. Allied Finance Company, Tex.Civ.App., 319 S.W.2d 820.

The trial court overruled Shaw’s plea of privilege, and the Dallas Court of Civil Appeals affirmed. Shaw v. Allied Finance Company, Tex.Civ.App., 330 S.W.2d 690. The Supreme Court reversed and ordered the venue changed to Tarrant County. Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107.

On March 11, 1960, while the venue appeal was pending, Shaw filed, subject to his plea of privilege, a cross-action seeking damages against Allied for wrongful sequestration, conversion of the car, abuse of process, and other recoveries. He feared that two years might elapse from the time the car was taken until the suit should be removed to Tarrant County. His fear was not wholly unjustified, since the car was seized in 1958 and the cause reached Tar-rant County on November 8, 1961.

On August 12, 1960, after the Supreme Court’s mandate ordering the venue changed had been filed in the Dallas County District Court, Allied took a non-suit as to its cause of action against Shaw, and had the same dismissed. This was after Allied had caused the car to be taken from Shaw and had it sold by the receiver. Allied now has no claim pending against Shaw.

The opinion of the Supreme Court, ordering transfer of the cause, was handed down on June 22, 1960, and its mandate was issued on July 22. On September 15, 1960, Allied filed a plea of privilege in the Dallas County District Court “because M. T. Shaw is attempting to have said cross-action transferred to Tarrant County, Texas.” On the same day there came on to be heard in the Dallas County District Court Shaw’s motion for an order to the Clerk to transfer the cause to Tarrant County. A judgment granting such motion, among other things, was entered on September 27, 1960. By this time Parker’s widow, as administratrix, had been made a party defendant. In the judgment ordering transfer of the cause, the suit against Parker’s estate was severed from Shaw’s cross-action ; Allied’s alleged lien was foreclosed as a “first lien”; and the receiver was instructed to deliver the proceeds of the sale of the car to Allied. This was done. On November 18, 1960, this judgment was modified so that such proceeds were ordered paid by Allied to the District Clerk of Dallas County, subject to the order of the proper District Court of Tarrant County. This was done. The Dallas County District Clerk was instructed to make a transcript of all judgments entered in the cause and send it to the District Clerk of Tarrant County, but to hold all original papers for use in that part of the suit retained in Dallas County.

Both Allied and Shaw filed objections to this judgment. Allied objected to the transfer of the cross-action to Tarrant County and to that part of the judgment ordering it to pay the proceeds of the sale of the car to the Clerk. Shaw complained that the court was in effect attempting to finally adjudicate the merits of a controversy which the Supreme Court said must be tried in Tarrant County, and objected to that part of the judgment ordering Allied to pay the money to the Clerk, contending that it should be paid to Shaw. Allied appealed from this judgment, and Shaw filed cross-points. On September 5, 1961, the Court of Civil Appeals at Texarkana dismissed the appeal for lack of jurisdiction.

On November 8, 1961, the limited transcript reached Tarrant County and was lodged in the 48th District Court. Thereafter, C. L. Gage intervened, claiming the proceeds of the sale of the car and all other rights of Shaw in the cause, under an assignment executed by Shaw, which was attached as an exhibit to Gage’s petition, and which appears to be sufficient to effect the transfer.

Shaw filed a motion for an order requiring Allied to show cause why the Dallas County District Clerk should not be required to pay the money over to Shaw.

Allied filed a plea of privilege to the show cause order, Gage’s intervention, and Shaw’s cross-action. This cross-action is not in this record, and counsel say it is still in the files of the Dallas County District Clerk. Gage filed nothing in respect of this plea of privilege. Shaw filed a motion to strike it, and subject to the motion to strike, filed a controverting plea. Allied filed, subject to its plea of privilege, a general denial and pleas of limitation to Shaw’s cross-action. The court sustained Shaw’s motion to strike Allied’s plea of privilege, and entered an order requiring the District Clerk of Dallas County to pay to Gage, as Shaw’s assignee, the proceeds of the sale of the car. From this judgment Allied has appealed.

From a supplemental transcript filed in this Court on April 6, 1962, it appears that the District Court of Dallas County, after notice of appeal had been given and a supersedeas bond had been filed by Allied, ordered its Clerk to transfer the proceeds of the sale of the car to the District Clerk of Tarrant County.

We think the judgment should he affirmed.

When the Supreme Court ordered the venue changed to Tarrant County, the question as to where the case should be tried was settled, including the cross-action. Goodrich v. Superior Oil Co., 151 Tex. 46, 245 S.W.2d 958. It is immaterial whether the cross-action was filed before or after the contest of the plea of privilege. Hall v. Castleberry, Tex.Civ.App., 283 S.W. 581; Hickman v. Swain, 106 Tex. 431, 167 S.W. 209. After the transcript from the District Court of Dallas County had been filed in the District Court of Tarrant County, Allied’s last plea of privilege, if maintained, would have taken the case back to Dallas County. We think the trial court properly struck that plea.

We are unable to concede that Allied has any justiciable interest in the fund in controversy. Since that fund constituted the proceeds of the sale of the car which Allied had caused to be taken from Shaw’s possession, and which Shaw claimed by title superior to Allied’s mortgage, and since Allied, after the Supreme Court has ordered the case transferred to Tarrant County, took a non-suit and dismissed as to Shaw, we think Allied dismissed as against Shaw its claim to the fund.

The non-suit and dismissal did not destroy the adverse judgment transferring the cause. Deatherage v. Kerrigan, Tex.Civ.App., 294 S.W. 698, error refused. Allied says that it had not been served with process on Shaw’s cross-action. It was on file in the District Court of Dallas County long before the non-suit. The rule seems to be that a plaintiff who dismisses his cause of action must take notice of the state of the record at that time, and it is not necessary that he be cited to answer a cross-action then pending. Davis v. Wichita State Bank & Trust Co., Tex.Civ.App., 286 S.W. 584.

The judgment is affirmed.


author: HUGHES, Justice.

text:
    FIRST STATE BANK OF CORPUS CHRISTI, Appellant, v. VON BOECKMANN-JONES COMPANY, Appellee.
    No. 10982.
    Court of Civil Appeals of Texas. Austin.
    June 27, 1962.
    Rehearing Denied July 18, 1962.

      Clark, Thomas, Harris, Denius & Winters, Mary Joe Carroll, Austin, for appellant.
    Cofer & Cofer, Douglass D. Hearne, Austin, for appellee.
   HUGHES, Justice.

This is a venue case in which appellee, Von Boeckmann-Jones Company, seeks to sustain venue in Travis County of its suit against appellant corporation, the First State Bank of Corpus Christi, under subdivisions 7 and 23 of Art. 1995, Vernon’s Ann. Civ.St.

Subdivision 7 provides, in part, that in all cases of fraud, suit may be brought in the county where the fraud was committed, and subdivision 23 provides, in part, that suits against a private corporation may be brought in the county in which the cause of action or part thereof arose.

The cause of action asserted by appellee is based on fraud. It is our opinion that venue of this suit was properly laid in Travis County under both subdivisions 7 and 23, supra.

The plea of privilege filed by appellant to be sued in Nueces County was overruled.

In November, 1959, appellee made a contract with Thankmar Welker, Jr. by which appellee agreed to print and bind a “1961 Oil and Gas Industries Directory”. The appellant Bank was advancing funds to Mr. Welker to enable him to compile data for the directory. The Bank “approved” appellee’s contract and “assured” it that the cost of printing the directory would be paid. Appellee commenced printing the directory and by September 6, 1960, had expended about $6,800.00 in so doing. During this period of work on the directory appellee was “given the impression” by Mr. W. S. Byrnes, Vice President of appellant Bank, that there were sufficient orders for the directory in possession of the Bank to pay the debt of Mr. Welker to the Bank as well as for the cost of printing the directory. On July 11, 1960, as testified by Mr. Frank Evans, Secretary for appellee, Mr. Byrnes told Mr. Evans that the Bank had sufficient collateral to pay the account of appellee.

