author: CHADICK, Chief Justice.

text:
    Joe Ray BLALACK, Co-Independent Executor of the Estate of Joe Blalack, Deceased, Appellant, v. Billie BLALACK, Appellee.
    No. 7857.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 9, 1968.
    See also Tex.Civ.App., 419 S.W.2d 255.
    Gerald H. Fortney, Houston, for appellant.
    Earl Sharp, Longview, for appellee.
   CHADICK, Chief Justice.

In a receivership proceeding ancillary to a suit for construction of a will as well as for other relief, the District Court of Gregg County appointed a receiver for the assets and property of the Estate of Joe Blalack, Deceased, while an independent administration of the estate was in progress. An appeal from the trial court’s order was perfected. The judgment of the trial court is affirmed.

In his probated will, the decedent, Joe Blalack, appointed his son, Joe Ray Bla-lack, Independent Executor, and his surviving wife, Billie Blalack, Independent Executrix of the will. The section of that instrument pertaining to the questions raised in this appeal is as follows:

“4. I appoint and constitute Joe Ray Blalack independent executor and Billie Blalack independent executrix of my will, and ask that no bond he required of them, and that no other action shall he had in the county court in relation to the settlement of said estate than the probating and recording of this, my will, and the return of the statutory inventory, appraisement and list of claims of said estate, and of all claims due or owing by me at the time of my death. The above named persons are to act jointly and no decision is to be made with reference to my property unless they be in agreement on the steps to be taken. If during the process of administering my estate, the above named executor or executrix would die, or refuse to serve, I hereby appoint the First State Bank of Gladewater, Texas, joint executor.”

The suit for construction of the will (and other relief) was instituted in the District Court of Gregg County by Mrs. Billie Blalack in her individual capacity as plaintiff against Joe Ray Blalack as defendant both in his individual capacity and as Co-Independent Executor of the Estate of Joe Blalack, Deceased.

The appellant first point of error is as follows, to-wit:

“The trial court erred in rendering judgment for appellee in that the district court has no jurisdiction to appoint a receiver in a decedent’s estate where there are duly qualified and acting representatives appointed by the county court and there is a necessity for administration.”

It is conceded on all sides that a necessity for an administration of the estate existed at the time the receivership order was entered in the district court. A county court has original general jurisdiction to probate wills, grant letters testamentary and of administration, settle accounts of executors, and to transact all business appertaining to deceased persons, including the settlement, partition and distribution of the assets of decedents’ estates. Vernon’s Ann.St.Tex.Const. art. V, Sec. 16. The district court of a county has appellate jurisdiction to exercise general control over the county court in the instances mentioned. Tex.Const. art. V, Sec. 8. The county court’s original jurisdiction is exclusive in nature, and may be superceded only when controversies arise in the administration of an estate presenting issues for settlement, such as the construction of a will, which the county court is not jurisdiction-ally competent to decide; under such exceptional circumstances the district court may exercise its general equity jurisdiction to resolve such issues. Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980 (1933); Ferguson v. Ferguson, 66 S.W.2d 755 (Tex.Civ.App., Eastland 1933, no writ); 49 Tex.Jur.2d Receivers Sec. 31 (1963). The first mentioned case specifically held the district court had jurisdiction to construe a will while an independent administration of an estate was pending in county court. An action for construction of Joe Blalack’s will is incorporated in Mrs. Blalack’s pleading in her suit in district court. The district court, under the authorities last cited, had jurisdiction to make an adjudication. The appellant’s first point of error is overruled.

Mrs. Blalack’s first amended original petition stated that the acts and conduct of Joe Ray Blalack alleged in her original petition constituted a refusal to serve as Co-Independént Executor of the Will of Joe Blalack, Deceased, within the meaning of the last sentence of Section 4 of the will (the section quoted above). Appellant’s brief does not challenge the sufficiency of Mrs. Blalack’s district court pleadings to state an action to construe a will, but by Points of Error 2 and 3 raise the issues that on the face of the record there was no necessity for the appointment of a receiver and that appointment of a receiver was error because Mrs. Blalack otherwise had an adequate remedy at law.

With reference to Point of Error Number 2, that on the face of the record there was no necessity for the appointment of a receiver, the appellant cites no authority, but makes the following argument, to-wit:

“The undisputed evidence offered by Appellee on the hearing on January 5, 1967, was to the effect that there were debts and that certain properties of the Estate needed to be sold (S.F., page 3) and urged the necessity of appointment of a receiver. In this connection, Appellant would simply point out that the order appointing the receiver was not entered until March 28, 1967, more than two and one-half months from the time Appellee proceeded upon her petition, and even more conclusive is the fact that to the date of the signing of this brief, no receiver has been qualified under such order. It is certainly inconceivable that if any urgent necessity for a receivership had ever existed in this matter, Ap-pellee would certainly have seen that the appointee was qualified or upon his refusal to act, would certainly have insisted that the Court make a substitute appointment. Appellant strongly urges that the record herein conclusively shows a total lack of the necessity required for the appointment of a receiver.”

In overruling the point, it may be remarked that of necessity the trial judge’s ruling was based upon pleadings and proof of events and occurrences prior to the hearing. Review of the trial court’s action is based upon the record made in the receivership hearing. Cotton v. Rand, 92 S.W. 266 (Tex.Civ.App.—San Antonio 1906, writ dism’d w. o. j.); 49 Tex.Jur.2d Receivers Sec. 78 (1963).

The last point, that “the trial court erred in appointing a receiver herein for the reason that the appellee had an adequate remedy at law”, is supported in appellant’s brief by the statement and argument quoted below, to-wit:

“Appellant would show that Appellee not only had an adequate remedy at law other than the appointment of a receiver, but that she has pursued such remedy. Reference is made to Cause No. 7855 pending before this Honorable Court. Such cause is an appeal from an order of the 71st District Court entered on the same day as the order herein, which order dismissed an appeal from an order of the County Court dated February 16, 1967 in Cause No. 8347 styled the Estate of Joe Blalack. The County Court order referred to was an order requiring both Appellant and Appellee to give bond under the provisions of Article 149 of the Probate Court. Said order was entered upon opposing motions of Appellant and Appellee. Reference to the record in Cause No. 7855 and the record herein will show that Appellee first filed suit in the District Court for the appointment of a receiver and proceeded to trial on such application on January 5, 1967, and subsequently, but before the District Court had made its ruling upon such application and the evidence offered, filed a motion in the County Court under Article 149 of the Probate Code and caused an order to be entered thereunder prior to any action on the part of the District Court. Appellant appealed the County Court order to the District Court and same was dismissed for want of jurisdiction by said Court on the same day the District Court entered the order appealed from in this cause, the appeal from such order being pending in the aforementioned Cause No. 7855 in this Court. Appellant would show that it is clear from the courses of action taken by Appellee that she knew the District Court had no jurisdiction for the appointment of a receiver and knew that the proper remedy was that provided by Article 149 of the Probate Code, such procedures being not only an adequate remedy, but the only proper remedy herein.”

The Point of Error, Number 3, must be overruled for reasons now to be discussed.

The financial position of the Estate of Joe Blalack, Deceased, as it appeared in an inventory, appraisement and list of claims filed in the county court and made a part of the record in the district court, is as follows:

(There may be other claims pending such as the suit of Mr. Berube against the Berube property.)”

Evidence was presented in the receivership hearing from which the trial judge might conclude that the two joint legal representatives of the decedent’s estate had not been able to agree upon any important managerial decision affecting the estate for a period of several months prior to the hearing. Production of oil and gas from estate owned property by a long-time employee was condoned rather than agreed to by the joint legal representatives. Thousands of dollars of the indebtedness represented by notes payable had matured and demand for payment had been made. The joint legal representatives were unable to agree to use a part or all of available funds or liquidate assets to pay indebtedness or agree upon any course of action that would avert foreclosure of liens attaching to estate property. The stalemate in management caused the loss of trade discounts. The impasse was eroding the estate and subj ecting its assets to the threat and danger of loss at a distress sale and ultimately the estate to bankruptcy.

The remedy the appellant suggests as being available to Mrs. Blalack, that is, action authorized by Tex.Prob.Code Ann. § 149, V.A.T.S. (1956) would not adequately protect the Estate of Mrs. Blalack’s interest in it. Protection of the Estate’s assets required immediate action by its management. A motion in the county court to require Joe Ray Blalack to make a bond or be discharged as an Independent Executor would not prove expeditious, regardless of the course it took, nor furnish immediate management and protection of the assets of the Estate. If Joe Ray Blalack was not required by the County Court to make a bond, or if he was and did so, the stalemate would not be relieved. If he was so required and failed to do so under the law, a time interval would necessarily elapse which might be extended for an indefinite length by court action. The record shows the district court was confronted with a situation which required the immediate appointment of a receiver to take charge of and protect the assets of the estate and the interest of Mrs. Blalack. The trial judge is not shown to have abused his discretion. Griggs v. Brewster, supra. See also 49 Tex.Jur.2d Receivers Sec. 31 (1963) where it is said:

“Although the authority of a personal representative will not generally he displaced by the appointment of a receiver, a receiver may be appointed for property in possession of an executor or administrator where necessary to protect the Estate.”

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    MOUNT ENTERPRISE INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. Paul S. COLLEY et al., Appellees.
    No. 316.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 25, 1968.
    Rehearing Denied Feb. 29, 1968.

