author: O’QUINN, Justice.

text:
    Dixie HAMILTON et al., Appellants, v. Billie B. FANT et al., Appellees.
    No. 11548.
    Court of Civil Appeals of Texas. Austin.
    Dec. 20, 1967.

      Harris & Holbrook, Killeen, Mitchell, Gilbert & McLean, Arthur Mitchell, Austin, for appellants.
    C. Gordon Metcalf, Temple, for appel-lees.
   O’QUINN, Justice.

This lawsuit was filed to recover for damages to seven acres of land in the Keys Valley area in Bell County caused by cedar choppers who cut and carried away about 900 choice cedar trees growing on the property.

The landowners were awarded judgment, based on favorable findings of a jury, in the amount of $3,500, being the difference the jury found between the market value of the land before and after the trees were cut down.

The defendants below were not the cedar choppers, but were two landowners whose property abutted the seven acres who, the jury found, negligently allowed the cedar cutters, while working on defendants’ land, to get over by mistake on the tract belonging to plaintiffs.

Defendants have appealed and assign ten points of error. We overrule all points of error and affirm the judgment of the trial court.

Billie B. Fant in 1963 owned more than 200 acres of land, some of which would front on the proposed Stillhouse Hollow Lake to be created by a dam on the Lam-pasas River. Fant sold all but about 15 acres to Dr. Dixie Hamilton and Dee De-Onofrio, both of Killeen, who were defendants in district court. The 15 acres Fant retained were divided into three five-acre tracts, two of which Fant transferred to his sisters, Fannie Mae Hurst and Margaret Concillo, who, with Fant, became plaintiffs below.

Sometime in May, 1964, Appellants De-Onofrio and Hamilton contracted with one James Jasper Pierce, a cedar cutter by trade, to cut cedar from their land on the shares. Appellants were to receive one-fourth of the yard price when the cedar was cut and sold. Pierce hired several other skilled cedar cutters to help him, and the workmen furnished their own tools and equipment.

After cutting cedar for some time on appellants’ tract, the cutters reached a creek that Pierce testified was hard to cross with loads. It was then that De-Onofrio gave Pierce directions for reaching the other side of the creek by a gate through which he could haul the cedar cut from land on the opposite side of the creek. Pierce went through the wrong gate, entered the Fant property, and cut seven acres of cedar on the Fant land before Fant discovered the cutters and stopped their work.

The jury found, in answer to special issues, that appellants failed to instruct Pierce and the other cutters as to the location of the boundary line between appellants’ property and the Fant property. The jury found this failure to be negligence and a proximate cause of the damages sustained by the Fants. The jury also found that appellants instructed Pierce to enter upon the Fant property, that this was negligence, and was a proximate cause of the damages.

The jury found that the Fant seven acres had a reasonable market value of $700 an acre immediately before the trees were cut down and a reasonable market value of $200 an acre immediately after the trees were cut. As already noted, upon these findings the trial court entered judgment for appellees in the sum of $3,500.

Appellants seek to reverse the trial court on four propositions under their ten points of error. The first contention, under point one, is that the trial court used an incorrect measure of damages in submitting issues to the jury. Appellants insist that the proper measure of damages in this case is the value of the timber cut and not the reduction in market value of the land itself.

It is undisputed that the property owned by Billie B. Fant and his sisters is “lake front property” overlooking the water of Stillhouse Hollow Lake. William L. Bremser testified that he had owned property around Stillhouse Hollow since 1951, having subdivided and sold lots from his land, and was familiar with the Fant land and with property values in the area. It was his opinion that the highest and best use for the Fant property was for subdivision, private residences, and lake cottages. He testified that “when you take a tree off of anything and you are going to subdivide it, it would decrease the value.”

Bremser testified that “prior to the cutting of the trees, as rough acreage, this [Fant] land would be worth about seven hundred dollars an acre, and after cutting the trees * * * at the outside, at the most, two hundred dollars” an acre. Fant testified that he had intended using the land for subdivision purposes and had engaged an engineer to survey and lay out the property in lots prior to the cedar cutting. His testimony was that cutting the cedar had diminished the land value $500 per acre. DeOnofrio himself testified that since the cedar had been cut from appellants’ adjoining tract, he and Dr. Hamilton had had their land on the market for $200 an acre but at the time of trial still could not “find any takers.”

It was shown at the trial without contradiction that the cedar choppers “cut down the big choice trees * * * and left all the scrub brush, and * * * topped all those that were big trees.” Some of the choice trees were twenty inches in diameter, and “some 900 trees” were removed from the seven acres. The cutters left the Fant land as “cedar-lapped brush all through” with “stumps and brush and scrub trees * * * and tops of trees.” Fant estimated it would cost $300 to $400 just to remove the debris. Fant testified that appellants did not pay him “a share of what they got from the cedar posts.”

We believe that under the facts of this case the trial court applied the correct measure of damages in charging the jury to find in effect the diminution in value of the land.

It is proper to consider the use to which the land is adapted in determining the value of the land and the damage sustained. Whitehead v. Zeiller, 265 S.W.2d 689 (Tex.Civ.App., Fort Worth, no writ). The principle upon which compensation is awarded for damage to real property is that the owner should be reimbursed to the extent of the injury to the property. Whitehead case, 265 S.W.2d 689, 691, col. 2.

The Supreme Court of Texas in 1956 stated the rule that if the trees have only a value with reference to the land, such as for shade or ornamentation, the proper measure of damages is the difference in the value of the land before and after the trees are destroyed or removed. Cummer-Graham Co. v. Maddox, 155 Tex. 284, 285 S.W.2d 932.

While the cedar trees may be presumed to have some value as posts, although there is no evidence in the record as to what this value might be, their essential importance to the land for shade and ornamentation would certainly appear to be their real value. Removal of trees from lakefront property, already cut into small tracts and subject to further subdivision into residential lots, even though the timber removed is sold for posts or firewood, is not the same as cutting trees from land adapted to stock-raising or to growing timber crops. We think the proof was sufficient that the trees cut down on the Fant property had such value with reference to the land that their value as posts in comparison was too insubstantial to take this case out of the rule of Cummer-Graham Co. v. Maddox, supra.

In Lucas v. Morrison, 286 S.W.2d 190 (Tex.Civ.App., San Antonio, no writ), the Court approved an exception to the general rule of measure of damages with regard to destruction of trees. The Court allowed the owner to recover the intrinsic value of shade trees, although the value of the shade trees in proportion to value of the entire farm was of such insignificance as not to affect the market value of the farm. The converse of these facts are found in the case at bar. While it may be presumed the cedars cut down had some timber or detached value, to hold appellees’ recovery to this value, and deny recovery for the real and substantial injury to the land for its highest and best use, would be to refuse reimbursement to the extent of the injury to the property. For application by this Court of the rule of Cummer-Graham Co. v. Maddox, supra, in another case involving removal of shade trees, see Southwestern Bell Telephone Co. v. Willie, 329 S.W.2d 466 (Tex.Civ.App., Austin, writ dsmd.).

Appellants made no objection to the testimony of Bremser or to that of Fant as to value of the Fant land before and after the timber had been cut. Nor did appellants object to the trial court’s charge submitting the issues by which the jury found the land values before and after the trees were destroyed. Complaint is made for the first time on appeal that the trial court applied an incorrect measure of damages. Appellants have waived any objections to the court’s charge on the ground of a wrong measure of damages. The point of error now urged that the court’s charge permitted the jury to find damages based on an incorrect measure may not be sustained and must be overruled. Howell v. Bowden, 368 S.W.2d 842 (Tex.Civ.App., Dallas, writ ref., n. r. e.); Rule 274, Texas Rules of Civil Procedure.

Under points of error two, three, and four appellants contend that there was no evidence and insufficient evidence to support the findings of the jury as to value of the land before and after the cedar was cut, and that the findings were contrary to the overwhelming weight of the evidence. Under these points appellants argue that the jury’s' response to the special issues was speculative, being based upon market value of subdivided lake property.

We find no testimony that the Fant property had been subdivided into lakefront lots. Fant testified that he had employed an engineer to make the necessary survey and plat to effect subdivision, but said the work had not been performed. The jury was not asked to arrive at value of the land as a subdivision. Bremser simply testified that the highest and best use of the land was for subdivision purposes. The value Bremser put on the land was “as rough acreage” before and after the cutting. Fant testified the land was owned by him and his sisters in five-acre tracts. We consider there was sufficient evidence as to the value of the land as acreage, best adapted to subdivision purposes, to support the jury’s findings of value. We are unable to agree that the jury’s response could be denominated speculative, in view of the evidence adduced and the issues submitted as to value.