On August 19, 1960, Mr. Werner Jessen, appellee’s President, wrote the Bank as follows :

“It is our understanding with Mr. Welker that your bank is holding the signed bonafmd orders for an Oil Directory which Mr. Welker is having us print. Mr. Welker assured us yesterday that he had sufficient signed orders in your possession to take care of all expenses pertaining to our part of printing this directory. He also told us he would talk to you on Monday, the 22nd, regarding our visit and have you give us a letter acknowledging this arrangement and assuring us that our total cost of producing this directory will come out of Mr. Welker’s account first.
“As our cost of doing this Directory will be approximately $20,000.00 we would like to know the total number of signed bonafied orders you are holding and to whom the payment of these orders is made out.”

No reply was made by the Bank to this letter, at least not before the telephone conversation of September 6, 1960. On this day Mr. Kent Rider, Vice President of ap-pellee corporation, in Austin, Travis County, placed a telephone call for and talked with Mr. W. S. Byrnes, appellant’s Vice President, in Corpus Christi in Nueces County.

The representations made by Mr. Byrnes during this telephone conversation constitute the sole basis for appellee’s suit based on fraud.

Present in appellee’s office on September 6, with Mr. Rider when he made the telephone call to Mr. Byrnes were Mr. Welker, Mr. Evans and Mr. Jessen. Just prior to this call Mr. Rider stated to Mr. Welker, “ * * * We needed to come into my office and discuss whether or not we would continue with this contract, or whether we would terminate it here, because it was much easier to lose what we already had in it than to continue on and complete the contract and be worse off.”

We now quote from the testimony of Mr. Rider regarding this call:

“A When Mr. Byrnes came on the phone and identified himself as W. S. Byrnes — I believe are his initials — I told him my name and my position with the Von Boeckmann-Jones Company, and that at that instant, on September 6, 1960, seated around my desk were Mr. Thankmar Welker, Mr. Frank Evans, and Mr. Werner Jessen, and that the purpose of my call was to determine how much in the way of signed orders for collateral were being held by his bank, the First State Bank of Corpus Christi, Texas, for the Von Boeckmann-Jones Company as an assist to retiring the obligation of Thankmar Welker.
“Q And what did Mr. Byrnes reply?
“A Mr. Byrnes replied that at that time there was something in excess of $36,000 — I believe the figures were $36,-360, in signed, approved, accepted orders from Thankmar Welker in the First State Bank, but of this amount $21,000 approximately were being held by the bank to retire Thankmar Welker’s obligation to the First State Bank of Corpus Christi, Texas.
“Q And what about the balance,— what did Mr. Byrnes say was being done — was specifically being done by his bank, if anything, with the balance of those accounts?
“A That $15,360 were being held for the Von Boeckmann-Jones Company.
“Q Did you say anything to Mr. Byrnes on the occasion of that September 6, 1960, phone call about the present position of the Von Boeckmann-Jones Company with regard to continuing under that contract?
“A Yes. That unless we had an assurance that there were orders being held for us on assignment or as collateral, that as of that date and as of that hour, on September 6, 1960, that we would do no more work toward the completion of the 1961 Oil and Gas Directory.
“Q You made this statement to Mr. Byrnes ?
“A I did, sir.”

Mr. Rider also testified that relying upon the information given him by Mr. Byrnes the printing and binding of the directory was completed.

The testimony of Mr. Rider did not go undisputed. Appellant contends that its Mr. Byrnes was talking about two kinds of orders in his conversation with Mr. Rider (1) a signed bona fide order assigned to the Bank as collateral for its debt and (2) an unsigned, unassigned list of orders which were “earmarked” as security for appellee. We quote from the testimony of Mr. Byrnes:

“A My recollection of the call, Mr. Rider stated that Mr. Welker was in his office, and he had called to determine whether or not Mr. Welker had brought a list of some $15,000 — verified the fact that Welker had brought a list to the bank that they had requested Welker to do.
“Q What type of list?
“A A list of $15,000 of accounts.
“Q Well, what did you say?
“A I told him that — oh, I think Mr. Rider at the time also wanted to know what his indebtedness was to the bank and what collateral was there in the bank. And I told him we had this list that Mr. Welker brought in and that we also had some $21,000 in collateral on our note, which consisted of some $18,000 in signed orders that were assigned to us on assignment, and I think I told him that we had an insurance— assignment of insurance policies, about thirty-five or thirty-eight hundred dollars.
* * * * * *
“Q What did you tell him about the list that he referred to, if anything?
“A I don’t recall telling him anything particularly about the list, except the fact that Mr. Welker had brought that list to the bank and left it there.
“Q Now, what exactly did that list consist of, Mr. Byrnes?
“A The list in itself was many pages, and my recollection of the accounts, they were small accounts, and it was just the names and amounts. There were no invoices and no orders with the list. It was not a verified list.
“Q Did you tell Mr. Rider it was a verified list or an unverified list?
“A I believe I told him it was an unverified list.”

Appellant also contends that the following testimony of Mr. Rider is substantially the same as that of Mr. Byrnes:

“A * * * Mr. Byrnes told me that he had in the First State Bank of Corpus Christi accounts totalling $36,-360.
“Q Did he say he had assignments of those accounts? He just said he had orders, didn’t he?
“A I can’t answer the question, whether he said orders or assignments, Mr. Harris.
“Q Yes, sir. As a matter of fact, he did tell you that certain of those accounts were actually assigned to the bank, didn’t he?
“A No. He told me that $21,000 of those accounts were being held by the Bank for the retirement of Welker’s obligation to the bank.
“Q Yes, sir. All right, sir. Now, did he tell you what Welker owed the bank?
“A Approximately $21,000 as of September 6, 1960.”

Appellant also emphasizes testimony to the effect that appellee did not request the Bank to prepare an assignment of the directory accounts to it.

Similarly, appellant points to testimony tending to show that even after September 6 appellee continued to look to Mr. Welker to secure it in the payment of the directory costs. We do not detail this testimony, but we do set out the content of a letter sent to Mr. Jessen and written by Mr. Byrnes dated September 28, 1960, as follows:

“In connection with various telephone calls and your letter of August 19, 1960, we wrote Mr. Thankmar Welker on September 3, 1960, concerning your letters and the conversations with Mr. Evans. In our letter to Mr. Welker on September 3, 1960, it was our understanding that the contract was for $18,250.00 and that your company was to furnish him an advertising copy so that he might proceed with his billings.
“In our letter of September 3, 1960, which contained suggestions not pertaining to this contract we stated the following:
“ ‘We, of course, cannot assure your publisher that the total cost of printing this directory will come out of your account first. We naturally hold assignments on the accounts for a sufficient amount to liquidate the indebtedness to us. It is apparent from the information we have in our files, based on the assignments, and the list we were furnished, that you have approximately a total of $34,000.00 in order.’
“At this time we have assignments on some $18,000.00 in orders and our files reflect a list of approximately $15,000.00 in orders which are not being held by the bank under assignment in our collateral files which we understand from Mr. Welker are ear marked for your purposes.
“As of this date Mr. Welker advises us that he has orders for advertising and directories amounting to $36,-000.00.”

Appellant vigorously argues that this letter clearly distinguishes between the Bank’s assignments of $18,000.00 and a list of orders of approximately $15,000.00 being held in the Bank’s file and understood by the Bank to be “earmarked” for appellee. In pursuing this point, appellant quotes the following testimony of Mr. Jessen:

“Q (By Mr. Harris, resuming) You have in your hand Defendants’ Exhibit No. 3. Now, will you read the last paragraph of that? Now, that is a letter addressed to you, isn’t it?
“A Yes, sir. ‘At this time we have assignments on some $18,000.00 in orders and our files reflect a list of approximately $15,000.00 in orders which are not being held by the bank under assignment in our collateral files which we understand from Mr. Welker are ear marked for your purposes.’
“Q Well, now, did you notice any distinction or two categories there that Mr. Byrnes was making, that there were $18,000 of assignments of accounts to secure the payment of the obligation of the bank, and in addition a list of accounts which Mr. Welker says are being earmarked for your purposes,— did you notice any distinction in the two categories there, sir?
“A No, sir, not knowing exactly what assignments or orders are—what the difference in assignments or orders are, I couldn’t answer that one.
“Q But it does set out there that there are two different things there, aren’t there?
“A Yes, sir.”