      J. C. Hinsley, Austin, for appellants.
    Waldrop & Shaw, Charles W. Shaw, Henderson, for appellees.
   DUNAGAN, Chief Justice.

This is an appeal by the Mount Enterprise Independent School District, Tom Vaught, Frank F. Evans, R. C. Phillips, B. W. Jackson, Odell Hodge, Curtis Hall, R. A. Hudson and Terrell Collier, appellants, from a judgment of the Fourth Judicial District Court of Rusk County, Texas, denying a writ of mandamus sought against the County Judge of Rusk County. Appellants’ suit was instituted against Hon. Paul S. Colley, then County Judge of Rusk County; Henderson Independent School District; Minden Independent School District; the County School Trustees of Rusk County; and the County School Trustees of Panola County. Prior to the trial of the case below, the said Paul S. Colley resigned as County Judge and, on December 5, 1966, he was succeeded by Hon. F. R. Files, who was thereupon, by amended petition, made a party defendant to the suit. The cause was tried before the court without a jury. Most of the facts material to a decision of the controversy were stipulated although some testimony was adduced upon the trial.

The principal question involved is whether, under Art. 2922a of the Vernon’s Ann. Revised Civil Statutes of Texas, the County School Trustees of Rusk County, either alone or in conjunction with the County School Trustees of Panola County, had the power to annex the Minden Independent School District to the Henderson Independent School District. The facts may be summarized briefly from the stipulation made by the parties. Appellant, Mount Enterprise Independent School District, is an independent school district situated wholly in Rusk County. Appellee, Henderson Independent School District, hereinafter referred to as “Henderson District,” is an independent school district and, at all times material hereto, its territory was situated wholly within Rusk County. On and prior to September 16, 1966, Minden Independent School District, hereinafter referred to as “Minden District,” was an independent school district. It was also known as a county-line district and a part of its territory was situated in Panola County. The only schools, however, of such district were located in Rusk County and the Minden District, indisputably, was for school purposes under the administrative supervision of Rusk County.

On September 16, 1966, the County School Trustees of Rusk County, hereinafter referred to as “Rusk Trustees,” passed an order pursuant to Article 2922a, aforesaid, reciting that the Minden District and the Henderson District were contiguous and that Rusk County had jurisdiction of the schools of such districts; that the Henderson District had more than 2S0 scholas-tics and the Minden District had less than 250 scholastics; that the Board of Trustees of each of said districts had consented to the annexation of the two districts. The order thereupon annexed the Minden District to the Henderson District under the provisions of Article 2922a aforesaid.

Commencing on September 16, 1966, the County School Trustees of Panola County, hereinafter referred to as “Panola Trustees,” passed a series of orders relating to the annexation of the Minden District to the Henderson District. The matter was first considered by the Panola Trustees on September 16, 1966; however, the Board concluded at that time that it had not studied the question sufficiently in order to determine whether the annexation should he ordered and, accordingly, the meeting was adjourned for further consideration until September 21, 1966. At the September 21, 1966, meeting, the Panola Trustees decided that more study of the proposed annexation was desired and this meeting was adjourned until a later date. On September 28, 1966, at a called meeting, the Panola Trustees ordered the two districts annexed under the provisions of Ar-tide 2922a aforesaid. It was made known at that meeting, however, that a subsequent meeting of the Board would he necessary in order to ratify, confirm and adopt the action taken because two of the board members had not signed a waiver of notice and call for the meeting. Thereafter, on September 30, 1966, proper waivers having been obtained, the Panola Trustees again met and approved, by an order substantially the same as that passed by the Rusk Trustees, the annexation of the two districts.

It was further established that on September 26, 1966, there was presented to the County Judge of Rusk County a petition of certain individuals seeking a consolidation election between the Mount Enterprise Independent. School District and the Minden District. Thereafter, about September 30, 1966, the County Judge held an informal hearing at which all interested parties presented their views with reference to the power of the court to order the election. The judge requested briefs to study the question as to whether he could legally call the election and, having concluded that he could not legally do so, on October 17, 1966, he so advised the parties. No question has been raised as to the qualifications of the persons petitioning the court for the election. The County Judge determined that the petition was signed by the requisite number of qualified citizens of the Mount Enterprise and Minden Districts. Because of the refusal of the County Judge to order the consolidation election, appellants instituted this mandamus suit below, and have timely perfected their appeal from the judgment denying mandamus.

Although there are subsidiary questions involved on this appeal, the crucial issue relates to the power of the" County School Trustees to annex independent school districts under Article 2922a. Appellants contend under Points of Error Nos. 1, 2, 7, 8 and 10, that the Rusk Trustees and the Panola Trustees had neither the authority nor the power under Article 2922a, either singly or in concert, to annex the county-line Minden District. Appellants, under Points of Error Nos. 3, 4, 5, 9, 11 and 12, further contend that there was no valid annexation and that the County Judge of Rusk County should have ordered the consolidation election sought by them under Article 2806, Revised Civil Statutes of Texas, and that the trial court erred in refusing mandamus. Appellees assert that the trial court did not err in refusing mandamus because the annexation of the Min-den District to the Henderson District by the Rusk Trustees and Panola Trustees, or by either of them, was authorized under the provisions of the Statute. Appellees do not deny that the County Judge under Article 2806 has authority to call elections for the consolidation of districts, but ap-pellees contend that the Panola Trustees, by commencing a consideration of the annexation under Article 2922a on September 16, 1966, its jurisdiction of the matter was then invoked and such jurisdiction continued until the final order of annexation was made on September 30, 1966. Appel-lees further contend that under Article 2922a, the Rusk Trustees had the power and authority to annex the two districts without the consent of the Panola Trustees but, they argue further, in the event such contention is erroneous, nevertheless, the School Trustees of both counties jointly had the power and authority under the Statute to order the annexation. The above Points of Error are grouped for discussion.

It is well settled in this state that Statutes relating to the creation and operation of rural high school districts should be liberally construed with a view of effectuating the intention of the legislature, Fairfield Independent School Dist. v. Streetman Independent School Dist., 222 S.W.2d 651 (Tex.Civ.App., Waco, 1949, no writ); Elliott Common School Dist. No. 48 v. County Board of School Trustees, 76 S.W.2d 786 (Tex.Civ.App., Texarkana, 1934, err. dism.); County Board of School Trustees, etc. v. Wilson, 15 S.W.2d 144 (Tex.Civ.App., Waco, 1929, err. dism.). Article 2922a forms a part of Chapter 19A of Title 49, Vernon’s Texas Civil Statutes, which provides in detail for the establishment, operation and control of rural high school districts as part of the general system of public education in this state. The only part of Article 2922a, all parties concede, which could have any application here is as follows:

“ * * * provided, also, that the county school trustees may annex one or more common school districts or one or more independent school districts having less than two hundred fifty (250) scholastic population to a common school district having four hundred (400) or more scholastic population, dr to an independent district having two hundred fifty (250) or more scholastic population. * ⅜ ⅜ ff

Such provision, it has been held by the Supreme Court of Texas, did not have the effect of providing a second method of forming rural high school districts, but the legislature did intend by such enactment to provide a second method of providing for better and stronger rural schools, State ex rel. Childress v. School Trustees of Shelby County, 150 Tex. 238, 239 S.W.2d 777 (1951). While the quoted provision admittedly does not in express language include “county-line districts,” the latter are not expressly excluded from the benefits thereof. We are not prepared to say that the legislature intended to deny county-line school districts the privilege of better rural high schools or that the Statute is not broad enough to permit the annexing where one or more of the school districts are county-line districts. The whole purpose of the legislation is to provide for stronger rural high schools and the mere fact that a small portion of the Minden District lies within Panola County should not deprive the District of the benefits of the Statute. This is especially true under the facts in this case wherein both the Rusk Trustees and the Panola Trustees have jointly ordered the annexation of the two districts.

The Minden District, as a county-line district, was created by virtue of Art. 2922d, which like the Article under consideration, forms a part of Chapter 19A of Title 49 aforesaid. While a part of the Minden District lies in Panola County, it is undisputed that the Rusk County Trustees had the supervision of the Minden District and all of the schools of the latter district actually lie within Rusk County. Article 2922d, in express language, states that a county-line rural high school district, when created thereunder, shall be governed as other rural high school districts “herein provided for.” It is persuasive therefore that the legislature intended that the county-line districts created under Article 2922d would be extended the benefits of an independent school district and if such districts qualify within the statutory scheme of scholastic population and otherwise, there is no doubt that the Rusk Trustees and the Panola Trustees, in concert at least, have the power under the Statute to annex the Henderson and Minden Districts.

In support of appellants’ contention that the Panola Trustees did not acquire jurisdiction, they cite London Independent School Dist. v. Thomerson, 223 S.W.2d 314 (Tex.Civ.App., San Antonio, 1949, err. dism.). In the London case, which is distinguishable from the case under consideration here, the County Board took no action whatsoever when the matter of annexation was first submitted to it. In the case at bar, some action was taken by the Panola Trustees on September 16, 1966, as is reflected by the minutes of the meeting of said Panola Trustees. The matter of the annexation was discussed by the board members and the board concluded that additional study should be made of the question. It is clear that the Panola Trustees actively acquired jurisdiction of the subject matter on September 16, 1966.