For these and the additional reasons already stated, we overrule these points of error.

By points of error five, six, and seven appellants contend there was no evidence and insufficient evidence to support the findings of proximate cause in connection with instruction appellants gave and failed to give to Pierce. Appellants also assert that the overwhelming weight of the evidence was against the findings of proximate cause.

The basis for these contentions is that it was not foreseeable that damages would result from the failure to instruct Pierce as to boundary of the property and to instruct him to enter the Fant property.

The evidence shows that after Fant sold the major portion of his land, known then as the Circle C ranch, the parties did not erect a fence between the tract sold to appellants and the part retained by Fant. A creek separated the tracts along a part of the boundary, but there were several creeks. Fant furnished appellants a set of field notes and a map after a survey of the two tracts was made. DeOnofrio testified he was uncertain about the exact extent of his land.

It was clear from the testimony of Pierce that he was a person who might become confused. He had told DeOnofrio he was familiar with the Circle C ranch as he had known it under an earlier ownership.

After DeOnofrio made known to Fant that he was considering a cedar cutting contract with Pierce, Fant advised De-Onofrio that he did not want cedar cutters to “cross the creek over on” the Fant property. Fant told DeOnofrio that he did not want “a cedar cutter on [his] * * * piece of property.” DeOnofrio informed Fant of the cedar cutting plans because Fant held a deed of trust on the acreage he had sold to appellants. Fant consented to cedar cutting on appellants’ land, but observed to DeOnofrio that he could have had the cedar cut during the seven years he owned the entire ranch if he had not “thought it would ruin it as lake property.”

When Pierce finished the first part of the cutting, which was entirely on appellants’ land, the creek, as we have already noted, presented an obstacle to moving truck loads of cedar to be cut elsewhere on appellants’ property. DeOnofrio gave Pierce instructions for approaching the property along a road on the opposite side of the creek. There was a conflict in the evidence as to whether DeOnofrio told Pierce to go through a wire “gap” or a wire “gate” to reach the other side of appellants’ tract.

But it is clear that neither DeOnofrio nor Dr. Hamilton went on the premises to point out to Pierce the boundaries of their land and to identify land marks, gates, and creeks, or to indicate on the ground the areas in which Pierce and his cutters were authorized to work. It is undisputed that all instructions given Pierce by appellants were away from the land, usually at DeOnofrio’s place of business in Killeen. The instructions to Pierce were oral, and there is no testimony Pierce was shown the map Fant had furnished appellants showing the boundaries. Pierce testified DeOnofrio told him to use a wire “gap” and then “cut back toward the house” which was on appellants’ land. By entering the wire “gap,” which was half a mile down the road from a wire “gate,” Pierce entered the Fant property instead of appellants’ land and started cutting in the direction of the house. It appears that if Pierce had entered the wire “gate,” he would have been properly on appellants’ land. Appellants did not know that Pierce was cutting cedar on the wrong tract until Fant discovered the cutters, stopped their work, and notified DeOnofrio he expected reimbursement for damages.

Appellants filed written objections to the court’s charge submitting the issues of proximate cause. The objections complained that there was no evidence, insufficient evidence, and no probative evidence to warrant submission, and that submission of the issues was against the preponderance of the evidence and constituted comment on the weight of the evidence.

Appellants on appeal complain that it was not foreseeable that the damages would result from appellants’ instructions to Pierce. The court submitted a correct definition of proximate cause in which the jury was instructed in part that, “To be a proximate cause of an event it should be such a cause as that it could have been reasonably anticipated and foreseen by a person of ordinary prudence in the exercise of ordinary care that the event or some similar event would occur as a natural and probable consequence.” No objection was made to the definition submitted.

Fant warned DeOnofrio that he did not want the cutters to get across the creek and did not want them to come on his land. DeOnofrio knew that Fant considered the cedars valuable to the land as lake property. If Pierce’s testimony as found in the record is a fair example of his want of capacity for complete understanding, and we have no reason to believe otherwise, then appellants as persons of ordinary prudence in the exercise of ordinary care could have reasonably foreseen that oral instructions such as were given, as a natural and probable consequence, would be the cause of Pierce cutting cedar on the wrong property.

We believe the evidence adequately supports the finding of the jury that the failure of appellants to instruct Pierce as to the boundary, and their instruction to Pierce to enter the Fant property, was in each instance a proximate cause of the damages sustained.

In response to special issue No. 9, the jury replied in the negative to the inquiry as to whether Pierce “was acting as an independent contractor at the time of the cedar cutting involved in this case.” Under points eight, nine, and ten appellants urge that there was no evidence and insufficient evidence to support this finding, and that the finding was contrary to the overwhelming weight of the evidence.

This issue was requested by appellants. The burden of proof was on appellants in the trial court to show by a preponderance of the evidence that Pierce acted as an independent contractor. The jury obviously concluded that appellants failed to meet the burden of this proof.

The evidence shows that Pierce made the working arrangement with DeOnofrio and then engaged other cutters to participate in the work. The cutters worked by their own hours, hauled the posts to the cedar yard, sold them, collected the money, and then paid one-fourth, based on records supplied by the yard, to appellants. The cutters furnished the tools and equipment used in the work. DeOnofrio controlled where the cutting would be done. At the outset DeOnofrio told Pierce not to go beyond the creek. When asked at the trial why he thought DeOnofrio did not want him to go across the creek, Pierce replied, “Well, we had to stand up to standards when we cut it; like, if we go out to cut the timber, paying a guy a fourth, and if we don’t cut all the posts like he wants it done, then he can tell us to get out.”

Appellants made no objection to the definition of independent contractor submitted by the court with the issue and did not object to submission of the issue in the form employed by the court. The record does not disclose that appellants moved for instructed verdict at the conclusion of the evidence, nor did they file motion for judgment notwithstanding the verdict. Appellants contend on appeal that “the undisputed evidence in this case demonstrates that an employer-independent contractor relationship resulted from the work agreement.”

Appellees alleged as a basis for their suit a theory of primary liability on the part of appellants for their negligence. There was no allegation and no contention that appellants’ liability was of a vicarious nature in connection with the negligence of Pierce. The theory of appellees’ case embraces the contention that the landowner has a duty to give proper instructions even to an independent contractor for work done on the owner’s property.

In this case we think it clear from the record that appellants reserved the right to direct the work of the cedar cutters to the extent that the workers were told where to cut and how to reach areas in which additional cutting was to be done. Pierce testified, as we have noted, that he understood appellants could tell him to get out if Pierce did not “cut all the posts like [appellants wanted] * * * it done.” We believe that with appellants retaining the controls indicated, Pierce did not become an independent contractor, and the jury had sufficient evidence so to find. Whether the right retained by appellants is designated a control or an interference, we feel it prevented Pierce from becoming independent in the sense that appellants were relieved of responsibility. Appellants were properly held liable for injuries naturally flowing from such control or interference. 27 Am.Jur., Independent Contractors, sec. 31, p. 510; 30 Tex.Jur.2d, Independent Contractors, sec. 31, p. 520.

The judgment of the district court is affirmed.

Affirmed.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    Mary Ellen COAKLEY, Appellant, v. F. M. REISING et al., Appellees. Mary Ellen COAKLEY, Appellant, v. Sarah H. CONKLIN et al., Appellees.
    Nos. 268, 269.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1967.
    Rehearing Denied Dee. 28, 1967.

      Orrin W. Johnson, Harlingen, for appellant.
    Neal King, of Hill, King & McKeithan, Mission, for appellees.
   OPINION

SHARPE, Justice.

Mary Ellen Coakley, appellant here and plaintiff below, in 1947 filed two trespass to try title suits against appellees, defendants below, involving lands situated in Hidalgo County, Texas. The cases were by agreement tried together on title issues only, with a separate judgment of dismissal being entered in each case. The cases were consolidated in this court for the purposes of briefing and argument.

At the conclusion of the evidence upon motion of appellees the trial court dismissed both cases. The ground of appellees’ motion was that the suits were brought and maintained by appellant in the wrong capacity, that is, in her individual capacity rather than in her capacity as the adminis-tratrix of the Estate of J. M. Collins, deceased. After granting the motions to dismiss and discharging* the jury, the trial court thereafter denied appellant’s motions to re-instate, to allow trial amendments, to allow introduction of further evidence, and her motions for judgments.

We have concluded that the orders of dismissal were proper and that the judgments of the trial court should be affirmed.