The record shows that the directory was printed, bound, and delivered by appellee to Mr. Welker and that from the assigned directory orders held by the appellant Bank it obtained sufficient funds to pay in full the indebtedness of Mr. Welker to the Bank, but that of the $25,884.90 cost of printing the directory, appellee has been paid only $2,200.00.

The appellant Bank did not have any collateral pledged to the payment of appellee’s account. We quote the testimony of its Mr. Byrnes:

“Q It is a fair statement to say of your testimony, Mr. Byrnes, that the First State Bank of Corpus never at any time from October 1959, until March of 1961 held in its possession or in its collateral files signed, bona fide orders which would be used to pay off Welker’s account to the Von Boeck-mann-Jones Company?
“A That is correct.”

The nature of the representation made by the Bank through Mr. Byrnes in the telephone conversation of September 6, 1960, is a subject of legitimate dispute. Did Mr. Byrnes represent that the Bank was holding merely a list of directory orders, or did he represent that the Bank was holding as collateral for the payment of the directory costs bona fide signed orders of the same quality which it held for its own protection ?

In support of the judgment of the Trial Court we assume that the Trial Court resolved this fact issue in favor of appellee. This implied finding is fully supported by the evidence.

It is our opinion that the three essential elements of actionable fraud are present and proved in this case. These elements are: (1) a false representation of a material fact (2) .reliance thereon by a person entitled to rely thereon (3) resultant injury. See 25 Tex.Jur.2d p. 626.

The second element of the cause of action for fraud, or reliance, occurred wholly in Travis County. The directory was completed in Travis County at a cost of some $19,000.00 following the telephone conversation of September 6, 1960. This was done in reliance upon the representation that the Bank was holding the described collateral for the account of appellee.

Sec. 23, supra, is applicable to sustain venue in Travis County provides only that a “part” of the cause of action “arose” in the county of suit. In Savage v. H. C. Burks & Co., 270 S.W. 244, Dallas Civil Appeals, it was held that “A cause of action, as that term is used in the venue statute, consists both of the right of plaintiff and the injury to such right. It embraces the entire state of facts that give rise to an enforceable claim, and necessarily comprises every fact which a plaintiff must prove in order to obtain judgment.”

Appellee was required to prove its reliance on the misrepresentation of appellant in order to prove a cause of action for fraud. This “.reliance” occurred in Travis County and, therefore, in our opinion, a part of appellee’s cause of action arose in Travis County.

We, also, are of the opinion that the misrepresentation emanating from the September 6, 1960 telephone conversation was made in Travis County and that fraud, under subd. 7, supra, was committed in such county. It is true that Mr. Byrnes was speaking from Corpus Christi, but his voice was heard in Austin. Direct authority for this conclusion is Hayter v. Hudgens, 236 S.W. 232, Texarkana Civil Appeals. The Court there held that a defendant speaking over the telephone from Nacogdoches to the plaintiff in Rusk County committed fraud in Rusk County under the fraud exception of the venue statute saying, “We do not see that the fact that the offer was made by Hayter (defendant) over the telephone made it any less an offer to appellee in Rusk County than it would have been if Hayter had gone in, person to Rusk County and there made it to appellee. The offer was not made to appellee until it reached him, and when it reached him he was in Rusk County.” Mr. Byrnes made no misrepresentation to Mr. Rider until Mr. Rider heard it, and when he heard it he was in Travis County.

It is wholly immaterial, in our judgment, that the telephone call was placed by Mr. Rider, and the reverse situation was presented in Hayter v. Hudgens. If Mr. Byrnes did not desire to communicate with appellee via the telephone, he should have refrained from its use. He did not originate, but he acquiesced in the use of the telephone for the purpose of mutual communication. The scientific marvel of the telephone is unaffected by which party initiates its use.

The order appealed from is affirmed.

Affirmed.

      . The amount owing on the contract at the time of this hearing was $22,721.65. The total cost was $25,884.90.


author: WILLIAMS, Justice.

text:
    CITY OF DALLAS et al., Appellants, v. Archie FIFLEY et al., Appellees.
    No. 16099.
    Court of Civil Appeals of Texas. Dallas.
    June 1, 1962.
    Rehearing Denied June 29, 1962.

      H. P. Kucera, City Atty., and N. Alex Bickley, Ted P. MacMaster and Arthur Schroeder, Jr., Asst. City Attys., Dallas, for appellants.
    McKool & McKool and Neil Williams, Dallas, for appellees.
   WILLIAMS, Justice.

One of appellees, The Southland Corporation, brought this suit in the nature of a writ of certiorari under the provisions of Art. 101 lg, Vernon’s Ann.Civ.St. against the City of Dallas, the Chief Building Inspector of the City of Dallas, and the Board of Adjustment of the City of Dallas, challenging the legality of the decision of the Board of Adjustment of the City of Dallas on December 12, 1961, sustaining prior decision of the Building Inspector denying a certificate of occupancy of certain property in the City of Dallas known as 11814 HILLCREST AVENUE. It was the contention of The Southland Corporation that the property in question had previously been used as a drive-in grocery and that it had the right to continue such use as a nonconforming use under the Zoning Ordinance of the City of Dallas. Following introduction of evidence, including all testimony, both oral and documentary, previously introduced before the Board of Adjustment, the trial court, in a non-jury trial, concluded that The Southland Corporation as lessee, and Archie Fifley, as the owner of the property, and lessor, had a nonconforming use of the premises in question and that the Board of Adjustment, the Building Inspector, and the City of Dallas, had acted arbitrarily, capriciously and unreasonably in denying a certificate of occupancy of the property. The judgment reversed the decision of the Board of Adjustment and ordered a mandatory injunction issue directing the issuance of a certificate of occupancy. From this judgment appellants appeal contending, in their first and second points of error, that the trial court erred in substituting its judgment for that of the Board of Adjustment since the record reveals that the decision of the Board of Adjustment was supported by substantial evidence, and that the trial court erred in holding that the plaintiffs had a nonconforming use for a drive-in grocery on the property in question.

The history of the subject matter of this suit, as revealed by the evidence, reaches back to 1951. The tract of land in question was unimproved and located in an undeveloped area outside the City Limits of the City of Dallas when purchased in 1951 by Archie Fifley, one of appellees herein. In 1951 Fifley entered into a lease agreement with The Southland Corporation to lease said company the north 105 feet of this tract. The lease provided that a building was to be built by the owner but that it was to be paid for by lessee. The building was constructed by Mr. Fifley and The Southland Corporation occupied it and began the operation of a drive-in grocery in the early part of 1952. This drive-in grocery was operated by The Southland Corporation until the early part of 1953 when it was discontinued because the neighborhood growth did not justify the operation of the same. According to Mr. Dodds, agent of The Southland Corporation, the store was operated a little over a year. He said: “We had anticipated a faster neighborhood growth there tlian actually prevailed and I think operation ceased in the spring of the following year, which would be 1953.” After the store was discontinued in 1953 it was never reopened as a grocery store, said nonuse extending over a period of approximately eight and one-half years. During this period of time The Southland Corporation did continue to pay the rental under the lease agreement. Said lease agreement contained no option to renew, and therefore, by its terms would have expired January 31, 1962. At the time The Southland Corporation ceased the operation of the drive-in grocery in 1953 it removed from the premises the mechanical equipment and furnishings, including the compressors for refrigeration and all signs advertising the property as a drive-in grocery. Certain built-in equipment, including shelving, was left in the building.