Although not speaking directly to the point in question, the court, in Dickens Independent School District No. 905 v. County School Trustees of Dickens County, 322 S.W.2d 544 (Tex.Civ.App., Amarillo, 1959, n. r. e.) had no difficulty in upholding an annexation although the pleadings in the case disclosed that one of the districts was a “county-line” district. In the Dickens case, the Dickens County School Trustees filed suit seeking to have declared invalid an order passed by the County School Trustees annexing the Dickens Independent School District to the Spur Independent School District of Dickens County. A part of the Spur Independent School District was located at the time of annexation in Kent County and no consent had been obtained from the Kent County School Trustees for the annexation. The parties had, however, stipulated that both independent school districts were in Dickens County, but the pleadings disclosed that the Spur Independent School District extended over into Kent County although the Spur District schools were under the control of the Dickens County School Trustees. The court held that the trial court was justified in concluding under Art. 2922a the authority existed for the annexation in question and that such authority was not affected by the fact that one of the districts had some territory lying in another county. The court approved the annexation although no consent had been obtained from the Kent County School Trustees.

Appellants argue, however, that inasmuch as the final order of the Panola Trustees confirming the annexation was not entered until September 30, 1966, and since appellants had on September 26, 1966, tendered a proper petition for the consolidation election, the Panola Trustees had no power to order or consent to the annexation. We cannot agree with this contention because the law is well settled that where the powers of two bodies are coordinate or equal, the tribunal first acquiring jurisdiction (jas the right to retain it until it has completely disposed of all matters and issues so presented to it. State ex rel. George v. Baker, 120 Tex. 307, 40 S.W.2d 41 (1931); Erath County School Trustees v. Hico County Line Independent School District, 247 S.W.2d 564 (Tex.Civ.App., Eastland, 1952, err. ref.); Handley v. Coker, 248 S.W.2d 814 (Tex.Civ.App., Beaumont, 1952, err. ref.).

It is our view that when the Panola Trustees on September 16, 1966, first undertook a consideration of the advisability of annexing the Minden District to the Henderson District, its jurisdiction was thereupon invoked and such jurisdiction continued until the Panola Trustees terminated the matter by finally confirming the order of annexation on September 30, 1966. It would be a harsh construction of the law to require that, to be effective, the Board would have to undertake to consider and complete the matter in one meeting. The Board certainly had the right, if not the duty, to continue the hearing on the matter of annexation until such time as it satisfied itself as to whether such annexation was advisable and in the best interests of the schools involved. The Board was entitled to a reasonable time within which to make such a determination and we do not find unreasonable the time consumed in this case.

All parties cite and quote from the case of State ex rel. Childress v. School Trustees of Shelby County, supra. The cited case did not decide or discuss the question presented here. The court held in part that Article 2922a provided two methods of strengthening and improving rural schools, namely, (1) by the creation of rural high school districts through “grouping1' (not involved in the case before us), and (2) by strengthening existing common and independent districts through “annexation” of other districts thereto. The court held that the statute did not authorize the creation of rural high school districts through the annexation process. That is not here involved. Since we hold that under Article 2922a, the Rusk and Panola Trustees, acting in concert, had the power to order the annexation, we do not reach the question as to whether the Rusk Trustees alone had such power. Appellants’ remaining point (6) complains of error in the failure of the trial court to timely file findings of fact and conclusions of law as required, upon proper request, by Rules 296 and 297, Texas Rules of Civil Procedure. The transcript was filed with the Clerk of this Court on May 24, 1967, together with the statement of facts. Thereafter, on June 15, 1967, a supplemental transcript containing the trial court’s findings of fact and conclusions of law was tendered and filed with the Clerk of this Court. Although not' timely filed by the trial court, this Court has considered the findings and appellants’ arguments attacking the same. The general rule is that the failure of the trial court to file findings of fact and conclusions of law upon proper request may constitute reversible error if the complaining party has suffered injury thereby. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944). Here, however, the findings and conclusions were filed, although late. The completed record is before this Court and appellants have shown no harm by reason of the late filing. Under such circumstances, reversible error is not shown. Tippit v. Tippit, 360 S.W.2d 177 (Tex.Civ.App., Beaumont, 1962, n. w. h.); Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App., Houston, 1965, writ ref., n. r. e.). The one case cited and relied upon by appellants is Jackson v. Skrivanek, 292 S.W.2d 106 (Tex.Civ.App., Galveston, 1956, n. w. h.). The cited case is not in point because the findings and conclusions therein were never prepared or filed by the trial court.

Finding no reversible error herein, the judgment of the trial court is affirmed.

      . This Statute was amended in 1967 by the 60th Legislature, p. 645, Chapter 240, Section 1, effective August 28, 1967. The relevant portions of the Statute at the time of the annexation involved herein read as follows:
      “In each organized county in this state, and in any county which shall hereafter be organized, the county school trustees shall have the authority to form one or more rural high school districts, by grouping contiguous common school districts having less than four hundred (400) scholastic population and independent school districts having less than two hundred fifty (250) scholastic population, for the purpose of establishing and operating rural high schools; provided, also, that the county school trustees may annex one or more common school districts or one or more independent school districts having less than two hundred fifty (250) scholastic population to a common school district having four hundred (400) or more scholastic population, or to an independent district having two hundred fifty (250) or more scholastic population. * * * ”

      . Article 2922d, a part of Chapter 19A, Vernon’s Annotated Statutes, authorizes the County Board of Trustees of two or more adjoining counties to establish a county line rural high school district and to designate the county which shall have supervision of said district.

      . Article 2806, Revised Civil Statutes of Texas, 1925, requires the County Judge to order elections when the requisite number of legally qualified voters of each of several contiguous common school districts, or contiguous independent school districts, requests a consolidation of such districts for school purposes.


author: PER CURIAM.

text:
    In re the Adoption of Margarita GOMEZ and Marla Del Refugio Gomez, minors.
    No. 5904.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 1, 1967.
    Peticolas, Luscombe & Stephens and Mark Howell, El Paso, for petitioner.
   OPINION

PER CURIAM.

Walter Strawn, Jr., filed his verified petition in the District Court of El Paso County, Texas, for leave to adopt the minor girls, Margarita Gomez and Maria del Refugio Gomez. Petitioner alleged that he is a SSG-E 6 in the United States Army living in El Paso, Texas and the minor Margarita Gomez was born in Juarez, Chihuahua, Mexico, on October 17, 1951, and Maria del Refugio Gomez was born in Juarez, Chihuahua, Mexico, on July 4, 1957, both members of the white race, as is their mother. That he married their mother on October 13, 1958 and the two children have lived in the home of petitioner since said date. Since the children were not born in lawful wedlock, the written consent of the mother was obtained and both children appeared in person before the court and requested that the court grant the adoption, and Margarita Gomez, being over 14 years of age, gave her written consent to the adoption.

The court made findings of fact and conclusions of law, and further recited in the judgment that all investigations, written reports and notice to the Executive Director of the State Department of Public Welfare at Austin, Texas — in fact, all requirements of the Texas Adoption Statutes— had been given full compliance to the satisfaction of the court. But the court also found and recited that the girls, subjects of adoption, were members of the white race and the petitioner was a member of the negro race and, although the minor girls are proper subjects for adoption and the home of petitioner is a suitable home for said minor girls and such home and children are suited to each other, that such adoption is prohibited by Section 8 of Article 46a of the Vernon’s Ann.Revised Civil Statutes of Texas prohibiting the adoption of a white person by a negro person, and thus denied the petition for adoption. The judgment further recites that this prohibition was the sole reason for denying the petition, and but for such prohibition the petition for leave to adopt the children would have been granted; from which judgment • denying the petition this appeal is taken.

The sole point of error reads:

“FIRST POINT
“The District Court erred in not granting Petitioner leave to adopt for the reason that Section 8, Article 46a, Revised Civil Statutes of Texas is unconstitutional as violating the Equal Protection Clause of the United States Constitution. (Section 1, 14th Amendment to the United States Constitution).”

Section 8, Article 46a, T.R.C.S., reads as follows:

“No white child can be adopted by a negro person, nor can a negro child be adopted by a white person.”

Under the Texas Miscegenation Statute, Article 493, Vernon’s Ann. Texas Penal Code, defines “negro” and “white person” as follows:

“The term ‘negro’ includes also a person of mixed blood descended from negro ancestry from the third generation inclusive, though one ancestor of each generation may have been a white person. Any person not included in the foregoing definition is deemed a white person within the meaning of this law.”

Section 1 of Amendment XIV of the United States Constitution provides:

“ * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Petitioner admits that the exact question presented in his sole point of error has never been passed upon by either a State or a Federal court. However, he cites the annotation, “Race as a factor in adoption proceedings” to be found in 54 A.L.R.2d 909, and states:

“In no case treated in the annotation is the question raised inquiring whether a racial ban on adoption is unconstitutional. All of the cases treated in the annotation discuss to what extent the trial judge can consider racial differences in granting or denying the adoption. In reversing a denial of an adoption of an illegitimate white child by its colored stepfather, the court in Re Adoption of a Minor (1955) 97 App. D.C. 99, 228 F.2d 446, 54 A.L.R.2d 905, stated that while a difference in race may have relevance in an adoption proceeding that factor alone cannot be decisive in determining what is best for the welfare of the child, and that in this case it was to the child’s best interests to continue to occupy the home of its natural mother and colored stepfather and their children, which the child would do regardless of the decree in the adoption case, and that a denial of the adoption simply had the result of denying the child a legitimized status in the home in which it lived.”