Appellant asserts seven points of error which appellees answer by eight counterpoints. We will first consider appellant’s point one along with appellees’ first counterpoint, reading as follows:

“POINT ONE
“The Court erred in concluding that plaintiff, who stood in the position of sole heir to Collins’ estate, who had been its principal creditor and was in reality the only person interested in recovery of these lands from defendants, could not prosecute her suits when there were no debts due at trial time by Collins’ estate and the lands were threatened by loss through limitations if her causes were dismissed.”
“FIRST COUNTERPOINT
“The order of dismissal was correct because
(1) The administration of the estate of J. M. Collins was open as a matter of law;
(2) No estate tax return had been filed or release obtained so the plaintiff is not entitled to claim the estate in any but a representative capacity;
(3) Plaintiff did not prove the estate had no debt, and
(4) Plaintiff has recovered considerable taxable property claimed through the estate, and none of the offsetting claims she sought to prove in the trial court (but not the probate court) are cognizable at law.”

The Statement of Facts reflects that after the close of all the evidence the following proceedings were had:

“MR. KING: May I make my motion, now, Your Honor.
THE COURT: Yes, the Court is ready.
MR. KING: Defendants move that this cause be dismissed because it was commenced and is maintained in the wrong capacity. That is to say, this suit is brought by Mary Ellen Coakley, a widow, and the claim of Mary Ellen Coakley asserted herein is the claim of the estate of Joseph M. Collins, Deceased, which estate is as a matter of law and express statutory direction still open, and because the Plaintiff has not undertaken nor borne the burden of showing any of the few exceptions to the rule that a suit for the recovery of assets of an estate must be brought by the personal representative of the estate. Your Honor, I would like to direct your attention to the certificate in this exhibit that we put on, on our copy of the proceedings of the Joseph M. Collins Estate.
THE COURT: What does the certificate have in it, Counselor?
MR. KING: May I read it, Your Honor?
THE COURT: Yes, sir, go ahead.
MR. KING: ‘That the above and foregoing seventeen pages comprise a full, true and correct copy of all the papers and orders which have been filed or entered in Cause No. 3557 on the Probate Docket of the County Court of Cameron County, Texas,- styled ‘In the Matter of the Estate of Joseph M. Collins, Deceased’. After diligent search, no record or entry is found to exist in the records of my office of an inventory, appraisement and list of claims of said estate, or of a finding of the judge with respect to the amount of inheritance taxes due and owing by the estate, or any instrument in writing approved by the State Comptroller of Public Accounts stating that no inheritance tax is due, or of any order closing the estate, or of any final accounting of the Administratrix of the estate.’
Now, I would like to direct Your Honor’s attention to Article * * * to Section 410 of the Probate Code, and that section reads: ‘No final account of an executor or administrator shall be approved, and no estate of a decedent shall be closed, unless the final account shows, and the court finds, that all inheritance taxes due and owing to the State of Texas with respect to all interests and properties passing through the hands of the representative have been paid. If no inheritance tax is due, such fact must be shown by an instrument in writing, approved by the State Comptroller of Public Accounts, and filed with the final papers closing the estate’. That is Section 410 of the Probate Code, Your Honor. That has been the law since 1923.
This estate was opened, Your Honor, in 1943. Mrs. Coakley filed a bond, saying that it was to substitute for one that had been lost in 1949. She filed her bond in 1949, two years after this lawsuit was commenced. She said it was a substitute bond. Then in 1957, she came in and corrected the matter of the date of Joseph M. Collins’ death by her testimony she had been mistaken in her first testimony about the date of his death. Those are the proceedings, and all of the proceedings. In her application here for probate, Mrs. Coakley represented to the Court that an administration was necessary, and the Court so found. All the administration that there has been has been the replacement of an allegedly lost bond, and a correction of the date of death of Mr. Collins.”
-0-0-0-0-0-0-
“ (Whereupon the Court proceeded to hear legal arguments by all Counsel, both in support of and against such motion, following which the following proceedings were had, to-wit
“MR. JOHNSON: May it please the Court, of course the Court understands that this is the first time I have heard of this thing in this case, and I haven’t had the opportunity to read the authorities * 0* *
THE COURT: The Court wouldn’t claim to be so profound as to have remembered all of these cases that you have presented to the Court. But the Court has been concerned since the beginning of the case about this matter of jurisdiction, when it turns out from the evidence that the administration is still pending. I did not think about it, without having the benefit of these cases. But it was a matter I figured Counsel had already looked into.
MR. JOHNSON: May I say this — I haven’t looked into it as a matter of law, but I have looked into it as a matter of fact. The facts are briefly this * * * this twenty-two hundred debt, listed as the sole debt of the estate, and the assets which were listed as the sole assets of the estate then remaining in Cameron County, Texas, was a note secured by a deed of trust, and after this probate proceeding commenced, Mrs. Coakley was the then sole holder of the note, and the assets were foreclosed out through deed of trust sale, wiping out all of the assets of the estate and the only remaining debt of the estate, unless it should appear that this forty-seven thousand dollar debt was for some reason outstanding, which I can’t see that it is. But if there is any question about this * * *
THE COURT: Counselor, I think the motion is good. If Counsel briefs it and finds that it is not good, you may make a motion to reinstate the cause. But I think it is good at this time.
MR. JOHNSON: Well, I would like leave to do two things * * * the first thing I would like to ask leave to do is to re-open long enough to state the facts about the note that is involved in the Cameron County * * *
THE COURT: Counselor, I have let you re-open twice already.
MR. JOHNSON: I understand, but the Court understands my situation * * *
THE COURT: I think that in a motion to re-open the case, if you make one, can set those facts out. But I think it is the duty of the Court, when you both have closed twice already to render the decision called for by the motion.
MR. JOHNSON: And the second request is a matter of whether or not I should amend to show the capacity that the person has filed * * * now, I am not going to ask for leave to do that at this time, because I have not read the authorities, but I may at * * *
THE COURT: Counselor, it is going to be the judgment of the Court that the motion be granted. I take it you know your rights, and if you come in on a motion and find that the Court is entirely wrong, you can move to set aside the order. But I think the Court should dispose of the case at this time, and I think the motion is good. You may prepare the order, and give Counsel his exception to the ruling of the Court.”

The formal order of dismissal, entered on May 21, 1966 pursuant to the pronouncement of the trial court on May 18, 1966 reads in part as follows:

“And the plaintiff presented her evidence and rested; and the defendants presented their evidence and rested and after both parties had closed on May 18, 1966, the defendants moved that the cause be dismissed because it appeared that the plaintiff’s claim, whether meritorious or not, is as a matter of law a claim belonging to the estate of Joseph M. Collins, deceased, now pending in the probate court of Cameron County, Texas, which estate is open and has not been closed, and that plaintiff has shown no exception to the rule that claims belonging to the estate of a decedent must be asserted by the personal representative thereof;
“And the court having heard such motion and the argument of counsel thereon and being of opinion that said motion is good and should be sustained ;
“It is accordingly ORDERED, ADJUDGED AND DECREED that the plaintiff’s cause numbered and styled as above be, and it is hereby, dismissed this 18th day of May, 1966. All costs shall be taxed to the plaintiff.
“To which action of the court plaintiff then and there in open court duly excepted.”

The record reflects that in 1943 appellant secured the probate of the will of J. M. Collins in Cameron County, Texas. Will Collins was the named beneficiary under the will of J. M. Collins, deceased. Will Collins quit-claimed his interest in the Texas properties to appellant. The interests of Will Collins and of appellant through him were therefore subject to the administration on the estate of J. M. Collins. Appellant duly qualified as adminis-tratrix with the will annexed of the estate of J. M. Collins, deceased, by taking the oath and giving bond. In 1949 appellant replaced her first bond which was misplaced or lost with a new one. In 1957 appellant applied for and secured an order of the county court of Cameron County correcting the date of J. M. Collins’ death which had been mis-stated in the original application and order probating his will. Appellant did not file an inventory, appraisement or list of claims of the estate, nor did she file an inheritance tax return or secure a tax clearance, nor did she close or attempt to close the administration on Collins’ estate. In fact, appellant took only the steps here-inabove mentioned in said administration.