On April 26, 1954, approximately one year after The Southland Corporation had ceased operation, the City of Dallas annexed this property and immediately upon such annexation the property took a temporary classification for single family dwelling houses pending permanent zoning by the governing body of the City of Dallas. Thereafter on November 25, 1955 a permanent Zoning Ordinance was enacted by the City imposing a zone for R-One acre single family dwelling purposes, which is a residential classification. Following the annexation the building in question remained vacant and deteriorated, there being testimony that such state of deterioration was such that the glass window panes were broken, the paint was chipped and peeling, and the building was generally in a state of disrepair and nonuse.

In November 1957 The Southland Corporation permitted the Town North Y. M.C.A. to use the building free of charge as headquarters for the Y.M.C.A. activities in that section of the City. The Y.M.C.A. continued to use the property until the time of trial.

In August 1961 The Southland Corporation made application to the Building Inspector for a permit to reopen a drive-in grocery, said application being denied by the Building Inspector. Thereafter, in November 1961 appeal was taken by The South-land Corporation to the Board of Adjustment of the City of Dallas seeking permit to reopen the property as a drive-in grocery. At the completion of the hearing before the Board including the introduction of testimony by all parties who desired to be heard, the Board on December 12, 1961 voted unanimously to deny the permit.

OPINION

Art. 101 lg, V.A.C.S. authorizes a Board of Adjustment, prescribes its membership and procedure, and authorizes an appeal from its decisions. As to its power, the statute provides:

“The board of adjustment shall have the following powers:
“1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this Act or of any ordinance adopted pursuant thereto.”

The comprehensive Zoning Ordinance of the City of Dallas adopted pursuant to the authority of the Zoning Act, Art. 101 la-101 lie, V.A.C.S. provides, among other things: (1) A nonconforming use is any that does not conform to the Zoning Ordinance but which was in existence prior to effective date of the Ordinance; (2) Any nonconforming use of land may be continued for definite period of time and subject to regulations as the Board of Adjustment may require for preservation of the adjoining property and the ultimate removal of the nonconforming use, it being the declared purpose of the Ordinance that nonconforming uses be eliminated and required to conform having due regard for the property rights of the persons affected; and (3) it being the declared purpose of the Ordinance that nonconforming uses be eliminated, the Board of Adjustment shall, from time to time on its motion or upon cause presented by interested property owners, inquire into the existence, continuance or maintenance of any nonconforming use. Art. 165-24, Ordinances City of Dallas.

In considering appellants’ points of error directed against the action of the trial court in reversing the decision of the Board of Adjustment and in holding that such action of the Board was arbitrary, capricious and unreasonable, we are governed by certain established legal principles:

I. Board of Adjustments when functioning within their jurisdiction pursuant to Statutes comparable to Art. 1011a-1011 j, V.A.C.S. act as quasi-judicial bodies. Washington v. City of Dallas, Tex.Civ.App., 159 S.W.2d 579, and there is a presumption of legality with respect to permits, special uses, nonconforming uses and such. A party seeking relief from a decision of the Board of Adjustment relative to nonconforming uses has the burden of proof to •establish illegality. Montgomery v. City of Dallas, Tex.Civ.App., 245 S.W.2d 753; Mc-Quillin on “Municipal Corporations” 3rd Ed.Vol. 8, §§ 25.327-25.328.

II. The Court in considering the legality on the part of the Board of Adjustment must not put itself in the position of the Board and substitute its findings for that of the Board even though the court concludes that the overwhelming preponderance of the evidence is against the Board’s decision. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67.

III. The question is whether or not there is any substantial evidence affording reasonable support for such findings and orders entered thereunder. This is a •question of law. Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420; City of Dallas v. Stevens, Tex.Civ.App., 310 S.W.2d 750. If the evidence before the court as a whole is stick that reasonable minds could have reached the conclusion .that the Board must have reached in order .to justify its action, then the order must be sustained. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 441. (Emphasis ours)

IV. Article 101 lg contemplates that the trial court shall consider the Board’s verified return into court along with the evidence introduced. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67. The court may refuse to hear any further evidence if the record of the Board’s proceedings returned into court supports the findings of the Board as to the existence of a nonconforming use. Rowton v. Alagood, Tex.Civ.App., 250 S.W.2d 264.

These principles of law were reiterated by Justice Thomas of this Court in the case of Huguley v. Board of Adjustment of the City of Dallas, Tex.Civ.App., 341 S.W.2d 212. In that case, Justice Thomas quoting Justice Werlein, in the case of Biddle v. Board of Adjustment, Village of Spring Valley, Tex.Civ.App., 316 S.W.2d 437, 442 said:

“Mere preparation for use of the property before adoption of a zoning ordinance is not enough to show a devotion of the property to that use. An ‘existing use’ should mean the utilization of the premises so that they may be known in the neighborhood as being employed for a given purpose. See Caruthers v. Board of Adjustment of City of Bunker Hill Village, Tex.Civ.App., 290 S.W.2d 340; Appeal of Haller Baking Co., 295 Pa. 257, 145 A. 77; Fairlawns Cemetery Ass’n Inc., v. Zoning Commission of Town of Bethel, 138 Conn. 434, 86 A.2d 74.”

See also Meserole v. Board of Adjustment, City of Dallas, Tex.Civ.App., 172 S.W.2d 528.

The general rule is for a property owner to have the benefit of a nonconforming provision of a Zoning Ordinance, the use sought to be continued must be the use in existence on the effective date of the municipal ordinance. Moreover, it is the definitely settled proposition of law that the “continuance of a nonconforming use” existing at the time of the adoption of the Zoning Ordinance is a continuance of the same and not some other kind of use. Yokky, Zoning Law and Practice, §§ 134 and 135, pp. 259 to 261.

Bearing in mind the foregoing legal principles, we have reviewed the entire record consisting of the testimony, both oral and documentary, before the Board of Adjustment and also the same testimony, together with additional testimony introduced in the trial court, and while recognizing, as we did in Huguley v. Board of Adjustment, City of Dallas, supra, that there is strong evidence to support appellees! contention of a nonconforming use, nevertheless, we are of the opinion that the Board of Adjustment’s findings and decision are sustained by substantial evidence and must be affirmed.

Appellees strongly urge the proposition that the evidence before the Board and the court reflect that there has been no abandonment of the nonconforming use of the property, as a matter of law. Appellees are correct in announcing the well-established rule of law which is to the effect that to constitute an abandonment of a nonconforming use there must be intention to abandon coupled with some overt act or some failure to act. Landay v. MacWilliams, 173 Md. 460, 196 A. 293, 114 A.L.R. 984; 114 A.L.R. 991; 18 A.L.R.2d 725. These principles of law were considered by this court in Town of Highland Park v. Marshall, Tex.Civ.App., 235 S.W.2d 648 and Rosenthal v. City of Dallas et al., Tex.Civ.App., 211 S.W.2d 279. However, in both of those cases no appeal from the Board was involved. In both the Marshall and Rosenthal cases the court was called upon to consider and weigh testimony in injunction cases and we were not called upon to apply the principles of law enumerated above concerning appeals from Boards of Adjustment to the District Court.

There was ample evidence introduced both before the Board and the Court in this case to demonst.ate many years of nonuse of the property in question as a drive-in grocery. There was abundance of evidence concerning removal of fixtures andl permitting the property to deteriorate. True, there was testimony of appellees’' intent at some indefinite time in the future-to resume an operation of this property as-a drive-in grocery. However, all of this, testimony does nothing more than create an issue of fact which is supported by substantial evidence, both pro and con, on the issue of nonconforming use and its abandonment.

The fact that The Southland Corporation continued to pay its rental under the lease contract to Fifley is not conclusive on the issue of intent to resume the nonconforming use as a drive-in grocery. This act on the part of Southland was nothing-more than a performance of a legal duty under its written agreement, regardless of the use of the property.