The case referred to in the annotation, 54 A.L.R.2d 905, is summarized as follows:

“Adoption of a child was sought by the instant petition of its natural mother and stepfather. It appeared that the child and mother were of the white race, and that the stepfather was of the colored race, and that the mother and stepfather had refused to sign a loyalty declaration required of tenants in a federal housing project.
“On an appeal by the petitioners, a decree of the United States District Court, District of Columbia, denying the petition, was reversed, and the case remanded with directions to grant the petition, by the United States Court of Appeals, District of Columbia Circuit, which, in an opinion by Bazelon, Circuit Judge, held that the above-mentioned factors were not decisive and that a consideration of all the circumstances in the case relative to the best interests of the child pointed in the direction of adoption.”

However, it is further noted that the District of Columbia law does not prohibit interracial adoptions.

Petitioner then cites us to the various instances during the past decade wherein racial discrimination has been declared vio-lative of the United States Constitution, stating:

“ * * * In the fields of transportation, education, voting, labor and employment, regulation of business or occupation, recreational facilities, eating facilities, hospital facilities, and jury selection State racial discrimination has been struck down by the United States Supreme Court as violating the equal protection clause.”

We are cited to: “Annotations: Race discriminations—Supreme Court Cases, 15 Law.Ed.2d 990, Supplementing 94 Law.Ed. 1121, 96 Law.Ed. 1291, 98 Law.Ed. 882; 100 Law.Ed. 488, 3 Law.Ed.2d 1556; 6 Law.Ed.2d 1302, 2 Law.Ed.2d 1105; ‘Race Discrimination in the selection of a Grand or Petit Jury’, 94 Law.Ed. 856, 2 Law.Ed.2d 2040."

In the case of Hamm v. Virginia State Board of Elections, 230 F.Supp. 156, 157 (U.S.D.C., E.D. Virginia, 1964) the court, in its opinion recites:

“The ‘separate but equal’ racial doctrine was condemned a decade ago in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Subsequent decisional law has made it axiomatic that no State can directly dictate or casually promote a distinction in the treatment of persons solely on the basis of their color. To be within the condemnation, the governmental action need not effectuate segregation of facilities directly. Cf. Anderson v. Martin, 375 U.S. 399, 402, 84 S.Ct. 454, 11 L.Ed. 430 (1964). The result of the statute or policy must not tend to separate individuals by reason of difference in race or color. No form of State discrimination, no matter how subtle, is permissible under the guarantees of the Fourteenth amendment freedoms. See, e. g., Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-726, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) ; National Ass’n for Advancement of Colored People v. State of Alabama, ex rel. Patterson, 357 U.S. 449, 463, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).”

Petitioner further asserts that Section 8 of Article 46a, T.R.C.S., of the Texas adoption statutes is also violative of Section 3 of Article I of the Texas Constitution, Vernon’s Ann.St. which reads:

“Sec. 3. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”

about which it is stated in the “Interpretive Commentary”, under Article I, Section 3:

“ * * * Section 3 of Article I sets forth two meanings of equality, that of equal protection of the laws, and that of political equality.”

In addition to Federal cases already referred to, petitioner cites the very recent U.S. Supreme Court case of Loving v. Com. of Virginia, 388 U.S. 1, 18 L.Ed.2d 1010, 87 S.Ct. 1817 (June 12, 1967), in which Chief Justice Warren states:

“ * * * Over the years, this Court has consistently repudiated ‘[distinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774, 1785, (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny,’ Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194, 198, (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.”

Leaving the purely legal aspects of this matter momentarily, as pointed out to us by Petitioner there are certain considerations aside from the legal aspects which are perhaps worth mentioning, to-wit, the adoption of the minors by petitioner would legitimize the children and would enable them to receive benefits as dependents of a member of the Armed Forces under Army Regulations 37-104, 30421 d(9) (a) and c(2) (c).

Under the record as presented in the case before us, and the language of the cases and authorities heretofore quoted, we are impelled to the inevitable conclusion that the provision of Section 8, Article 46a of the Texas Revised Civil Statutes is unconstitutional as violative of Section 3 of Article I of the Texas Constitution, as well as Section 1 of Amendment XIV of the United States Constitution. We must, therefore, sustain the petitioner’s point of error and reverse the decision of the trial court refusing the application for adoption herein, and render judgment granting the petition for adoption.


author: PARKER, Justice.

text:
    HERRIN TRANSPORTATION COMPANY, Inc., Appellant, v. E. A. PURSLEY et al., Appellees.
    No. 6927.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 15, 1968.
    Rehearing Denied March 6, 1968.
    Danny R. Edwards, and Joel B. McCarty, Jr., Houston, for appellant.
    Allen, Taylor & Zgourides, Bill Allen, Houston, Flowers & McManus, Channel-view, for appellees.
   PARKER, Justice.

Based upon a jury verdict, judgment was entered awarding damages to the plaintiffs, E. A. Pursley and wife, Alma Pursley, against Herrin Transportation Company, Inc. in the amount of $23,310.00. This suit is for damages resulting from a truck-automobile collision. Intervenor, Pacific Indemnity Company, recovered $177.00 from the defendant, Herrin Transportation Company, Inc., being the sum paid by it to plaintiffs covering damages to their automobile. Defendant, Herrin Transportation Company, Inc., has appealed. The parties will be designated as in the trial court. The judgment of the trial court is affirmed.

Defendant has points of error contending there is no evidence or insufficient evidence to support the findings of the jury in answer to Special Issues Nos. 1, 2, 3, 4, 5, 16, and 18. In answer to Special Issue No. 1, the jury found that immediately before the collision made the basis of this suit, the driver, James Ervin Jones, backed the Herrin Transportation truck into the plaintiffs’ automobile. In answer to Special Issue No. 2, the jury found the backing of the truck was negligence. In answer to Special Issue No. 3, the jury found that such negligence was a proximate cause of the collision made the basis of this suit. In answer to Special Issue No. 4, the jury found James Ervin Jones failed to keep such a lookout to the rear as would have been kept by a person of ordinary prudence in the exercise of ordinary care, under the same or similar circumstances, which failure, the jury found in answer to Special Issue No. 5 was a proximate cause of the collision made the basis of this suit. Special Issue No. 16 and the jury’s answer is as follows:

SPECIAL ISSUE NO. 16

What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence would fairly and reasonably compensate the Plaintiffs for such damages, if any, as have been sustained in the past and in reasonable probability will be sustained in the future as a proximate result of the injuries, if any, sustained by Mrs. Alma Pursley in the occurrence made the basis of this suit, taking into account the following elements, and none other:

1.Such physical pain, if any, sustained by Mrs. Alma Pursley from the date of such occurrence to the date of this trial as a result of the injuries, if any, sustained by her in the occurrence made the basis of this suit.

2. Such mental anguish, if any, sustained by Mrs. Alma Pursley from the date of such occurrence to the date of this trial as a result of the injuries, if any, sustained by her in the occurrence made the basis of this suit.

3. Such reduced capacity to perform the services of a housewife in and about the home, if any, sustained by Mrs. Alma Pursley from the date of such occurrence to the date of this trial as a result of the injuries, if any, sustained by her in the occurrence made the basis of this suit.

4. Such physical pain, if any, as Mrs. Alma Pursley will in reasonable probability sustain in the future, beyond this date as a result of the injuries, if any, sustained by her in the occurrence made the basis of this suit.

5. Such mental anguish, if any, as Mrs. Alma Pursley will in reasonable probability sustain in the future, beyond this date as a result of the injuries, if any, sustained by her in the occurrence made the basis of this suit.

6. Such reduced capacity to work and earn money outside the home, if any, as Mrs. Alma Pursley will in reasonable probability sustain in the future beyond this date as a result of the injuries, if any, sustained by her in the occurrence made the basis of this suit.

7. Such reduced capacity to perform the services of a housewife in and about the home, if any, as Mrs. Alma Pursley will in reasonable probability sustain in the future beyond this date as a result of the injuries, if any, sustained by her in the occurrence made the basis of this suit.

To which the Jury answered: $20,000.00 Special Issue No. 18 and the jury’s answer is as follows:

SPECIAL ISSUE NO. 18
What sum of money, if any, do you find from a preponderance of the evidence to he the reasonable amount of such charges as the Plaintiffs will in reasonable probability incur in the future beyond this date for and on account of such reasonably necessary treatment of the injuries, if any, sustained by Mrs. Alma Pursley as a result of the collision made the basis of this suit?
To which the Jury answered: $3,000.00

Appellant’s truck van unit was approximately 13½ feet high with an overall length of about 50 feet, and was being driven by Jones ahead of the automobile being driven by Mrs. Alma Pursley. Jones turned the truck from a boulevard on to a street about ½ mile from the location of the collision, overrunning the turn. Instead of turning immediately on to the street, he drove the truck through a private drive where Mrs. Pursley, who was following behind, saw the van strike and pull down some wires. No objection to this testimony. The truck immediately swung back onto the street without stopping or reducing its speed. Observing this driving of the truck, Mrs. Pursley remained behind the truck while it proceeded in a northerly direction on this street for about 1/2 mile to Sarah Lane, the street on which Jones intended to turn. No objection to this testimony. He admitted that he overshot this turn. Mrs. Pursley stopped behind the van, assuming the traffic ahead caused the truck to stop. Immediately, the truck backed into the front of her automobile with no warning whatsoever to her. As a result of the impact, her 19 months old baby, asleep in the front seat, was thrown onto the front floorboard, and she herself was thrown into the steering wheel then back against the seat, with her arm striking the arm rest. The truck driver conceded that he overran his intended turn at Sarah Lane. The city police officer who investigated the collision found that the wheels of the truck left 25 feet of forward track-skids and determined that the backward track marks of 12 feet were made by the wheels of the truck leading to the point of impact with the front of the Pursley automobile. . Defendant placed one of its employees, a Mr. Fuller, on the stand and he finally admitted that he did not see the impact, did not know who backed or ran into whom and did not even identify himself as a witness to the investigating officer.