In support of their position that the instant suits were not properly brought by appellant individually, but that the same should have been instituted by her as ad-ministratrix of the estate of J. M. Collins, deceased, appellees rely upon the rule stated in Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 806 (1956) in which the court said:

“Article 1981 of our statutes provides that suits for the recovery of real and personal property belonging to the estate of a decedent may be instituted by the executor or administrator, and judgment in such cases is conclusive in the absence of fraud or collusion on the part of the representative. This statute states a general rule of procedure, and in the absence of circumstances requiring the intervention of equity vests in the personal representative the prior and exclusive right to bring such suits. It is clear, however, that the statute does not operate to deny in all cases the right of persons other than the executor or administrator to institute an action for the benefit of the estate. When administration is pending, the heirs are generally not entitled to maintain a suit for the recovery of property belonging to the estate, but in Barrera v. Gannaway, 130 Tex. 142, 105 S.W.2d 876, we observed that there are exceptions to this rule as pointed out in the opinion of the Court of Civil Appeals in that case. The last mentioned opinion, which is found in 74 S.W.2d 717, 718, after stating the general rule governing the maintenance of suits by heirs, declares that:
“ ‘Other exceptions to the general rule exist in cases where, there being an administration, it appears that the administrator will not or cannot act, or that his interest is antagonistic to that of the heirs desiring to sue. Rogers v. Kennard (54 Tex. 30, 37); Lee v. Turner, 71 Tex. (264), 266, 9 S.W. (149), 150; Modern Woodmen of America v. Yanowsky (Tex.Civ.App.) 187 S.W. 728.’
“If art. 1981 does not preclude the maintenance of suit by heirs under these‘circumstances, it is no obstacle to a suit by creditors in a similar case.”

Appellees also rely upon certain statutory rules which they say have largely formalized case law concerning the subject of who may sue to recover the assets of an estate. One statute so relied upon is Section 410, Texas Probate Code, V.A.T.S., reading as follows:

“§ 410. Inheritance Taxes Must be Paid
“No final account of an executor or administrator shall be approved, and no estate of a decedent shall be closed, unless the final account shows, and the court finds, that all inheritance taxes due and owing to the State of Texas with respect to all interests and properties passing through the hands of the representative have been paid. If no inheritance tax is due, such fact must be shown by an instrument in writing, approved by the State Comptroller of Public Accounts, and filed with the final papers closing the estate. Acts 1955, 54th Leg., p. 88, ch. 55.”

■ Art. 14.20(B) Taxation-General Code, as amended 1965, is now in the same wording as Section 410, Probate Code. Former Art. 14.21, Taxation-General Code, until 1965 related to the same subject.

Appellant recognizes the general rule as stated in Chandler v. Welborn, supra, but under her point one contends that she was entitled to sue individually under three alleged exceptions to that rule, i. e., (1) that no debts existed at trial time against the estate of J. M. Collins, (2) Mrs. Coakley, the appellant and administratrix of Collins’ estate are one, and (3) because there was a threat of loss to the estate through limitations. These contentions will be discussed in the order mentioned.

Under her contention that the nonexistence of debts against the estate authorized her to sue individually, appellant relies primarily upon the case of Whitaker v. McCarty, 221 S.W. 572 (Comm.App., 1920, Judg.App.). While it is true that some language in the opinion lends support to appellant’s contention here, analysis of the case reflects that it is distinguishable. In particular, it appears that Mrs. McCarty had brought a prior suit in Baylor County and had recovered a judgment in her own name against defendants who posted a supersedeas bond on appeal. The judgment in her favor was thereafter affirmed by the Court of Civil Appeals and writ of error was refused by the Supreme Court. Thereafter Mrs. McCarty filed a second suit (reported at 221 S.W. 572) on the said supersedeas bond seeking a recovery for the value of rents and occupancy of the land (which was homestead and community property) involved in the first case. In the second case the defendants questioned the right of Mrs. McCarty to sue individually while administration was pending on the estate of her deceased husband. The trial court and Court of Civil Appeals in the second case held that under these conditions Mrs. McCarty could maintain the second suit individually. The Court pointed out that the property was homestead and not subject to debts of the estate, that Mrs. McCarty owned one-half of it in fee and had the possessory right to it during her lifetime. However, the essential holding of the Court is reflected in the following portion of the opinion:

“Though the administration was still pending when the cause in Baylor county was filed and when it was tried, defendant in error recovered as of her own right, the judgment was rendered in her favor for the land and the rents, the supersedeas bond named her as obligee; judgment was affirmed in her favor, and by mandate of a proper court she was put in possession.
“That judgment was the determination by a court of competent jurisdiction of her right to the land and to the value of the use and occupancy; and the plaintiff in error cannot be now heard to question its binding force, but the question must be treated as res adjudicata.” 221 S.W. 573.

In the instant case, the appellant’s right to sue individually has not been established in a prior suit. We do not believe that the language in the opinion of the Court concerning non-existence of debts when considered in the context of that case is authority for appellant’s position here.

Under the first alleged exception appellant also places emphasis upon the case of Turner v. Pugh, 187 S.W.2d 598 (Tex.Civ.App., Amarillo, 1945, n. w. h.), on subsequent appeal Pugh v. Turner, 145 Tex. 292, 197 S.W.2d 822 (1946). In Turner v. Pugh, the court was primarily concerned with a question of admissibility of testimony alleged to be in violation of Art. 3716 V.A.C.S. (the “death statute” or “dead man’s statute”). The court held that because at the time of trial the independent executrix was a mere nominal party to the suit since all the legacies had been distributed, all the debts had been paid and nothing remained to be distributed, that the executrix could properly testify in a suit against Pugh based upon promissory notes given to her deceased husband. The court further held that the possibility that an amended inheritance tax return might have to be filed with the Federal Government did not prevent the independent administration from being closed, and that the executrix was not, therefore, a necessary party as distinguished from being a nominal party to the suit. Here we are not dealing with an independent administration nor an estate which has been fully administered. Instead, as above-stated, we are here considering an administration with the will annexed under the direction of the probate court, where nothing has been done by the administratrix in the probate court except taking the oath and giving bond. We do not regard Turner v. Pugh as authority for appellant’s position here where she has wholly failed to administer the estate or to close it or to file the State Inheritance Tax Reports required by law. We further believe that other cases relied on by appellant in support of her position under the first alleged exception are all factually distinguishable.

Under appellant’s claimed second exception which she says would authorize her to sue individually she relies upon the case of Lacy v. Williams, 8 Tex. 182 (1852) and cases therein cited as authority for her contention that where, as here, there is nobody else to call defendants to account, plaintiff may sue individually. Lacy v. Williams is not in point here. In that case it appeared that administration of the estate involved had been closed, there was no legal representative and no outstanding debts. The suit was brought by next friend for minor heirs and devisees who alleged that the defendants had colluded with a former executor while he was acting as such to convert certain property (slaves) to their own use. Lacy v. Williams does not support appellant’s position here.

Under appellant’s claimed third exception which she says would authorize her to sue individually, she relies on the contention that dismissal of the instant suits was not authorized because of threat of loss to the estate through limitations. Here appellant relies on the cases of Baker v. Hamblen, 75 S.W. 362 (Tex.Civ.App., San Antonio, 1903, n. w. h.) and Walker v. Abercrombie, 61 Tex. 69 (1884). In Baker v. Hamblen, it appeared the independent executor of the estate involved had died and no administrator with the will annexed had been appointed; that there had been no actual administration for about five years when Baker, as an heir brought suit. The court said that this was a necessary act for the preservation of the estate because there was a danger of loss to a part of the property by adverse possession, citing Richardson v. Vaughan, 86 Tex. 93, 23 S.W. 640 (1893). In the latter case the court said in part:

“Since our statute casts the legal title of property belonging to the estate of deceased persons directly upon the heirs, (subject, however, to the payment of debts,) we think it might properly have been held that, after the lapse of a reasonable time without administration upon the estate, they should have the right to sue for the recovery of any chose in action or other property which had descended to them. But from an early day a different doctrine has been announced in this court, and it is now too late to depart from it. As a general rule, the holding has been that the heirs cannot sue without alleging and proving that there is no administration upon the estate, and that there is no necessity for one. In Walker v. Abercrombie, 61 Tex. 69, an exception was recognized. There three years had elapsed since the death of the ancestor, and no administration upon his estate had been applied for. The estate was alleged to be insolvent, and it appeared that the debt which was sought to be recovered was about to be barred by limitation. It would seem that, where a suit is necessary to preserve the property, the right of the heirs to bring it ought to be maintained, especially where a considerable time has elapsed without administration. Creditors who have not seen proper to attempt the collection of their claims through the probate court are not likely to suffer any injury in such a case by permitting the heirs to sue. But in this case the allegations in plaintiff’s petition do not bring them within any of the exceptions to the rule that the administrator must sue. It is not alleged that there are no debts against the estate, and it does not appear that any emergency existed which made a suit by the heirs necessary in order to preserve the claim.” 23 S.W. 640-641.