We cannot say in the state of this, record, reviewed as a whole, that reasonable-minds could not have reached the same decision as reached by the Board. The trial court obviously substituted its opinion for that of the Board in this case. We find' no evidence to demonstrate arbitrary, capricious and unreasonable action on the part of the Board in rendering its decision. On* the contrary, we find substantial evidence to support the decision of the Board and! therefore must hold that the trial court was. in error in reversing the decision of the-Board.

There is still another reason why-the decision of the Board may be affirmed.. Since the action of the Board is that of a quasi-judicial body its judgments and! decrees are afforded presumption of legality and should be upheld upon any possible-theory of law, regardless of the reasons, assigned by the Board in rendering its decision. As reflected in the City Ordinances-discussed above, it is a declared policy of the City of Dallas that nonconforming uses, be eliminated, having due regard for the property rights of the persons affected, when considered in the light of the public welfare and the character of the area surrounding the designated nonconforming use and the conservation and preservation of the property. Moreover, Sec. 3, Art. 165-24 of the City Ordinance provides:

“4. Require the discontinuance of nonconforming uses under any plan whereby the full value of the structure can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity for all property to conform to the regulations of this Ordinance.”

The testimony in this case reveals, without controversy, that appellee Fifley had completely recouped his investment in the property and has realized a profit from such investment over the period of years constituting the life of the lease agreement. The cost of the building and structure was $12,900. During the term of the lease the landowner received a total of $15,480 to be applied against the building cost. In addition, the owner received $12,-000 to be applied as a return on his land. Thus, Fifley has received in excess of $27,-000 from the property as a result of the lease agreement with Southland. In the light of these uncontroverted facts the Board would have been justified in requiring a discontinuance of any nonconforming use at the end of the leasehold period of January 1962. The testimony, especially the photographs introduced in evidence, demonstrates the increased growth of the area in question as a residential area of high quality and character. When the rights of the property owners are weighed in contrast with the public welfare and character of the area surrounding the property in question we are of the opinion that tire Board would have been fully justified, in the light of the policy of the City of Dallas announced by the Ordinances, in ordering a discontinuance of the nonconforming use. Standard Oil Co. v. City of Tallahassee, 5 Cir., 183 F.2d 410, cert. denied, 340 U.S. 892, 71 S.Ct. 208, 95 L.Ed. 647; City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34; Spurgeon v. Board of Commissioners of Shawnee County, 181 Kan. 1008, 317 P.2d 798; City of Seattle v. Martin, 54 Wash.2d 541, 342 P.2d 602; Charles S. Rhyne, “Municipal Law” 1957, §§ 32-33, p. 922. Though not controlling in that case, the principle is discussed in City of Dallas v. Halbert, Tex.Civ.App., 246 S.W.2d 686.

Appellants’ points of error are sustained, and the judgment of the trial court is reversed and rendered, affirming the judgment and decision of the Board of Adjustment of the City of Dallas.

Reversed and rendered.

ON MOTION FOR REHEARING

In his motion for rehearing Appellee, Archie Fifley, contends that since he was never a party before the Board of Adjustment and was not afforded a hearing until the trial in the District Court, that the effect of our opinion is to deprive him of his property without due process of law in violation of the Texas and Federal Constitutions. There is no merit to this contention. The record reveals that prior to the hearing before the Board of Adjustment notice of such hearing was sent to the interested property owners, including ap-pellee Archie Fifley. Fifley, while testifying in the District Court, admitted he received the notice of the hearing before the Board of Adjustment; that upon receipt of such notice he contacted Mr. Wheeler at 7-Eleven Stores, (operated by Southland Corporation) and asked him if it was necessary that he go down to the hearing; that Wheeler told him: “No, it will not be necessary for you to go”; and that such was the reason he did not appear at the hearing. It is apparent that Fifley’s failure to appear before the Board of Adjustment and participate in the hearing was of his own volition and choice and he now cannot be heard to complain that he was not afforded an opportunity to be heard. He has waived any right to make such complaint by his own actions and admissions. Moreover, Fifley’s lessee, The Southland Corporation, made the application for the certificate of occupancy and also made the appeal to the Board of Adjustment upon such application being denied by the Building Inspector of the City of Dallas. Thus Fifley’s failure to be made a party to such application was a matter of choice between him and his lessee and under the terms of the lease itself Fifley’s rights are no greater than that of his lessee, The Southland Corporation.

The terms of the Zoning Ordinance of the City of Dallas, Art. 165-1 of Ordinance 5238 specifically provides that the act on the part of the City in regulating zoning is aimed at the use, rather than ownership, of the property. See also Village of Skokie v. Almendinger, 5 Ill.App.2d 522, 126 N.E.2d 421 and O’Connor v. City of Moscow, 69 Idaho 37, 202 P.2d 401, 9 A.L.R.2d 1031.

We find no merit in appellee’s motion for rehearing and the same is overruled.

YOUNG, J., not sitting.


author: TIREY, Justice.

text:
    Mary Edith CARTER, Appellant, v. George CARTER, Appellee.
    No. 4021.
    Court of Civil Appeals of Texas. Waco.
    June 14, 1962.
    Rehearing Denied July 19, 1962.
    R. A. Kilpatrick, John A. James, Jr., Cleburne, for appellant.
    Gean B. Turner, James E. Ferguson, Cleburne, for appellee.
   TIREY, Justice.

This action is for divorce and for the custody of a 20 months old son. The jury, in its verdict, found that George Carter had been guilty of such cruel treatment and excesses toward his wife as to render their further living together as husband and wife insupportable to her; it also found that Mrs. Carter had been guilty of such cruel treatment and excesses toward her husband as to render their further living together as husband and wife insupportable to him; it further found that it would be to the best interest of the child for its custody to be awarded to George Carter, the father, subject to such visitation rights as the Court may order. The Court overruled Mrs. Carter’s motion for judgment non obstante veredicto and granted the husband’s motion for judgment, and decreed that the husband have judgment on his cross action for divorce from the plaintiff. It further awarded the care and custody of the child to its father with the rights of visitation to the mother, which are specifically set out in the decree. The Court further decreed that the mother, Mary Edith Carter, take nothing by reason of her suit against George Carter. Motion for new trial was seasonably filed, and it being overruled, plaintiff perfected her appeal to this Court.

The Court permitted the mother to supersede the judgment awarding custody to the father, by the execution of a bond in the sum of $500.00.

Appellant’s 6th Point is to the effect that the Court erred in accepting the verdict of the jury as to the custody of the child as final and controlling under Art. 4639a, Sec. 1 as amended by House Bill 436, 1961, because such Article as amended by such House Bill is unconstitutional because same is in violation of Art. 5, Sec. 8 of the Constitution of the State of Texas, Vernon’s Ann.St. Art. 5, Section 1 of our Constitution provides in part:

“Section 1. The judicial power of this State shall be vested in one Supreme Court, in Courts of Civil Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.”

Section 8, pertinent to this discussion, provides in part:

“The District Court shall have appellate jurisdiction and general control in probate matters, over the County Court established in each county, for appointing guardians, granting letters testamentary and of administration, probating wills, for settling the accounts of executors, administrators and guardians, and for the transaction of all business appertaining to estates; and original jurisdiction and general control over executors, administrators, guardians and minors under such regulations as may be prescribed by law.” (Emphasis ours.)

Article 4639 of our Revised Statutes of 1911, Vernon’s Ann.Civ.St. art. 4639, provides :

“A divorce shall not in anywise affect the legitimacy of the children of the parents so divorced. The court shall have power, in all divorce suits, to give the custody and education of the children to either father or mother, as the court shall deem right and proper, having regard to the prudence and ability of the parents, and the age and sex of the children, to be determined and decided on the petition of either party; and in the meantime to issue any injunction or make any order that the safety and well-being of any such children may require.”

Under the foregoing provisions of our Constitution and Art. 4639, our courts have held in effect that the District Court had exclusive jurisdiction and control to award the care, custody and control to such parent as the custody found to be to the best interest of the child. In so doing the court could, in the exercise of its discretion, award the care, custody and control to a third party if it was of the view that the best interest of the child so required. The decisions of our appellate courts in the interpretation given to this provision of our Constitution and the foregoing statute, have been uniformly construed as aforesaid.