At the time of trial, November 14, 1966, Mrs. Pursley was 41 years of age, with an average remaining life expectancy of 34.73 years. Prior to the accident of October 4, 1963, she was in good health and condition. She had a previous work history which was regular and consistent up to the time of the birth of her last child. By education and experience, she was qualified to do office work. She was last employed by J. W. McDonald as a billing clerk from May of 1958 to September of 1961, being paid $1.50 an hour for 40 hours each week, plus time and one-half for at least an additional four hours every other week. She quit this job because she was expecting her last baby.

She was not working except as a housewife at the time of the collision, having three minor children at home, including her 19 year old son. She had planned to regain employment, testifying: “Our little girl would be in junior high by the time the baby reached nursery school, and I had planned on returning to work by the time I got him old enough to put him in nursery school or kindergarten. Then I could regain employment and help out * * * in putting the children through college and the things we do need.”

After the accident, her doctor saw her on 38 separate occasions, entirely on account of injuries she had sustained. He placed her on a regular program of therapy, consisting of diathermy, ultra-sound, muscle relaxant and pain medication. The painful, affected areas were in the mid-thoracic and lumbar spine, where the doctor objectively-found the presence of genuine, involuntary muscle spasm. The latter spasms in these areas were present and found by the doctor more than three years after the injury. He diagnosed her injuries as including an actual tearing of the ligaments and tendons and attachments of the affected joints, accompanied by bleeding. He explained what would occur in the initial stage of such injuries. Taking into account the force and impact to which she was subjected, the doctor expressed a firm opinion that the injuries and resulting effects he diagnosed were caused by the accident in question. In his opinion, considering the persistence of her symptoms for more than three years, the effects of her injuries would not only persist in the future, but would probably get worse as her age increased. He expressly confirmed that this type of injuries do cause pain and would limit her employ-ability outside the home, as well as her performance of work within and outside the home. The doctor gave his opinion, based upon reasonable probability, that the fair and reasonable medical expense in the future for the care of Mrs. Pursley’s injuries and resulting effects thereof would be between $100.00 and $250.00 per year, which range was explained on the basis of the rising costs of medical care and in severe symptoms accompanying advancing age. Defendant urges that the doctor admitted that he did not know with absolute certainty every matter on which he expressed his honest opinion. The doctor’s opinions as to injuries, disability and pain were confirmed by other witnesses. Mrs. Pursley is even limited in her ability to perform household duties.

Considering the evidence favorable to the jury’s findings, the no evidence points relating to Special Issues Nos. 1, 2, 3, 4, 5, 16 and 18 are overruled. Considering all the evidence and the entire record, the insufficient evidence points relating to the same issues are overruled. The trial court did not err in refusing to order plaintiff to make a remittitur. The damages found by the jury in answer to Special Issues Nos. 16 and 18 were not excessive. Joe Rone Grain Company v. McFarland, 381 S.W.2d 220 (Tex.Civ.App.1964) ; Mikell v. La Beth, 344 S.W.2d 702, 707 (Tex.Civ.App.1961, writ ref. n. r. e.); Lantex Construction Company v. Lejsal, 315 S.W.2d 177, 186 (Tex.Civ.App. writ ref. n. r. e.) ; Port Terminal Railroad Association v. Noland, 288 S.W.2d 276 (Tex.Civ.App. 1956, writ ref. n. r. e.).

Defendant complains of the admission in evidence of the driver’s record of James Jones. Defendant contends that the trial court erred in overruling and in not sustaining its motion in limine because the information contained in the driver’s record of James Jones was highly prejudicial and had no bearing on the circumstances of this particular accident. In many of defendant’s points of error, this contention is added to “no evidence” and “insufficient evidence” points. Plaintiffs pled that the truck driver was acting within the scope of his employment by defendant, Herrin Transportation Company, Inc., on the occasion in question, which collision resulted from the negligence and carelessness of the truck driver, which were the proximate causes of the damages and personal injuries to Mrs. Pursley and her infant son. Plaintiffs also alleged that such collision was proximately caused solely and entirely by the negligence of the corporate defendant and by virtue of its gross negligent entrustment of its truck to its employee for operation on the occasion in question, and by virtue of said employee’s gross negligent operation of such truck on the occasion of the occurrence made the basis of this suit, as a result of which gross negligence your plaintiffs are entitled to the recovery of exemplary damages in such amount as the jury deems and finds proper. Defendant’s answer contained a general denial, placing in issue the question of whether the truck driver was acting within the scope of his employment, gross negligence of the driver and gross negligent entrustment of the defendant. The driving record shows Jones began steady and continuous employment with Herrin Transportation Company, Inc. in 1951. In that year, he received a warning letter from the Department of Public Safety and had another motor vehicle accident. He had many moving violations, many of which he testified to. On the driving record, no material period of time elapsed without this truck driver violating moving traffic violations. In 1954, there was an affirmative finding that “he is a habitual violator of the traffic laws.” Then many moving violations occurred, and on March, 1961, his driver’s commercial operating license was suspended. In May of ’61, this suspension was lifted. These violations and suspensions on the part of the driver continued to occur almost to the date of the collision in question. Jones, the driver, testified that Herrin Transportation Company, Inc. knew his driving record while employed by such company. He testified he had received traffic tickets while operating Herrin’s vehicles. The trial court had indicated that certain items on the traffic record of the driver were inadmissible. Plaintiffs’ attorney then offered the driving record as follows:

MR. ALLEN: Subject to the appropriate exclusions, your Honor, we offer into evidence plaintiff’s exhibit number 1.
MR. EDWARDS: Your Honor, I don’t think there are any exclusions. It’s all in.
THE COURT: All right.
(The instrument marked for identification “plaintiff’s exhibit 1” was received in evidence.)

Thereafter, at the close of the trial, it was stipulated Jones was acting in the scope of his employment by Herrin at the time of the collision. Attorneys for defendant did not avail themselves of the opportunity to designate any particular item in the driving record deemed objectional, failed to request any instruction limiting its admissible purposes, failed to present any motion to strike any portion of the driving record. Defendant has waived any right to complain of any alleged inadmissible portions thereof on this appeal. In answer to Special Issue No. 19, the jury found that the entrustment of the truck by Herrin Transportation Company, Inc. to James Ervin Jones for operation by him did not constitute gross negligence. The jury’s findings on damages were reasonable. Admitting the driver’s record in evidence, if error, was harmless error. Each and all of defendant’s points of error are overruled.

The judgment of the trial court is affirmed.


author: TUNKS, Chief Justice.

text:
    Thomas Hart FISHER, Appellant, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Appellee.
    No. 65.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 31, 1968.
    Rehearing Denied Feb. 28, 1968.

      Robert L. Dabney, Jr., Austin & Dabney, Houston, for appellant.
    Frank G. Harmon, Thomas E. Berry, C. H. McCall, Thad T. Hutcheson, Jr., Baker, Botts, Shepherd & Coates, Houston, for appellee.
   TUNKS, Chief Justice.

This is an appeal from the order of the trial court dismissing the proceeding pending in that court which dismissal was occasioned by the appellant’s refusal and failure to respond to a commission to take his deposition and a subpoena duces tecum. The facts and procedure leading up to the order of dismissal were as follows:

On December 11, 1965, Alice B. Atwood, a resident of Chicago, Illinois, died. She left a will in which one Michael DeBella was named beneficiary and the appellee, Continental Illinois National Bank & Trust Company of Chicago, hereinafter sometimes called Continental Bank, was named executor.

On January 14, 1966, the Atwood will was filed for probate in Cook County, Illinois. On April 4, 1966, that will was admitted to probate, the Continental Bank qualified as executor of the estate.

On May 27, 1966, Edwin K. Atwood, brother of the deceased, Alice B. Atwood, filed application in the Probate Court of Harris County, Texas, for an ancillary Texas administration of the estate of said decedent. The application for ancillary administration filed in Harris County, Texas, was filed by a Houston attorney who was authorized to so act by the appellant, Thomas Hart Fisher, who in turn, in giving such authority, was acting as the attorney for Edwin K. Atwood.

The original application for ancillary administration filed in the Probate Court of Harris County, contained a recitation to the effect that Alice B. Atwood had died without leaving any “valid will.”

On June 28, 1966, the Probate Court of Harris County orally announced that the application for ancillary administration was granted and designated River Oaks Bank & Trust Company of Houston, Texas, as temporary administrator. On July 5, 1966, the order so appointing the River Oaks Bank & Trust Company as temporary administrator was signed by the judge of the Probate Court in Harris County, Texas.