In Walker v. Abercrombie, 61 Tex. 69 (1884) no administration had been taken out on the estate of Abercrombie. His surviving widow (to whom all their children had conveyed their interests) sued to recover the amount of a judgment rendered in favor of her husband more than six years prior to his death. In affirming a recovery for the widow the Court said:

“Here the subject matter of litigation would soon, in legal contemplation, be destroyed by lapse of time; those for whose benefit, chiefly, administration is granted had not seen proper to have an administration opened; sufficient time had elapsed to bar all debts not evidenced by writing; a prima facie case showing no interest of creditors in the fund is shown, and the beneficiary may not have been able to take out letters of administration.”

The court further held that Mrs. Aber-crombie could maintain the action in any event as survivor of the community.

We therefore hold that appellant has not brought her case within any recognized exception to the rule that ordinarily suits such as this should be brought by the administrator of the estate, particularly where the administration is still open and there is an administrator who may assert the causes of action belonging to the estate.

The estate of J. M. Collins is still to be administered. Until it is closed, the right to recover assets belonging to it is in the administratrix. Appellant as administratrix was required to take certain steps in the administration such as filing an inventory, appraisement and list of claims and annual accounts. She was required among other things to file a final account, secure its approval, and to apply for and secure an order closing the estate. An important and essential part of said administration was the determination of whether inheritance taxes were owed to the State of Texas. Such determination in the first instance was and is for the Probate Court in which the administration is pending. Until this is done under applicable statutes and case law the administration remains open. The probate court in which the administration is pending must determine if the estate is liable for inheritance taxes. If it is, the assets are available for payment. The interests of the legatee and those claiming through him are directly affected. Thus a claim for recovery of assets of the estate is one which should be brought by the administrator for the benefit of the estate. Here, allowing appellant to sue and recover individually would serve to circumvent the provisions of the Probate Code and Taxation-General Code. The situation is brought about by appellant’s own conduct. If appellant recovers individually, without completing the still pending administration the State and others would have to investigate and institute suit to protect their rights. The burden is on administrator to take the steps concerning inheritance tax rights so the State will have notice prior to the closing of the administration. Under the facts disclosed by the record here, the claims to the properties in question belonged to the estate of J. M. Collins, deceased. The trial court correctly held that appellant failed to establish her right to recover individually.

We overrule appellant’s first point and sustain appellees’ first counterpoint.

Appellant’s points two, five and six read as follows:

“POINT TWO
“The Court erred in denying plaintiff an opportunity to review authorities and file a trial amendment joining herself in her capacity as administratrix when defendants, for the first time after all parties had rested in the hearing on title issues, moved to dismiss on the ground that plaintiff had sued in the wrong capacity as heir.”
“POINT FIVE
“The Court erred in failing, upon plaintiff’s motion to reinstate the causes, to grant plaintiff’s motion for judgment, render judgment for plaintiff upon title issues, and to hear the case upon damage issues.”
“POINT SIX
“The Court erred in overruling plaintiff’s motion to adduce additional evidence.”

Appellees’ third counterpoint reads as follows:

“THIRD COUNTERPOINT
“The trial court did not abuse its discretion in refusing the motions to file a trial amendment and to re-open the case because:
(1) The trial court was justified in not crediting the claim of surprise since the plaintiff had tried throughout the trial to prove by parol and hearsay that the estate was closed or no estate tax return was due;
(2) Prior to announcement of the order of dismissal, plaintiff’s counsel stated he would not file a trial amendment ‘at this time’ and only asked leave to ‘state the facts,’ not to adduce additional evidence; the motions, being filed after dismissal, came too late;
(3) Plaintiff actually testified or proffered all the evidence she sought to offer to the extent of its admissibility;
(4) The evidence tendered after the trial was over was incompetent for the purpose for which tendered;
(5) The proposed trial amendment was an incomprehensible attempt to sue both for herself and for the estate and would, as a matter of evidentiary law, have necessitated the striking of evidence and resulted in the defendants winning on the merits.”

Appellant’s motions involved in her points two, five and six were all made after the trial court had pronounced its judgment of dismissal, although the formal order was entered later on. When the trial court pronounced the judgment of dismissal the trial was terminated. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912); Texas State Board of Examiners In Optometry v. Lane, 337 S.W.2d 801 (Tex.Civ.App., Ft. Worth, 1960, wr. ref.). Appellant’s motion to file a trial amendment was then too late. 2 McDonald, Texas Civil Practice, 735-740, sections 8.07, 8.08. Under these conditions the trial court did not abuse its discretion in refusing to grant appellant’s motions to file a trial amendment or to reinstate the cases or to adduce additional evidence. Appellant’s points two, five and six are overruled.

Appellant’s point three reads as follows:

“POINT THREE
“The Court erred in the Reising Case in holding that Defendant Reising and his assigns were not estopped by the Judgment for Plaintiff * * * in Cause No. B-14,831 — a suit involving a different tract under the same substantial chain of title — and barred by res judicata from asserting that the facts disclosed in that chain of title do not permit her to sue and recover judgment against them in that capacity.”

Cause No. B-14,831 in the 93rd District Court of Hidalgo County, Texas was brought by “Mary Ellen Coakley, a widow” against F. M. Reising and others. That was a trespass to try title suit involving another tract of land situated in Hidalgo County, Texas. Appellant says that an abstract of title filed in that case by counsel for Mrs. Coakley reflected substantially the same instruments relied upon by appellant in the instant case, with some exceptions relating to after-discovered original deeds which at the time of the prior suit were allegedly lost. The prior suit was terminated by an agreed judgment dated June 17, 1946, which contained among other recitations the following:

“ * * * the parties announced in open court that all matters in controversy had been settled and that the parties have agreed that the plaintiff should recover title and possession to the hereinafter described land and premises against all the defendants herein and that the defendant, F. M. Reising should pay all unpaid costs incurred in this case.”
* * * * * *
“It is further ordered, adjudged and decreed that all other claims of all the parties to this suit not herein granted are hereby expressly denied.”

Appellant contends that because of the said prior judgment the appellee Reising and his assigns were estopped and barred by res judicata from asserting that the facts disclosed in the chain of title in the prior suit prevent appellant from suing and recovering judgment individually in the present suit against appellees Reising, et al. We do not agree with such contention. The agreed judgment in the prior suit served to adjudicate the title to the other tract of land there involved. However, the es-toppel of a consent judgment cannot be extended beyond the scope of the stipulation or agreement, and the judgment cannot be used for a purpose different from that contemplated by the arrangement of the parties. 50 C.J.S. Judgments § 705, pp. 160-161. A judgment works an estoppel only as to those facts actually and necessarily decided. Hanrick v. Gurley, 93 Tex. 458, 56 S.W. 330 (1900). 30-A American Jurisprudence 2d, Judgments § 149, p. 256; 33 Tex.Jur.2d, Judgments, § 105, pp. 623-24. Aside from the adjudication of title to another tract of land, we cannot determine what issues were actually and necessarily decided in the prior suit. Appellant’s point three is therefore without merit and is overruled.

We pass now to a discussion of appellant’s fourth point replied to by appellees’ second counterpoint, which are as follows:

“POINT FOUR
“The Court erred in holding that Defendants did not waive and were not estopped to assert motions to dismiss on the ground that ‘the cause is commenced and maintained in the wrong capacity’ when defendants filed no plea to that effect prior to trial under Rule 93(b), (c) and (e) and, with full knowledge of the capacity in which plaintiff sued and the administration proceedings upon which she relied did not present or disclose such dilatory matter at pre-trial hearings or otherwise and obtained the stipulation with plaintiff for trial of both cases on the merits without disclosing it.”
“SECOND COUNTERPOINT
“The motion to dismiss was timely because such motion was not well taken until the facts that the estate is open and that the claim to the land belongs to the estate developed on trial.”

Appellant sued as “Mary Ellen Coakley, a widow”. Her pleadings were formal trespass to try title petitions and did not disclose that appellant was suing as an heir or one who had acquired the rights of heirs.