The 57th Legislature, as shown by its amended Acts, Chapter 305, Sec. 1, page 663, which became effective June 14, 1961, provides in part as follows:

“ * * * Upon the trial of any such cause, and in the event a divorce is granted by the court, if there are such minor children, it shall be the duty of such trial court to inquire into the surroundings and circumstances of each such child or children, and such court shall have full power and authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and such court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same; provided, however, that the judgment of the court in a jury trial of a divorce cause may not contravene the jury’s determination of child custody. In any hearing held in this State concerning the custody of a child, whether pursuant to a divorce cause or not, any party to the hearing may, upon asstimption of jury costs, demand a jury to determine custody of the child, and the judgment of the court must conform to that determination.”

It is obvious that this provision of the statute makes it mandatory upon the court to abide by the verdict of the jury as to the award of custody. In the event the court was of the view that the jury’s verdict was against the best interest of the child, its only remedy would be to enter the judgment and then grant a motion for new trial and set the judgment aside. It is obvious that the granting of a new trial would be of no avail to the Court, because the Court would not have the authority to exercise its equitable and broad discretionary powers with reference to the custody of the child. This is true because the cause has been placed on the jury docket, and it would be the duty of the Court under the amendment to impanel another jury and to submit again the evidence to this jury to determine the proper custody and control of the child. “Frequent custody hearings are discouraged and not encouraged.” See Short v. Short, 354 S.W.2d 933, Sup.Ct. During this period of time the custody of the child must remain under the temporary orders of the Court, and the Court is powerless to do for the child what the Court believes to be for its best welfare. The effect of the amendment is to exhaust the Constitutional jurisdiction of the Court to award the custody of the child.

Going back to the consideration of Art. 5 and Section 8, we think the opinion of the Commission of Appeals in Thomason v. McGeorge, Tex.Com.App., 285 S.W. 285, sheds some light on the question here before us. In that case the Court had before it the provisions of Sec. 8, Art. 5 of the Constitution of our State and also Sec. 16 of the same article. The Court in discussing Sections 8 and 16 aforesaid, said:

“In these provisions there is no conflict. Their effect, in so far as the same is material to this case, is to clothe the district court with the old common-law chancery jurisdiction of general control over guardians and minors, and to vest in the county court jurisdiction to appoint guardians of minors and transact all business appertaining to such minors. The jurisdiction in each instance is of course exclusive. In the very nature of such jurisdictions the control thus given to the district court is superior in a sense to that given to the county court. It is superior in the sense that, where the equities and necessities of the case require it, the district court may interfere, if it be an interference, by wresting the custody of a minor from the guardian, and awarding it elsewhere. Indeed, the rights of the parent as natural guardian as well are subordinate to the powers of the district court in this respect. The rights of the state — society—are paramount, and, where the public welfare demands it, the lesser rights of parent, guardian, or whomsoever, must yield. Indeed, what is essentially the same thing, the rights of the minor are themselves superior to the rights of parent, guardian, or other custodian, and will in any case prevail upon considerations of highest public policy.” (Emphasis ours.)

It is true that the Constitution does not say that the power granted to the District Court in Section 8 is exclusive in the District Court, but that is the holding of the foregoing case, and that construction and interpretation has been uniformly given to the foregoing provisions of our Constitution until the Legislature passed the amendment aforesaid. That leads us to say that the clause in Sec. 8 which says: “under such regulations as may be prescribed by law” does not authorize the Legislature to take away the general control of minors from the district court. We think the only construction that could be given to the clause is to give the Legislature power to enact such laws relating to procedural matters so that the court would have all necessary process, as will enable the court to effectively exercise its general control and jurisdiction. Any other construction of this clause would be too broad, and would authorize the Legislature to enact the amendment under consideration, the effect of which is to be in open and irreconcilable conflict with the general control of minors provided for by the section under consideration.

In Webster’s Unabridged Dictionary we find the following definition of the word “general”: “1. The whole; the total; that which comprehends all of the chief parts; opposed to particular.” The word “control” is defined: “1. The act of controlling; the power to control, regulate, or guide.” In this connection we think the statement of Chief Justice Gaines in Ex parte Reeves, 100 Tex. 617, 103 S.W. 478, p. 480, is pertinent here. There we find this statement: “It would seem that in framing the provisions of sections 8 and 16 of article 5 of the Constitution the able lawyers who drew it had in view the jurisdiction exercised by courts of equity over minors, and intended to confer so much as relates to guardianship to the county courts and that which was exercised over their custody merely to the district courts.” See also Ex parte Willig, Tex.Civ.App., 314 S.W.2d 395, n. r. e.; Whittenberg v. Craven, 258 S.W. 152 (Comm.App.). (As to definition of a court, see Ruling Case Law, Vol. 7 “Courts” paragraph 2, page 973. See also Vol. 15 “Judges,” paragraph 2, page 512.)

Our Supreme Court in Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187, had occasion to consider Art. 5 and Sec. 8 of our Texas Constitution, and in that opinion we find this statement:

“The powers of the district courts to award custody have been held to be independent of and superior to the powers of county courts, under Article 5, Section 16 of the Constitution, and the guardianship statutes (Articles 4102, 4118 and related articles in Title 69-, Vernon’s Tex.Civ.St.) to appoint and supervise guardians of the persons of minors.” Citing Thomason v. Mc-George aforesaid and many other cases.

In Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79, the Supreme Court, in dealing with a child custody case, made the following statement:

“One cannot invoke the jurisdiction of the court to deal with the personal status or the person of a child and at the same time deny the power of the court, in that proceeding, to do with the child’s person or his status whatever appears to the court to be for the best interest of the child. The petitioner having brought the child before the court could not by the nature of his pleading limit the constitutional jurisdiction of the court to deal in fullest measure with the child’s person or status.”

Yet the Legislature by the amendment, places the well-being and future status of the child solely in the hands of the jury, and makes the district court impotent to do what it believes to be for the best welfare of the child. We think the effect of the Supreme Court’s decisions we have cited is to hold that the district court has the right and the duty to take into consideration all the facts and surrounding circumstances and the general situation relating to the child in order to form an intelligent judgment on what will be best for the child’s welfare. Needless to say that the amendment strikes down the judicial interpretation heretofore given to Sections 8 and 16 as found in Art. 5 of our State Constitution. It follows that we are of the view that the amendment here under consideration is contrary to and violates the provisions of the Texas Constitution heretofore pointed out, giving general control of minors to the district court and interferes and prevents the district court from the exercise of its equity jurisdiction provided for it by our Constitution in the custody of children. We think this view is in keeping with the recent pronouncement of our Supreme Court in Lord v. Clayton, 352 S.W.2d 718, point page 721, where the Court said that

“ * * * while the Legislature could create special courts under authority of an 1891 amendment to Section 1, Article 5 of the Constitution, * * * and could confer on such courts concurrent jurisdiction over subjects mentioned in section 8 of Article 5 of the Constitution, it could not deprive regular district courts of the jurisdiction conferred on them by the Constitution.”

Needless to say that the award of the care and custody of a child places upon the district court the greatest burden and greatest responsibility that it has to bear in the discharge of its duties. This is so because it involves the well being, the future life, and the destiny of a human being, God’s greatest creation. In the trial of civil cases, there is no other situation comparable to the restriction placed upon the powers and equities of a district court.

It is true in civil cases that under Art. 2211, V.A.T.S. of 1911, Vernon’s Ann.Civ. St. art. 2211, where a jury made a finding on special issues that the findings of the jury upon the issues made by the pleadings in the case although against the undisputed evidence or without evidence to support them, could not be disregarded, but the answers of the jury had to constitute the necessary basis upon which any proper judgment could be rendered. Art. 2211 aforesaid was amended by our Legislature on August 22, 1931. The purpose of the 1931 amendment was intended to and did obviate the apparent harshness of the foregoing rule and permitted the court to disregard a special issue finding which had no support in the evidence. The amendment gave the court the right, on proper motion, to disregard the findings of the jury where it was of the view that there was no evidence to support it, or thought the answer to such issue was against the great weight and preponderance of the evidence. See Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, opinion adopted by the Supreme Court.