On July 5, 1966, Continental Bank, without knowing of the fact that the temporary administration was pending in the Probate Court of Harris County, filed application in the County Court of Kennedy County for the probate of the will which Alice B. Atwood had left. On July 18, 1966, the County Court of Kennedy County admitted that will to probate. On July 27, 1966, Continental Bank qualified as executor under the will in the Kennedy County proceedings.

On November 9, 1966, Edwin K. Atwood wrote a letter to his Houston attorney requesting that he cause River Oaks Bank & Trust Company to withdraw as administrator of the estate of Alice B. Atwood in favor of Continental Bank.

On November 14, 1966, Thomas Hart Fisher filed in the Probate Court in Cook County, Illinois, a contest of the Alice B. Atwood will which had been admitted to probate in that court. Fisher’s contest was based on the ground that Alice B. Atwood did not have testamentary capacity at the time of executing the will which had been admitted to probate and his claim of interest in the estate was based on an earlier will executed by the decedent wherein he, Thomas Hart Fisher, was named beneficiary.

On or about December 1, 1966, Continental Bank and its attorneys apparently learned for the first time of the pendency of the administration proceeding in the Probate Court of Harris County. They, on that date, filed a proceeding in the Probate Court of Harris County, Texas, asking that Court to make a final determination of the proposition that venue in the estate properly lay in Kennedy County rather than in Harris County and for the transfer of the proceedings to Kennedy County and for the dismissal of the proceeding pending in the Harris County Probate Court.

On December 9, 1966, the Harris County Probate Court entered its order making a final determination to the effect that venue of the matter properly lay in Kennedy County and transferring the proceeding to the Probate Court of that County.

Though his participation in the proceeding up to that time had been in the capacity of an attorney acting as counsel for Edwin K. Atwood, on December 19, 1966, the appellant, Thomas Hart Fisher, entered the proceeding as a party. Fisher claimed to be a proper party because of his interest in the estate growing out of the earlier will wherein he was designated a beneficiary. As such an interested party, and as being aggrieved by the Probate Court’s order of December 9, 1966, determining venue to be in Kennedy County and transferring the matter to that County, Fisher perfected an appeal to the 113th District Court of Harris County, Texas. It was that case, concerned with Fisher’s appeal of the order of the Probate Court transferring the administration to Kennedy County, which was dismissed by the trial court for the reason and in accordance with the procedure hereinafter set forth, and which is the subject matter of this appeal.

On January 26, 1967, the Harris County Probate Court granted the motion of Continental Bank to remove River Oaks Bank & Trust Company as administrator and by the same order, appointed Continental Bank as temporary administrator, directing that River Oaks Bank & Trust Company pay over to it such funds, if any, of the estate which it had on hand. Thomas Hart Fisher, again alleging himself to be an aggrieved party, perfected an appeal from that order to the 127th District Court of Harris County, Texas. That case also was dismissed by the trial court and a separate appeal is pending in this court from that order of dismissal.

Still a third suit was instituted in the District Court of Harris County, Texas, involving the same parties and the same estate. That third suit was a mandamus proceeding filed in the 157th District Court of Harris County, Texas, by Thomas Hart Fisher, as petitioner, seeking a mandatory order requiring the judge of the Probate Court of Harris County, Texas, to vacate his orders of January 26, 1967, wherein he had determined that the Kennedy County Probate Court had venue of the estate which is the subject matter of this litigation and all other orders thereafter entered by the judge of the said Harris County Probate Court. That suit, too, was dismissed by the trial court and it, too, is the subject matter of another appeal pending in this court.

On February 28, 1967, the attorneys for the appellee, Continental Bank, filed application in the 157th District Court of Harris County, Texas, for commission to take the oral deposition of Thomas Hart Fisher, the plaintiff in the mandamus suit pending in that court, and, in such application, recited its intention to procure the issuance of a subpoena duces tecum to Fisher, requiring him to produce certain documents. The date and place for the taking of said deposition was recited to be at 10:00 o’clock a. m. on March 11, 1967, at the office of the Continental Bank’s attorneys in Houston, Texas.

On March 1, 1967, the attorneys for Continental Bank filed in the case pending in the 113th District Court of Harris County, Texas, a similar request for issuance of a commission to take the oral deposition of Fisher, and gave notice of the intention to request the issuance of a similar subpoena duces tecum and fixed the time and place of taking of the oral deposition as of the same date and place.

On March 16, 1967, Continental Bank’s attorneys filed in the case pending in the 127th District Court of Harris County, Texas, a similar request for the issuance of a commission to take Fisher’s deposition and notice of intention to request a subpoena duces tecum, fixing the date of the deposition at March 28, 1967, and the place at the office of the Continental Bank attorneys. The subpoenas duces tecum issued pursuant to the commissions requested on February 28th and March 1st, were served on the local counsel for Thomas Hart Fisher as authorized by Rule 202, Texas Rules of Civil • Procedure. On March 8, 1967, appellant’s attorneys filed a motion to quash the subpoenas, to order that the deposition of their client not be taken, or, in the alternative, that the deposition be taken by written interrogatories at the place of his residence in Florida. On March 9, 1967, the Honorable Ben Wilson, sitting as Judge Presiding over the Civil District Courts of Harris County, Texas, and as such authorized to rule on certain ancillary matters pending in any of the Civil District Courts of Harris County, overruled the appellant’s motion to quash, to order that the deposition not be taken or that the deposition be taken at the place of the appellant’s residence in Florida. On March 23, 1967, a similar motion was made by appellant attacking the commission and subpoena issued pursuant to the bank’s request on March 16, 1967.

The appellant failed to appear for the taking of the deposition set for March 11, 1967. On March 14, 1967, the appellee made' a motion to dismiss the cases in which the commissions for the taking of that deposition had been issued. That motion to dismiss was presented to the Honorable Wilmer Hunt, sitting as Presiding Judge on March 17, 1967. Pursuant to the hearing that followed, Judge Hunt entered an order to the effect that unless the appellant appeared on March 29, 1967, for the' giving of his deposition, and that unless he responded to the subpoena duces tecum theretofore served on his attorneys, all three of the cases then pending in the District Courts of Harris County, Texas concerning the estate of the decedent, Atwood, would be dismissed.

On March 20, 1967, the appellant, pursuant to Rule 167, T.R.C.P., filed a motion to require the appellee to produce certain documents and records. On the same date, appellant filed certain interrogatories pursuant to Rule 168, T.R.C.P. The appellant also filed a motion asking the court to direct the appellee to answer the interrogatories on or before March 28, 1967. That motion to require early answers to the interrogatories was presented to the Honorable Wilmer Hunt as Presiding Judge on March 23, 1967. On that occasion, Judge Hunt declined to grant the motion and made an announcement to the effect that if appellant did not appear for the taking of his oral deposition on March 29, 1967, he, Judge Hunt, would not rule on the motion of appellant to require early answers to the interrogatories and again announced that in the event of appellant’s failure to appear for the taking of his deposition at the designated time and place, he would dismiss all three of the cases then pending in the District Courts of Harris County, Texas.

On March 29, 1967, the appellant failed to appear at the time and place for the taking of his deposition. The certificate of the reporter recites such failure of appellant to appear, that his attorney did appear and that such attorney offered no other expía-nation of his client’s failure to appear than those set forth in the motion to quash. Thereafter, on March 30, 1967, Judge Hunt, sitting as Presiding Judge, and on motion of the appellee, entered his order dismissing this case as well as the other two cases pending in the District Courts of Harris County, Texas, between the same parties and involving the same estate. It is from the order dismissing this case that this appeal is perfected.

The basis "of the appellant’s objection to the subpoenas duces tecum issued and served on him and to the time, manner and place of taking his oral deposition, pursuant to such commission the various orders of the trial courts hereinabove noted, are set forth in appellant’s motion to quash the subpoenas duces tecum, to order that his deposition not be taken, or, in the alternative, that the subpoena duces tecum be limited in scope and that his deposition be taken by written interrogatories. In that motion he recites that he is a resident of Marion County, Florida, and that the appellee, in causing to be served on him the subpoenas duces tecum and undertaking to take his oral deposition in Houston, Texas, “is attempting to harrass and to visit undue annoyance and expense” on him. He further recites that the documents which are the subject matter of the subpoena duces tecum are privileged communications between the decedent, Alice B. Atwood, and him, when he was acting as attorney for said decedent.

The Texas Rules of Civil Procedure provide broad and liberal procedures by which litigants can make pre-trial discoveries in connection with pending law suits. Under Rule 167, a party may require his adversary to produce documents and other tangible things for examination and reproduction. Rule 168 makes provision whereby one party may propound to his adversary interrogatories to be answered under oath. Under Rule 169, an adverse party may be required either to admit the truth of certain facts and the, genuineness of documents or deny those matters under oath. Rules 186 through 215a make provisions for the taking of depositions of witnesses. This procedure has a two-fold purpose: it may be used to develop evidence to be used in the trial, it also may be, and often is, used as a pre-trial procedure by which to develop the facts relating to a claim or defense in a pending trial.

Consistent with a policy of those rules, the courts encourage a liberal use of pre-trial discovery procedures. Lucas v. Lucas, Tex.Civ.App., 365 S.W.2d 372, no writ history. However, the rules make provisions for the protection of parties and other witnesses against an abuse of the uses of the means of pre-trial discovery. Rule 177a provides that one may seek from the court protection against an unreasonable and oppressive use of a subpoena duces tecum. Rule 186a provides that on motion made to the court, the scope of examination of the witness on oral examination or written interrogatories may be limited. Rule 186b provides for other types of orders which may, on motion to the trial court, be entered for the protection of parties and deponents.