The leading case on the plaintiffs burden in such circumstances and the proper trial court judgment where the requisite proof is not made is Pure Oil Co. v. Tunnell, 126 Tex. 57, 86 S.W.2d 207 (1935). There the trial court directed a verdict against the intervenors who had filed a petition in the statutory form of trespass to try title to an undivided one-half interest in the tract of land involved. The Court of Civil Appeals reversed and remanded. Tunnell v. Moore, 53 S.W.2d 324. The Supreme Court affirmed the judgment of the Court of Civil Appeals and held in part as follows:

“The plaintiff in error seeks to justify the trial court’s judgment on the further ground that there is neither pleading nor proof to show that there is no administration pending on the estate of Mrs. J. M. Tunnell, deceased, and that no necessity exists therefor. It is quite true that, as a general rule, where heirs sue as such for property belonging to the estate of their ancestor they must both plead and prove facts of the character mentioned. The cases in which this general rule has been applied to the full extent are cases in which the plaintiff’s petition showed on its face the claim of heirship. See Youngs v. Youngs (Tex.Com.App.) 26 S.W.2d 191, and cases there cited. In so far, however, as the matter of pleading is concerned, the rule is not applicable to a petition in trespass to try title which does not disclose on its face the fact that the claimants sue as heirs. Article 7366 of the statutes regulates the averments of petitions in trespass to try title. A petition of this sort which alleges nothing more than the statute prescribes is legally sufficient. Bridges v. Cundiff, 45 Tex. 440. In the present instance the petition of the intervenors simply follows the statute. It was incumbent on them, however, to show by testimony that no administration of the estate of Mrs. Tunnell is pending and none is necessary. They failed to make this proof. This furnished legally sufficient ground for dismissal of their suit, but not for the judgment which the trial court rendered concluding the merits of their claim. In a case of this sort, proof of no administration and no necessity respects the right of the claimants to sue rather than the merits of their claim. See Youngs v. Youngs, supra; Richardson v. Vaughan, 86 Tex. 93, 23 S.W. 640; Giddings v. Steele, 28 Tex. 732, 733, 91 Am.Dec. 336; Patton v. Gregory, 21 Tex. 513, 514; Lacy v. William’s Heirs, 8 Tex. 182.”

The rules announced in Pure Oil Co. v. Tunnell, supra, have been followed in a number of cases among which are Dutchover v. Dutchover, 334 S.W.2d 569 (Tex.Civ.App. El. Paso, 1960, n. w. h.); Wilson v. Wilson, 216 S.W.2d 684 (Tex.Civ.App.Texarkana, 1948, wr. ref. n. r. e.); Gaston v. Bruton, 358 S.W.2d 207 (Tex.Civ.App. El Paso, 1962, wr. dism.).

In Dutchover v. Dutchover, supra, the court held in part as follows:

“An examination of appellants’ pleadings reflects that the action in trespass to try title was framed in the formal manner authorized by Rule 783, Texas Rules of Civil Procedure. We believe the law in Texas is well settled that the plaintiff in a trespass to try title suit is not required to allege facts which show his right to sue, even though the action is one which seeks to affect assets of a decedent brought by or against the heirs within four years of the death, and it is not necessary, in a formal petition, to allege that there is no administration or need therefor, provided the pleading does not, on its face, show that the parties are heirs. Pure Oil Co. v. Tunnell, 126 Tex. 57, 86 S.W.2d 207; Fowler v. Roden, 129 Tex. 599, 105 S.W.2d 187; Antone v. Stiles, Tex.Civ.App., 177 S.W.2d 246.
* * * * * *
“We do not agree with appellees’ contention that the plaintiffs’ petition, in a strictly formal trespass to try title action, must contain an allegation that no administration was pending upon the estate of the deceased and none was necessary. If, during the trial, however, it develops, as it has here, that the cause of action is one involving assets which may be decreed a part of a decedent’s estate, it then becomes necessary, as a jurisdictional matter, for the plaintiff to prove that no administration is pending and none is necessary. This, the appellants failed to do, and, in the absence of such proof, the only proper judgment to he entered by the trial court was the order of dismissal, and this was done. Wilson v. Wilson, Tex.Civ.App., 216 S.W.2d 684.”

In Wilson v. Wilson, supra, the court held in part as follows:

“The petition of plaintiffs was in statutory form in trespass to try title. It did not contain an allegation that no administration was pending upon the estate of J. C. T. Wilson, deceased, nor that an administration was unnecessary. In Texas the rule is well settled that in a trespass to try title suit in the statutory language it is not necessary to allege that no administration is pending and none necessary. Pure Oil Co. v. Tunnell, 126 Tex. 57, 86 S.W.2d 207. If during the trial, however, it develops that the cause of action is one in which assets are involved which may be decreed a part of the decedent’s estate, then it becomes necessary as a jurisdictional matter to prove that no administration is pending and none necessary; absent such proof, the proper judgment to be entered by the court is one of dismissal. In the instant case, a statutory trespass to try title suit, it was unnecessary for plaintiffs to include in their petition any allegation with reference to the pendency of an administration on the estate of J. C. T. Wilson, deceased. After it became apparent that the suit was one pertaining to part of the assets of J. C. T. Wilson’s estate it became necessary to prove that there was no administration on his estate and none necessary. This proof was supplied * * Therefore, plaintiffs could recover.

In Pure Oil Co. v. Tunnell the Supreme Court held that the trial court was authorized to dismiss the intervenors’ trespass to try title suit, but not to render judgment against them on the merits, where they failed to prove on the trial that there was no administration on the estate of Mrs. Tun-nell and no necessity therefor; and this related to the rights of the claimants to sue rather than the merits of their claim. In Dutchover the court held that where such requisite proof was lacking, the trial court order of dismissal was proper. In Wilson, the court recognized the applicable rule, but held that proper proof was made where an administrator never qualified as such. In Gaston the court recognized the applicable rule, but held that judgment for appellees was proper under an exception thereto which authorized a suit by heirs where the interest of the administrator was adverse to them.

It thus appears that appellees’ motions to dismiss were timely made after the close of all the evidence on the ground that administration on the estate of J. M. Collins, deceased, was still open and that the trespass to try title claims belonged to his estate, rather than to appellant individually. Under the authorities hereinbefore cited, appellees did not waive nor were they estopped to assert their motions to dismiss at the close of all the evidence on the ground that they failed to file dilatory pleas under Rule 93(b), (c) and (e), Texas Rules of Civil Procedure. Appellant’s point four is overruled and appellees’ second counterpoint is sustained.

Appellant’s point seven reads as follows:

“POINT SEVEN
“The Court erred in overruling plaintiff’s Plea in Bar filed on December 4, 1965.”

Appellant’s contention here is based upon the action of the trial court taken at a prior trial of the instant case in severing title issues from other issues, and thereafter on motion for new trial setting aside a judgment rendered on such issues. The point is without merit. The actions of the trial court in the prior trial were proper and furnish no basis for appellant’s present complaint.

The judgment of the trial court in each case is affirmed.


author: PHILLIPS, Chief Justice.

text:
    James O. GERST, Savings and Loan Commissioner of Texas et al., Appellants, v. HOUSTON FIRST SAVINGS ASSOCIATION, Appellee.
    No. 11554.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1967.
    Rehearing Denied Jan. 3, 1968.

      Crawford C. Martin, Atty. Gen., George M. Cowden, 1st Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., Sam Kelley and C. Fielding Early, Asst. Attys. Gen., Austin, Baker, Heard, Elledge & Sullivan, Lowell B. Hays, Elliott & Elliott, Loran L. Elliott, Houston, for appellants.
    John W. Stayton, Austin, for appellee.
   PHILLIPS, Chief Justice.

This suit was filed by appellee Houston First Savings Association in the District Court of Travis County against appellant James O. Gerst, who was then the Savings and Loan Commissioner, seeking to set aside an order issued by the Commissioner. The order denied appellee’s application for permission to open a savings and loan branch office in the City of Houston.

Prior to issuing this order, a public hearing was held before the Commissioner on December 12, 1966 concerning the application. Spring Branch Savings and Loan Association and Southwestern Savings Association, both of Houston, appeared at the hearing, opposing the application and both of these associations intervened on the side of the Commissioner at the trial.

The case was tried to the court without a jury and judgment was entered in May, 1967 overturning the order of the Commissioner and remanding the order to the Commissioner for findings not inconsistent with the judgment. All appellants have properly perfected their appeal to this Court.

We affirm.

Appellants are before this Court on two points of error, briefed together, namely, the error of the trial court in failing to hold that the order of the Commissioner denying the subject application is sustained by substantial evidence; in failing to uphold the findings of the Commissioner that there is no public need for the proposed branch office; that the volume of business in the community is not such as to indicate a profitable operation; and that the establishment of the branch office would result in undue harm to existing associations which are each and all supported by substantial evidence.

We overrule these points.

In denying appellee’s application for a branch office the Commissioner made the following findings: there was no public need for the proposed branch facility; the volume of business in the community in which the proposed branch office would conduct its business is not such as to indicate a profitable operation; the establishment of the proposed branch office in the area would result in undue harm to the other associations. All other findings required by the Savings and Loan Act and the Rules and Regulations for Savings and Loan Associations were favorable to ap-pellee and are not in issue here.