The foregoing change in our procedure enabled the district court to exercise its judicial and equity powers, and the foregoing provision has been carried forward into the new rules as provided for in Rule 301, Texas Rules of Civil Procedure. Needless to say, what is for the best interest of a minor child is subject to change almost overnight, or certainly in the course of a few months, and we think the responsibility and duty to minors placed upon the district court by our Constitution should not be limited or restricted by the Legislature, because the district court, must be free to take into consideration all the surrounding facts and circumstances and equities that pertain to the best interest of a child, including not only his present but his future existence, and surely the district court is in a better position than the jury to arrive at a legal consideration of what is best for the child.

This court, in Oldfield v. Campbell, 191 S.W.2d 897, speaking through the late Justice Hale, said:

“It is also well established that when a suit involving the custody of a minor is tried with the aid of a jury the findings of the jury with respect to the child’s welfare and interest are advisory only and are not binding on the courts. In a case of such magnitude and possible consequences, the law places the solemn responsibility upon a trained judiciary not only to exercise general control over the minor but to weigh the evidence and ultimately to determine under all the facts and circumstances what is best for the child.” Citing Constitution of Texas, Art. 5, Sec. 8; Wright v. Wright, 50 Tex.Civ.App. 459, 110 S.W. 158; Northcutt v. Northcutt, Tex.Civ.App., 287 S.W. 515, Er. dis.; Lawler v. Lawler, Tex.Civ.App., 15 S.W.2d 684; Bateman v. Bateman, Tex.Civ.App., 188 S.W.2d 866, er. dis.

The writer is of the view that the framers of our Constitution did not intend that our Legislature would have the power to take the care, custody and control of children away from a trained judiciary. Chief Justice McDonald and Associate Justice Wilson are of the view that the amendment is Constitutional.

Point 2 is to the effect that the court committed reversible error in permitting appellee, over appellant’s objection, to introduce a letter of Douglas Hughes because it was hearsay, and because it was highly prejudicial to appellant. The transcript shows that appellant filed her petition for divorce on September 19, 1960. There is evidence to the effect that in October after the divorce was filed, appellant and her husband had been conferring with each other with reference to an agreement between them as to the custody of their son; that while these negotiations were going on, the husband took his wife by the county jail to see a man there confined by the name of Douglas Hughes; that the husband waited in the car outside of the jail while Mrs. Carter went inside the jail, and in a short time she came out of the jail and walked to the car. She had what purported to be a letter in her hand. Appellee testified she handed the letter to him. She testified he jerked the letter out of her hand. There was no evidence in the record as to who had written the letter, no evidence of handwriting; but the court, over the objection of appellant, permitted the ap-pellee to put the letter in evidence on the theory that her husband said his wife told him that the letter was from Douglas Hughes. The letter tendered in evidence was dated October 22, 1960, and contains many statements which are very prejudicial to the appellant. The letter, by implication, shows that appellant and Douglas Hughes had been keeping company with each other for some time, and that according to their plans, Mrs. Carter would get a divorce and after that they would be married and that they had been discussing the question of giving up the baby. One paragraph in the letter said: “Baby you will have to make up your own mind about the child, but you know that I would rather you gave him up. For like I was telling you when I come out I want you and I to be able to start out all over and you know with you having the baby it will be awfully hard to forget for you and worse for me. But you see I know children are the dearest to anyone. You see I want a family of my own more than anything else in the world. So you can see why you must be the one to decide what you must do. * * * You know you told me something the other day that I don’t want to hear about you doing again ever. That is when you went to the ‘beer joint.’ Mary, I mean this very much, because you are too innocent to be going to any of those places. If you ever want to go I will take you myself. * * * If I didn’t love you very much I would not be telling you all this. Mary, like you were saying, none of your people like me. If it were not for you I wouldn’t care. But since I love you I will try to make them love me; believe they will in time * *

Evidence was tendered to the effect that after appellee took his wife by the jail, he then took her to a filling station operated by Jack Sanders, who was a Notary Public, and there he got his wife to execute and acknowledge an instrument, previously prepared by appellee’s attorney, and without knowledge of appellant’s attorney, the effect of which was to give her husband the custody of the child, and evidence was tendered to the effect that he paid his wife some $150.00 for executing this instrument. We are of the view that the letter being hearsay and inadmissible for any purpose, and the contents and the implications were so far-reaching and so prejudicial to the rights of the appellant that the jury could not with the letter before it, award custody of the child on the basis of what it deemed right and proper, having regard to the prudence and ability of the parents and the age and sex of the child. Moreover, the evidence is without dispute that the mother has had the custody of the child since filing the divorce suit. The testimony is overwhelming to the effect that the child is well and strong; that he is well clothed, well fed and well provided for, and that considering his tender age and surrounding circumstances, the mother, who is some 20 years old, is discharging her full duty to the care, support and control of this child. (All members of the court are of the view that the cause must be reversed and remanded on account of the error in admitting the letter. Two members of the court are of the further view that the award of custody of this 20 months old child to the father is against the great weight and preponderance of the evidence, and is manifestly wrong and unjust. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.)

Our Supreme Court in State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, made this statement of the rule for our guide:

“God, in his wisdom, has placed upon the father and mother the obligation to nurture, educate, protect, and guide their offspring, and has qualified them to discharge those important duties by writing in their hearts sentiments of affection, and establishing between them and their children ties which cannot exist between the children and any other persons. Especially is this the case with the mother.”

We think the cause should be reversed and remanded for the reasons above stated. All other points are overruled. The judgment awarding the divorce of the parties is affirmed and the costs of this appeal, including all costs in the court below, are taxed against the appellee. Reversed and remanded in part; and in part affirmed.


text:
    Betty Lee FLOYD, Appellant, v. Henry Homer ORGAN, Jr., Appellee.
    No. 10985.
    Court of Civil Appeals of Texas. Austin.
    July 11, 1962.
    Rehearing Denied Aug. 2, 1962.

      Byrd, Davis & Eisenberg, Austin, for appellant.
    Gay & Meyers, Austin, for appellee.
   HUGHES, Justice.

Appellant, Betty Lee Floyd, is the two-year old daughter of Mr. and Mrs. Waynt Floyd. On September 30, 1959, she and her mother, and perhaps her father, were sitting in the family car parked on the Travis County dump ground where Mr. Floyd was "burning out some salvage wire and motors.” While Betty Lee and her mother, and possibly the father, were in their car, a City of Austin garbage truck, driven by appellee, Henry Homer Organ, Jr., collided with the Floyd car injuring Betty Lee, her father and mother.

The case was tried to a jury which convicted appellee of negligence, found that the reasonable amount of the necessary medical expenses incurred before the trial as a direct and proximate result of the injuries sustained by Betty Lee on the occasion in suit to be $146.75, but found that she sustained no monetary damages from such injuries.

The single point of error presented is that the finding of the jury denying Betty Lee damages for her injuries is against the great weight and preponderance of the evidence. We sustain this point.

Perry Hurd, a witness for appellant, testified that he was present when the garbage truck collided with the Floyd car, and concerning Betty Lee testified:

“Q. Where was the little girl?
“A. She was in the car, kind of tied up in the dash, or wheel, or something.
“Q. Did she appear to be injured?
“A. She was.
“Q. Will you describe her condition for us?
“A. Well, roughly, her teeth looked like her gums were bleeding pretty bad. There was so much blood I couldn’t tell exactly.
“Q. Was she crying or unconscious ?
“A. She was kind of out at that time.”