On the other hand, the rules also make provision for enforcement of the pre-trial discovery procedures and provide penalties to be assessed for failure or refusal to comply with those procedures. Under Rule 169, if a party fails or refuses to respond to a request for admission, the matters of which an admission was requested, may be deemed admitted. Rule 170 makes provision for penalties that may be assessed because of a party’s refusal to comply with a discovery order under Rule 167. That rule also provides that if a party, in response to requests served under Rule 169, denies the genuineness of a document or the truth of a matter of fact, and such document is subsequently shown to be genuine or the truth of fact is developed, then the court may assess against the wrong-doing party which was the subject matter of such pre-trial procedure. Rule 215a, originally adopted in 1957 and amended in 1962, sets forth the penalties that may he imposed on witnesses and parties for failure and refusal to respond to commissions to take depositions and the subpoenas issued pursuant thereto. Among other things, that rule provides that if a party to a law suit, without good cause shown, fails to appear for the taking of his deposition after proper service of subpoena, the court may “dismiss the action or proceeding or any part thereof.”

By the very nature of things, motions for the protections of parties and witnesses and to impose penalties for failure or refusal to comply with discovery orders, must be addressed to the sound discretion of the trial court. The rules as to the taking of depositions vest broad discretion in the trial court. Munden v. Chambless, Tex.Civ.App., 315 S.W.2d 355, err. ref., n. r. e. The refusal of a trial court to stay the taking of a deposition may be set aside only upon a showing of a clear abuse of discretion. Meyer v. Tunks, (Tex.Sup.Ct.), 360 S.W.2d 518; Guerra v. Pena, Tex.Civ.App., 406 S.W.2d 769, no writ history; Harris County v. Hunt, Tex.Civ.App., 388 S.W.2d 459, no writ history. Before the adoption of Rule 215a in 1957, the provisions for penalties to be imposed on parties for refusal to respond to a commission and subpoena for the taking of his deposition, were found in Rule 202. In Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, decided by the Supreme Court of Texas in 1953, there is a discussion of the trial court’s discretion .in imposing those penalties. In that case, it was held that the trial court had abused its discretion in rendering default judgment against a defendant who refused to respond to a commission for the taking of his deposition because the rule did not then provide for such penalty (Rule 215a as it now stands does provide for such penalty to be assessed against a non-complying defendant). Nevertheless, the court’s opinion in Knox v. Long clearly indicates that the trial court has broad discretion in making application of those penalties which are provided for in the rules. Dow Chemical Co. v. Benton, 163 Tex. 477, 357 S.W. 565, involves a situation wherein the trial court, pursuant to Rule 215a of the Texas Rules of Civil Procedure, had dismissed the plaintiff’s cause of action because of his refusal to appear for his deposition. Though the question of the trial court’s authority to so dismiss the case was not the principal issue involved, nevertheless the Supreme Court treated the situation as if the case had properly been dismissed.

With those policies and holdings in mind, we now examine the facts in this case upon which the trial court based its order of dismissal.

The only facts shown by the appellant as good cause for his failure to appear, were his recitation in his motion to quash subpoena duces tecum to the effect that he was a resident of Florida, that the documents subpoenaed were bulky and that they were privileged communications between him and his former client, the decedent, Alice B. Atwood.

The fact of his residence in the State of Florida was no good cause for his failure to appear and permit his deposition to be taken. He had selected the jurisdiction of the Probate Court of Harris County, Texas, for the .institution of the proceeding and having done so, and having become a party to that proceeding, obliged himself to submit to the jurisdiction and procedures of the courts of Texas. The record indicates that this is an extremely large estate, that the holdings of the decedent were widespread and of a complex nature, that the pendency of the actions instituted and prosecuted by the appellant was seriously impeding the administration of the affairs of that estate and that but for a speedy determination of those proceedings, serious damage would be sustained by the estate. Those were matters which the trial court was amply justified in taking into consideration in making its rulings. As compared to the amount involved in the litigation, neither the expense nor the inconvenience incurred by appellant in traveling from Florida to Texas, if he was required to do so, in order to respond to the commission to take his deposition, would have been disproportionate.

The appellant states in very general terms only that the documents sought to be produced by the subpoenas duces tecum were bulky. No specific facts are recited by him in his motion to quash the subpoena, nor do any such facts appear at any other place in the record before us. Such general statement'by the appellant in a case of the character pending in the District Court, was not sufficient to constitute good cause for appellant’s failure to appear and give his deposition.

Appellant’s opposition to the taking of the deposition because of the fact that documents sought to be produced were privileged communications between him and his former client, the decedent, Alice B. Atwood, is, of course, entirely untenable. If any such privilege were attached to the communications, it was a privilege of the client, not the attorney. It was certainly not such a privilege as would preclude the disclosure of the communications in a proceeding wherein the alleged attorney was a party asserting a claim to his former client’s estate. Krumb v. Porter, Tex.Civ.App., 152 S.W.2d 495, err. ref.; McCormick & Ray, Texas Law of Evidence, p. 409, Sec. 487.

We are also of the opinion that there is ample basis in the record on which the trial court could have questioned the bona fides of the appellant in maintaining this suit. As this litigation originated in the Probate Court, the appellant was in the status of an attorney representing the applicant for administration. In the original application for administration there was a recitation, as the basis for the granting of such application, to the effect that “no valid will” was left by the decedent. It was only after the appellant had been discharged by his client, the original applicant for the administration, that he appeared in this litigation as a party. In doing so, he claimed that his interest in the estate grew out of a valid will, a position inconsistent with that which his client had originally taken and a position which, if established, would show an interest in the appellant adverse to the interest of his former client.

It is further to be remembered that the trial court’s order of dismissal of the litigation pending in Harris County did not deprive the appellant of a forum in which to assert his claim. There had been instituted and is still pending in the County Court of Kennedy County, a proceeding involving this estate. The appellant, by intervening in that proceeding, could easily avail himself of a forum in which to assert his claim.

Under the circumstances here prevailing and on the authority of those cases cited above, we hold that the trial court did not abuse its discretion in dismissing this case.

The judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    S. C. BROWN et al., Appellants, v. William A. SELTZER, Appellee.
    No. 15224.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 15, 1968.
    Rehearing Denied March 7, 1968.

      McNicholas & Crawford, Walter J. Crawford, Jr., Beaumont, for appellants.
    Orgain, Bell & Tucker, Beaumont, for appellee; John G. Tucker, Gilbert I. Low, Beaumont, of counsel.
   COLEMAN, Justice.

This is a suit for damages brought by appellants, the mother and father of one Troy Brown, who was killed when the automobile in which he was a passenger collided with a highway signpost.

Appellants contend that the trial court erred in the manner by which the requirements of the Texas Guest Statute (Article 6701b, Vernon’s Ann.Tex.Civ.St.) were submitted to the jury, and also in applying the substantive law of Texas (Article 6701b, V.A.T.S.) since the State of New York had the most “significant" contacts” with the transaction and parties involved in the occurrence made the basis of this suit.

On or about July 28, 1965, appellee, accompanied by Troy S. Brown and Jay Kalotkin, was traveling in an automobile, owned by appellee’s mother, on Interstate Highway No. 10 in Chambers County, Texas. Appellee was driving the automobile. As he was attempting to pass an automobile in front of him, he applied his brakes and his car skidded sideways into a signpost adjacent to the right hand lane of the highway. The collision cut the car in half. Appellee was thrown from the car and was not injured. Both Brown and Ka-lotkin were killed.

Seltzer and Kalotkin were domiciliaries of the State of New York, as was the owner of the car. Brown was a resident of California, and had been attending college in that State. Some months previously he had sold his car and had used the proceeds to make an ^extended trip to Europe. On May 1, 1965, he returned to New York, and secured work in a lodge in upstate New York in order to get enough money to return to California. About two weeks before the date of the collision he met Kalotkin and Seltzer.

The only information concerning the trip and the plans preceding it necessarily comes from the testimony of Seltzer. He testified that the. trip to Mexico came up after he met Brown. In describing the plan he said: “Well, our destination was Mexico. We were going to sightsee, you know, spend some time at the beach, travel around Mexico a little bit. Nothing specific. We planned, you know, day by day, what you call it.”

They had decided that they would like to see Acapulco and Mexico City, but they had not decided just where they would go first and all details were subject to change. They had not worked out the route for the trip. Seltzer furnished the car, but all three boys shared the expense for gasoline and oil. Each boy would pay for his own food and lodging. Brown planned to fly from Mexico to California and the other boys were going to take a leisurely sightseeing trip back through the United States to New York. There was testimony that Brown’s family expected him to reach California around the 25th of July.

After they began the trip, each boy alternated between driving, sleeping, and navigating, that is, reading the road maps, watching for road signs, and talking to the driver. Prior to the collision they had been on the road about 36 hours. They had made a number of stops for gasoline, food and coffee. They had stopped in Beaumont, Texas, for several hours to visit a relative of Kalotkin a short time before the collision.