The phrase public need as used in the Texas Savings and Loan Act, Tex.Rev. Civ.Stat.Ann. art. 852a, was defined by the Supreme Court in Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966), as follows:

“We think the words ‘public need’ as used in Section 2.08(3) have the same mea,ning as the words ‘public necessity’ as used in the Texas Banking Code of 1943, 1. c. art. 342-305, Vernon’s Ann. Tex. Stats., that is, a substantial or obvious community need for the proposed association in the light of attendant circumstances, as distinguished from a mere convenience on the one hand and an absolute or indispensable need on the other.”

In'support of this definition, the Supreme Court quoted from the opinion of this Court in Chimney Rock National Bank of Houston v. State Banking Board of Texas, 376 S.W.2d 595 (Tex.Civ.App.1964, no writ).

In Gerst v. Nixon, supra, the Court also held that the Commissioner’s order is to stand or fall upon the evidence adduced and matters noticed at the hearing held by the Commissioner; that the Commissioner may not base his decision upon evidence disclosed by an investigation made by his office unless the report of the investigation is made a part of the official record and the parties afforded an opportunity to be heard with respect thereto; that only that part of the record that constitutes competent evidence may be considered by the reviewing court.

In State Banking Board v. Airline National Bank, 398 S.W.2d 805 (1966 writ ref’d n.r.e.), this Court held that there is nothing in either the Constitution or Banking Code of this State imposing, expressly or by implication, a condition that new banks not be organized or located in communities receiving banking services from existing banks. That such a restriction would be monopolistic in nature and would conflict with the express provision of our constitution condemning monopolies. Vernon’s Ann.St.Tex.Const. art. 1, Sec. 26. Likewise, the Supreme Court stated in Gerst v. Cain, 388 S.W.2d 168 (Tex.1965), and restated in Gerst v. Nixon, 411 S.W.2d 350, 359, 360.

“Competition is the lifeblood of a free enterprise economic system. It is only because savings and loan associations are affected with a public interest, Brazosport Savings & Loan Ass’n v. American Savings & Loan Ass’n, 161 Tex. 543, 342 S.W.2d 747, that they are protected from undue injury brought about by excessive competition.” (Emphasis added.)

With these guidelines in mind we review the evidence.

The area in which the proposed branch office will be located is in Houston, and is bounded on the north and east by the Hempstead Highway, on the south by the Katy Freeway, and on the west by the western city limits of Houston.

Mr. W. E. Dyche, Jr., president of ap-pellee and a director since 1942, testified that appellee has been in business in Houston since 1921.

On November 30, 1966, the last end of the month before the hearing held on December 13, 1966, total savings held by appellee amounted to approximately $131,500,000.00. On that date its aggregate loss reserves, surplus and permanent reserve fund stock was “slightly over eleven million dollars.” The resultant ratio of reserves, surplus and capital to savings was 8.36%, well in excess of applicable minima. Dyche also testified as to the profitability of appellee’s operations during the current and preceding three years (a profit of $165,000.00 in 1963; $550,000.00 in 1964; $872,000.00 in 1965; and $1,200,000.00 in the first eleven months of 1966) and to the fact that it had no supervisory problems.

Mr. Dyche testified that appellee had made a survey of the Houston-Harris County area to determine where branch offices of savings and loan associations were needed and could be located most advantageously.

He stated that the optimum characteristics of a potential branch office location are a community that is still growing, an area that will yield substantial savings and an area that needs a loan service — particularly in the case of appellee, a need for the small installment loan service that is afforded by appellee. The proposed location has all these characteristics.

Dyche testified that appellee had established a small loan department eighteen months before the hearing that was operating at a profit. This department is concerned with loans of less than $5,000.00, principally to finance the making of improvements to existing homes and to finance the purchase of lots upon which the borrowers intend to build homes in the future. This aspect of savings and loan operations had become particularly attractive both to the association and its customers because of prevailing economic conditions. As of November 30, 1966, the balance of loans in this department was approximately $2,778,000.00. The witness pointed out that no other savings and loan association in the area of the proposed branch was in this market significantly.

If the branch is opened, the branch manager will be a man experienced in the installment loan business; and the branch will first concentrate upon the making of such loans. That the branch proposes to make such loans will be widely advertised.

Another point made by Mr. Dyche was the imbalance reflected by appellee’s past business experience in the primary service area of the proposed branch. He testified that in that area appellee had invested two dollars in loans for each one dollar it had received in savings. By way of comparison, he stated that in the instance of appellee’s only existing branch, the savings received and the funds lent were almost equal.

Mr. Dyche also testified as to his familiarity with the budget for the proposed branch and unequivocally stated that in his judgment the branch would operate profitably.

Of significance to the matters here at issue, appellee, although the second largest of Harris County’s twenty-four savings and loan associations, has heretofore been allowed to operate but one branch office. By comparison, Southwestern, one of the protestants, had five branches in operation on the date of the hearing with a sixth scheduled for opening the first of January, 1967, while the other protestant had three branches. Mr. Dyche testified that this lack of branches left appellee at a competitive disadvantage, particularly with respect to commercial banks; and that if appellee and other savings and loan associations are to compete effectively with the banks for savings, the associations must have branches.

The branch office presently operated by appellee is located at Post Oak and West-heimer. It has been very successful and has realized about twenty million dollars in savings and has made loans in like amount. The experience gained in the operation of this branch can be utilized in the operation of the proposed branch office.

In the main, the economic data offered in support of the application were developed by Economic Consultants, Incorporated, an economic research firm specializing in the preparation of economic and feasibility analyses for financial institutions, and presented at the hearing by its vice president, Mr. John William Beck. This economic study was introduced at the hearing held by the Commissioner and fully vouched for by Mr. Beck at the hearing.

Two areas of Mr. Beck’s testimony bear on the issue of public need for the branch office that appellee seeks to operate. These are the economy of Houston and Harris County in general; the other, the economy of the area proposed to be served by the branch office appellee seeks.

The state of the general economy in Houston and Harris County was treated but briefly. Beck pointed out that Houston’s civilian labor force had increased in mid-October, 1966, to 713,550, while at the same time the jobless total had decreased to 14,400, resulting in an unemployment rate for Houston of 2% as compared to the national average of 3.9%. He next called attention to the fact that bank clearings and debits to individual accounts in banks were in the same period up 12.8% and 13.6%, respectively. Correspondingly, the reported payroll for Harris County in the first quarter, 1966, was up 13.2% over the first quarter of 1965. These increases were accompanied by an increase 'in retail sales in 1966 of 8% and by substantial increases in utility usage, rail shipments, port tonnage and the like.

Mr. Beck summarized the reflection of the various economic indicators which point to the fact that the business activity in Houston is in a very healthy state.

The state of the economy of that portion of Houston that has been delineated by appellee in its application for the proposed branch as its “primary service area” was treated by Mr. Beck. As stated above, the primary service area is bounded on the north and east by the Hempstead Highway; on the south by the Katy Freeway, and on the west by the western city limits of Houston. Beck stated that the Hemp-stead Highway and the Katy Freeway are ■traffic barriers that more or less insulate this area.

The primary service area of the proposed branch office had a population of 39,488 persons on April 1, 1960. This population as of January 1, 1966, had increased to 53,600 persons, an increase of 14,112 persons or 35.7%. This population growth in the area between 1960 and* 1966 (35.7%) compares to the population growth in all of Harris County of 24.2% during this same period. The average age of males in the area is 24.8 years and that of females 25 years; and this compares to respective averages of 27 years and 27.3 years for Harris County as a whole.

The aforementioned statistical data tend to prove two points. First, the population of the primary service area of the proposed branch is expanding. Second, the population of the primary service area has been growing at a faster rate than has Harris County’s population.

Statistical data presented by the witness as to current population of the primary service area (55,600 persons as of September, 1966) further indicate its population is still showing growth characteristics.

In direct testimony, Mr. Beck further emphasized the favorable growth characteristics of the primary service area that the population has grown faster than the counties in the past and is forecast to continue growing at a faster rate than the county as a whole in the future. The forecast is that the population of this area will total 64,000 persons in 1970, an increase of 62.1% over the 1960 population of 39,488. It is one of the fastest growing areas in Houston.