This witness conveyed Mr. Floyd and his daughter to the hospital, and regarding the condition of the child enroute testified :

“Q. What was her condition on the way to the hospital there?
“A. Well, at first she was kind of out, I would say, and she was bleeding pretty bad, and I disremember whether he taken his shirt or his other shirt and tried to stop some of the blood, and before we got into town, of course, she came to.
Q. Did she have any difficulty there in the truck?
“A. Well, she was kind ot struggling from so much blood.”

On cross examination, Mr. Hurd testified:

“Q. Where was the blood coming from on this little girl?
“A. Well, it looked like to me it was coming out of her gums under her lip somewhere.
“Q. It was from a cut on the mouth ?
“A. It was from a cut somewhere.”
Appellant’s father gave the following testimony regarding her injuries:
“Q. How was your little girl hurt?
“A. Well, sir, she had an injury on her forehead and a smaller injury to her mouth.
“Q. Was she conscious or unconscious ?
“A. Well, she was unconscious when I remember holding her.
buo ⅞ gf o> o i? 5? ⅞ * o o ⅝ at ⅜ *
“A. Well, naturally, she had a cut on her head, and she had soreness and complained of headaches, as a child would, * * * I mean I ain’t saying it is me or someone else; I mean just as a child, you know, crying with it.
“Q. Did it affect her any as to her emotional state, or anything of that kind ?
“A. Yes, sir.
“Q. How was that?
“A. Well, sir, when she seen a City garbage truck, she went into hysterics.
Q. How long did that last?
“A. Over a period of months.
* * * * * *
“Q. All right. Does she have a scar from the cut?
“A. Yes, sir.
“Q. Where is it?
“A. On her forehead right there under the hairline.
“Q. Could you describe it just briefly ?
“A. Well, sir, it is just a scar an inch or so long on the forehead, and the stitch marks still show on it.
“Q. You mean the cross-marks?
“A. Yes, sir.”

On cross examination Mr. Floyd having testified that Betty Lee was, at the time of trial, four years old, two years having elapsed since her injuries, testified:

“Q. And that scar has just about disappeared, hasn’t it?
“A. No, sir.
Q. Well, it is not a disfiguring scar, is it?
“A. Well I couldn’t state what disfiguring meant.”

Dr. John Garcia, who gave Betty Lee emergency treatment at Brackenridge Hospital shortly after she sustained injury, testified:

“A. We saw Betty Floyd in the emergency room at Brackenridge Hospital.
“Q. All right. What was her condition at the time you saw her?
“A. Well, we had been called down to see her because she had been in an automobile accident. When we saw her, she was bleeding profusely from a laceration over her left eyebrow, a little bit higher than the eyebrow.
“Q. All right. What examination did you perform at that time and what were your findings?
“A. Our examination was complete. The only pertinent findings we found, other than the laceration, were evidence of sluggish reaction of her pupils to light, from which we concluded she might have a very mild cerebral concussion.
“Q. What is a cerebral concussion, Doctor.
“A. It is essentially a shaking up of the brain inside the skull.
“Q. All right. What treatment, if any, did you give her?
“A. Supportive only, and we sutured up her laceration.
“Q. By sutured, you mean * * *
“A. Closed it up surgically. We cleaned it up and pulled it together.
“Q. What we call stitches?
"A. Yes, sir.
“Q. All right. Other than the treatment there in the emergency room and possibly removing the sutures, did you give her any other treatment or see her on any other occasion?
“A. No, sir.
“Q. As far as you know, has she recovered from the injuries?
“A. As far as we know, she did well.
“Q. How about the laceration that she received, Doctor, * * * was that the type of laceration in your opinion that would probably leave a scar ?
“A. It very likely would. It was the type that where breaking the skin is not real clean. It is due to pushing the skin against a hard object, and it frequently leaves a little more scar than if it was cut with a piece of glass or cut with a knife or something like that.
“Q. In your opinion, would you have expected such a laceration to leave a scar?
“A. I would think it would leave some scar.
“Q. Do you recall about where it was on her, * * * whether it was at her hairline or below the hairline ?
“A. I have listed it * * * I have not seen her in a long time, but we had it listed as above the left eyebrow, so it could be anywheres below the hairline, between the hairline and the eyebrow.
“Q. All right, sir; some portion of the forehead then.
“A. Yes, sir.”

On cross examination, Dr. Garcia testified:

“Q. Doctor, it is a fact, is it not, that a two-year old child will tend to outgrow a scar so that it would not be noticeable ?
“A. On the whole, they should. It depends, of course, on the care that was given the child.
* * ⅜ * * *
“Q. Doctor, how long do you suppose the child was in the emergency room?
# * * * * *
“A. I would imagine about thirty-five or forty minutes; under an hour, yes, sir.
“Q. I see. How many stitches were taken, or sutures?
“A. We took six stitches.”

On redirect examination, Dr. Garcia testified that from the type of laceration sustained by Betty Lee to her forehead that he would expect it under ordinary circumstances to leave more scar than a clean wound.

Dr. Garcia also testified that the charge for his services, $125.00, included subsequent treatment of the child for her injuries. No subsequent treatment was requested or given.

Mr. J. C. Bailey, a witness for appellee, and one of the helpers on the garbage truck driven by appellee, testified that following the collision he walked over to the Floyd car. We quote from Mr. Bailey’s testimony:

“A. Well, after the truck stopped, I got out and walked over to the car and asked if any of them was hurt.
“Q. And what did they say?
“A. They said no, wasn’t nobody hurt.
“Q. Do you remember which one of them said that ?
“A. The fellow driving.
“Q. Did he look like he was hurt?
“A. No, sir.
“Q. Did he look like he was dazed and didn’t know what he was saying ?
“A. No, he was laughing about it. He was laughing, he didn’t think anybody was hurt, and later he looked down at the kid and blood was running down her forehead, and started hollering.
“Q. Who started hollering?
“A. The baby.
“Q. I see. When he said that nobody was hurt, was that before or after he saw the child was bleeding?
“A. That was before.”

Testifying further, and in speaking of Mr. Floyd, the witness continued:

“Q. Then how did he get the child out?
“A. He reached over * * * after he opened the door, his wife, or the lady in the car, said, ‘Do something for her.’ So he reached back in the car and got the baby and started running down the road with it.
“Q. And how far did he run down the road?
“A. Oh, about, I would say, fifteen or twenty yards.
“Q. And why did he stop ?
“A. Another fellow was standing up there and hollered and told him he would take him to the doctor, standing to the side there, driving a truck.
“Q. Do you know a colored man by the name of Perry Hurd?
“A. Well, I have seen him.
“Q. Was it a colored man that he took the child to ?
“A. Yes, it was.”

Appellee, called as an adverse witness, testified:

“Q. Did you see the little girl?
‘‘A. I seen the little girl when they put her in the truck ?
“Q. Was she hurt?
“A. I seen a little bloody spot on her. I don’t know how had.
“Q. Just a little bloody spot, but you don’t know how bad?
“A. Well, I wouldn’t say. I didn’t get that close.”

Called as a witness in his own behalf, appellee testified:

“Q. Could you tell whether or not anybody in the Mercury was hurt?
“A. I remember when I saw the little girl, she had a little bloody spot on her; that is all.”

We have set forth all of the evidence of substance relating to the injuries sustained by Betty Lee.

To us, the evidence is overwhelming that Betty Lee sustained physical pain and some disfigurement. If, as is unquestioned, these elements have monetary value, then some such value should be awarded to Betty Lee.

Mental anguish, also an element of damage submitted to the jury, is more difficult of ascertainment in a two-year old child. Betty Lee’s aversion to garbage trucks is an indication of mental suffering. Also, it would seem to us, as laymen, that a child of Betty Lee’s age who does not expect or understand the infliction of pain upon her would sustain more mental shock from injury than an adult who is aware of the facts of life.

The judgment of the Trial Court is reversed and this cause is remanded for trial.

      . She prosecuted this suit through a guardian ad litem.

      . See Tex.Jur.2d 191.