Appellee testified that he would not have made the trip if he had not found these boys to share the expense and driving, and that each boy had an equal “say” as to the route to be followed. He agreed that “everyone carried his equal load as far as the driving and control of the car.” There was testimony that Brown had in his wallet a voucher for a refund on an airline ticket from New York to San Francisco, which he had returned, and a ticket “that had an open date on it to fly from Mexico City to San Francisco.”

Appellants contend that the substantive law of New York should have been followed by the trial court because New York is the state having the most significant total relationship with this trip. The doctrine of most significant contacts holds that the most significant relationship with the occurrence, and with the parties, should determine the rights and liabilities of the parties. This is clearly contrary to the general rule followed in Texas that the courts look to the law of the place where the wrongful act or neglect took place. Marmon v. Mustang Aviation, Inc., 416 S.W.2d 58 (Tex.Civ.App., Austin 1967, writ granted).

In the case above cited Justice O’Quinn carefully reviewed the applicable authority and found much merit in the doctrine under consideration. We are in full agreement with this carefully considered opinion and can add nothing to it by again discussing the authorities. We do not consider that this Court is free to repudiate pri- or decisions of the Supreme Court of Texas despite the fact that it has granted a writ of error in the case cited. In view of this fact, however, it is appropriate to consider facts which distinguish this case from Marmon v. Mustang Aviation, Inc., supra.

Troy Brown was a resident of California, and appellants are also residents of California. The defendant is a resident of New York. Art. 4678, V.A.T.S., is not applicable to this case. Appellants choose to bring this suit in Texas under the Texas wrongful death statute (Art. 4671, V.A.T.S.). The public policy of Texas with reference to actions by guests has been declared by the legislature in the enactment of Art. 6701b, V.A.T.S., generally known as the “guest statute”. This statute requires a finding of gross negligence for a recovery in such an action. In the decisions applying the significant contacts doctrine, to which we have been cited, the court was applying the public policy of its state by invoking the law of the forum in preference to the lex loci delicti, which was contrary to its public policy. Macey v. Rozbicki, 18 N.Y.2d 289, 221 N.E.2d 380 (1966); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279 (1963).

We recognize that public policy of the state of Texas should not be the prime consideration in determining whether or not the guest statute of this State should be enforced in the event an action is brought in this State to enforce a right of action which accrued under the laws of another state. We cannot say that to enforce a cause of action by a guest against his host based on simple negligence would be against good morals or natural justice, or that for some other such reason the enforcement of such a cause of action would in all such cases be prejudicial to the general interests of our own citizens. State of California v. Copus, 309 S.W.2d 227 (Tex.Sup.1958); McElreath v. McElreath, 345 S.W.2d 722 (Tex.Sup.1961).

In this case, however, the cause of action accrued in Texas and the suit has been filed in the courts of Texas. The state of the forum is applying its own law to a cause of action arising within the State. No conflict of laws problem appears. We find no sound reason for ignoring the public policy of the State as determined by the legislature of this State. Kell v. Henderson, 26 A.D.2d 595, 270 N.Y.S.2d 552 (S.Ct., Appellate Div., 3rd Dept., N.Y.1966).

The remaining points of error concern the manner in which issues relating to the Texas guest statute were submitted to the jury.

The burden of proof was on appellants to prove all elements of their case. Estate of Coggins v. Livingston, 411 S.W.2d 646 (Tex.Civ.App., Beaumont 1967, n. iv. h.). As an element of a passenger case when he sjies the driver of an automobile, he must show that he was not a guest as contemplated by the guest statute, or that the driver was guilty of gross negligence. Euller v. Wainwright, 415 S.W.2d 234 (Tex.Civ.App., El Paso 1967, n. w. h.). Issues were submitted to the jury in answer to which the jury found that Troy Brown was a guest. Appellants did not plead gross negligence, or request issues on that theory of recovery. Appellants did object to the definition of the word “guest” given in connection with the issue submitted, and also requested the submission of certain issues which they suggest would negative the relationship of host and guest. These issues were refused.

There is evidence that the parties to the trip had agreed to share expenses and to-share the driving of the automobile. The first Texas case to determine whether or not an agreement to share operating expenses is sufficient to take the case out of the purview of the guest statute was Raub v. Rowe, 119 S.W.2d 190 (Tex.Civ.App., El Paso 1938, error refused). In holding that the sharing of expenses did not take the passenger out of the operation of the guest statute, the' court quoted with approval an excerpt from the opinion of the Supreme Court of California in McCann v. Hoffman, Cal.App., 62 P.2d 401; id. 9 Cal.2d 279, 70 P.2d 909, including the following:

“Therefore, where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. But it is not given where the main purpose of the trip is the joint pleasure of the participants. The payment of a portion of the expense, as for gasoline and oil consumed on the trip, is merely incidental and does not constitute the moving influence for the transportation. The provocation for the offer of transportation remains the joint social one of reciprocal hospitality or pleasure.”

The Supreme Court of Texas has expressly approved the statement that to remove a case from the provisions of the guest act, a definite relationship must be established and a definite tangible benefit to the operator shown to have been the motivating influence for furnishing the transportation. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (Tex.Sup.1952).

This Court, in affirming a summary judgment for the defendant in the case of Dietrich v. F. R. Young Company, 400 S.W.2d 572 (Tex.Civ.App., Houston 1966, writ ref., n. r. e.), stated:

“In the present case the undisputed testimony shows that the motivating cause of the trip, and certainly the main purpose, was mutual pleasure not connected in any way with any business transaction. No definite tangible benefit to Jackson was shown to have been the motivating influence for furnishing the transportation.”

The importance to be attached to the purpose of the trip, and to the motivating influence for furnishing the transportation is illustrated by Burnett v. Howell, 294 S.W.2d 410 (Tex.Civ.App., El Paso 1956, writ ref., n. r. e.). There the court, in speaking of Raub v. Rowe, supra, said:

“That case holds and we concede it to be well settled law, that when one is invited to ride with the owner on a trip for their mutual pleasure that the payment for the gas and oil or a portion thereof even though by prior agreement, is merely an exchange of courtesies, and that such would not constitute payment for transportation under the meaning of said Article 6701b. In the case of Raub v. Rowe, supra, the moving and prime cause of the trip to be taken was a mutual desire of the parties to visit a relative. The payment by the rider of a portion of the automobile expense was merely incidental.”

The court went on to point out that in the case under consideration the owner desired to go to Andrews, Texas, tj see a friend, but could not go because he had no gasoline. The plaintiff offered to buy him a tank of gas if he would carry plaintiff to Andrews and bring him back. The plaintiff was interested in transacting business, and was not interested in visiting the owner’s friend. The court said: “The tangible benefit to appellee was the tank of gas, which was the motivating influence for ap-pellee to furnish appellant the transportation, not joint social purpose or reciprocal hospitality.”

In this case, in addition to the agreement to share expenses, we have an agreement to share the burden of driving, and testimony as to a certain measure of joint control. There is also the fact that Brown was going to California in any event, and that Seltzer could not have made the trip had he not found others to share the expense.

Under the same circumstances, sharing the driving on a trip would constitute reciprocal hospitality just as does sharing the incidental expense.

We agree with appellants’ contention that where there is a joint interest in the object and purpose of the enterprise, the primary purpose of the trip is not a social one, and there is an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance, then the existence of joint enterprise may render the provisions of the guest statute inapplicable in a suit by a passenger against the operator of the automobile. El Paso Electric Co. v. Leeper, 60 S.W.2d 187 (Tex.Com.App.1933); Johnson v. Smither, 116 S.W.2d 812 (Tex.Civ.App., Ft. Worth 1938, error dism.).

We have concluded, however, that there was no evidence that the primary purpose of the trip was other than social. While the testimony of Seltzer that such was the primary purpose is not binding on appellants, there is no competent evidence to support a contrary finding. Troy Brown had planned to return to California from New York by plane. He changed this plan and delayed his return by joining in the trip to Mexico. He was to leave his companions and go to San Francisco, California, by plane from Mexico City. In view of the adoption of this longer, more time consuming route, the fact that the trip was to constitute a part of Brown’s journey home would not be evidence that the primary purpose of the trip was other than social.

There is no evidence of the cost of transportation by plane from Mexico City to San Francisco, or from New York to San Francisco. There is no evidence of the probable cost of the gasoline, oil, food, or lodging required during the motor trip from New York to Mexico City. There is no evidence for comparative purposes of the cost of transportation by train or motor bus from New York to San Francisco. In the absence of some such evidence, there is no evidence of probative force from which the jury could infer that Troy Brown would save money by traveling with appellee. The only reasonable inference that can be drawn from the evidence is that the primary purpose of the trip was social in nature. There is no evidence, therefore, to raise an issue of fact of a special tangible benefit to appellee, and there is no evidence to raise an issue of fact of joint enterprise between appellee and Troy Brown.

Considering only that evidence favorable to appellants, we find that Brown was a guest within the meaning of the Texas Guest Statute. Since an instructed verdict for the appellee would have been proper, any error in the court's charge was harmless error. Thweatt v. Ocean Accident & Guarantee Corporation, 62 S.W.2d 250 (Tex.Civ.App., El Paso 1933, err. ref.) ; American Nat. Bank of Austin, Texas v. Sheppard, 175 S.W.2d 626 (Tex.Civ.App., Austin 1943, err. ref.); Bassmer v. Kotulek, 75 S.W.2d 295 (Tex.Civ.App., Eastland 1934).

The judgment of the Trial Court is affirmed.