Other independent indicators of the population growth that is occurring within the service area of the proposed branch were commented upon by Mr. Beck as follows:

An indicator of the population growth that has taken place and is projected to take place in the primary service area is provided by an analysis of telephone main stations that are in service and are projected to be in service by Southwestern Bell. Additional information submitted indicated that there were 13,500 telephone main stations in the Homestead 2 and 5 Exchanges in 1960. This number increased to 20,000 by 1966. This was a growth of 6,531 residential main stations or 48%. The total growth that is anticipated by Southwestern Bell between 1960 and 1970 is 14,023 main stations or 104%, an actual doubling of the number of telephone main stations of Southwestern Bell in the two exchanges.

Enrollment in public schools in the primary service area between 1960 and 1966 increased from 11,168 to 15,987 students, a growth of 4,819 students or 43.2%. The Spring Branch School District recently revised its estimates of anticipated enrollment upward to a total of 39,000 students for the year 1969, an increase of 30.9% from 1966 to 1969. The District, to accommodate projected enrollment, recently went before the voters with a $9.75 million bond issue to be used to finance expansion of existing schools and to construct new facilities. The bond issue was voted. Of the total enrollment in the District 55.8% is within the primary service area.

Other indicators of the population growth that has occurred and that is anticipated to occur within the area are the expansion of the Long Point National Bank’s physical plant from a one-story to a four-story building; the planned expansion of the Sam Houston Hospital; the planned expansion of Spring Branch General Hospital; the planned expansion of Cameron Iron Works, Inc.

The availability of room for additional population increase within the primary service area was favorably commented on by Mr. Beck in his testimony relative to a land use study just completed by the City of Houston. That study reflects that about fifty percent of the residential area in the primary service area had already been developed with the remaining fifty percent available for future development. From a population standpoint the primary service area is somewhat less than 50% developed, but from a land use standpoint it is approximately 50% developed.

Beck presented evidence indicating that the median family income of families residing within the primary service area was $8,062 in 1960. This compares with Harris County, $6,062, and the City of Houston of $5,902. That the median family income in the area is substantially higher than that in the County as a whole or for the City. The high income characteristics of residents in the area were further illustrated by the witness’ comment that “thirty-five percent of the families that reside within the primary service area had incomes in excess of $10,000.00 a year, whereas in Harris County, this figure was twenty-two percent.” The percentage figure for the area is 60% higher than that for the County.

In addition, he testified that the primary service area is a growing community. There is a great deal of construction activity taking place within its boundaries. Homes being constructed in the service area are in the neighborhood of $20,000 and up in price.

The number of building permits for dwelling units in the primary service area were 464 in 1960, 1,053 in 1961, 2,249 in 1962, 3,529 in 1963, 4,551 in 1964, 5,099 in 1965 and 5,790 in the first ten months of 1966. For the City of Houston as a whole the number of residential building permits issued has declined each year since 1962.

The number of single family dwelling units constructed in the primary service area between 1960 and 1966 are as follows: 1960 equals 415 units, in 1961 342 units were built, 1962 equals 307 units, in 1963 374 units were constructed, 1964 equals 375 units and in 1965 453 units were built. During the first ten months of 1966 296 units were permitted. These data indicate that “construction of single family units has gone along on a fairly even keel since 1960.”

The witness noted that construction of multi-family units in the primary service area has fluctuated from year to year since 1960. Forty-nine units were erected in 1960, 247 units in 1961, 889 units in 1962, 906 units in 1963, 647 units in 1964 and 95 units in 1965. So far in 1966, January through October, there have been a total of 395 units as opposed to 36 last year, so that there has been resurgence as far as construction in the area in 1966 as opposed to 1965. Construction is running about 68.5 percent ahead of last year through October of this year. That apartment dwellers are good savers of money.

The foregoing data indicates that the primary service area has experienced a substantial volume of construction activity in the past. The year 1965 was below average. However, construction, particularly in the multi-family unit category, is on the increase. Occupancy of these multi-family units is extremely high and the outlook is quite good.

Further evidence of expanding building activity in the primary service area is the development of a 500-unit apartment house on 32.5 acres of land immediately in back of the Spring Village Shopping Center, the tract lying close to the proposed branch site. An additional 400-500 town house apartment will be built in the western part of the service area. Moreover, 80 units are planned at a location a half mile from ap-pellee’s proposed site; 50 units will be constructed on Blaylock and 200 to 300 units built in the eastern portion of the primary service area.

In 1960 84.1% of the dwelling units in the primary service area were owner-occupied as compared to 58.4% for the County as a whole.

The 1960 census reflected that only 3.2% of the 10,092 houses in the primary service area were vacant and available for sale. In June, 1966, 93.6% of the apartment units in this area were occupied.

Economics Consultants presented further data concerning utilities, schools, traffic and capital improvements, commercial and industrial activity in the area and data concerning the financial institutions in the area. With respect to the financial institutions in the area designated as the primary service area there is one bank and one savings and loan association and twelve company credit unions.

With respect to the commercial and industrial activity, it would unduly lengthen an opinion to list the numerous plants in the area and the great number of workers they employ, however it should be pointed out that this area under consideration is unique with its mixture of high grade residential areas interspersed with industrial areas.

Testimony as to lack of need of the new facility was presented by two witnesses, one witness for Spring Branch Savings and Loan which is the only savings and loan company having a facility in the area designated as primary service area by ap-pellee, and by a witness representing Southwestern Savings and Loan. The testimony of these two witnesses was scant with few details other than to suggest that the present savings and loan facilities in the area were adequate, that Southwestern Savings had been granted a branch on the Katy Freeway and that such branch should be given the chance to prosper and grow.

In addition, appellants pointed out that appellee had been subjected to credit restrictions by the Federal Home Loan Bank and any net savings received by them had to be applied under regulations against, approximately, nine million dollars borrowed from the Federal Home Loan Bank and, consequently, not available for loans in the area. That according to appellee’s own evidence, the Hempstead Highway and the Katy Freeway are not the barriers to the primary service area that they were alleged to be. That appellee’s exhibits show that there are many streets providing traffic access and flow crossing these alleged barriers and there are developed areas outside of the so-called primary service area having quicker driving times to the proposed site than other areas within the primary service area.

Appellants also contend that the picture of financial institutions cited by appellee as being in the primary trade area is not a true one inasmuch as there are five savings and loan facilities, five banks, some twelve company credit unions and small loan or finance companies located either in the primary trade area or in a surrounding area adjacent to it.

While there undoubtedly will be some overlapping of trade territories with respect to the financial institutions located in the area and those pointed out by appellants to be in adjacent territory, the public need reflected by the record in this case does not rest upon the probability of economic activity but rather upon evidence showing a present public need resulting from accomplished rapid economic growth, together with proof of factors pointing clearly to an acceleration of economic growth in the future.

While the financial institutions already existing in the primary trade area as delineated by appellee, including the company credit unions, as well as those financial institutions outside but near this area, are all factors to be considered with respect to the application, still the order of the Commissioner is not supported by evidence of a substantial nature to support the findings he has made with respect thereto.

We hold that the action of the Commissioner was arbitrary and not supported by substantial evidence when he found that there was no public need for the proposed branch office. Gerst v. Nixon, 411 S.W.2d 350 (Tex.1967).

In Chimney Rock, supra, this Court stated that it is very difficult to differentiate between the proof required to show necessity for a bank and that required to show the volume of business in the community where such proposed bank is to be established is such as to indicate profitable operation of the proposed bank. Much of the evidence applicable to the one is equally applicable to the other. We also said:

“Under the facts of this case we hold that the mere sufficiency of existing banking facilities, in the sense of some facilities more or less appropriately located in the area and furnishing the usual gamut of services, is not in and of itself sufficient basis to deny establishment of the proposed bank where the general economy of the area and its reasonable potential are such that there is room for further installation without causing excessive competition with real harm to any nearby banks now existing or unduly affecting banking structure at large.”

Consequently, we also hold that the findings of the Commissioner that the volume of business in the community is not such as to indicate a profitable operation and that the establishment of the branch office would result in undue harm to existing associations are not supported by substantial evidence.

Appellants’ evidence, at best, was to the effect that there are “some facilities more or less appropriately located in the area and furnishing the usual gamut of services.” Evidence of the mere existence of these facilities is the main portion of their protest evidence and this, under the framework of the cases cited above, is not substantial evidence, where reasonable minds could differ, in a dynamic growing community such as that outlined by appellee. Gerst v. Nixon, supra.

The judgment of the trial court is affirmed.

Affirmed.

      . Suit was filed pursuant to Section 11.12 of the Savings and Loan Act, Vernon’s Ann.Tex. Rev.Oiv.Stat.Ann. art. 852a.