author: PARKER, Justice.

text:
    STATE of Texas, Appellant, v. Tom D. EASLEY et al., Appellees.
    No. 6768.
    Court of Civil Appeals of Texas. Beaumont.
    April 1, 1965.
    Rehearing Denied April 28, 1965.

      Woodrow Curtis, Asst. Atty. Gen., Austin, for appellant.
    H. A. Coe, Jr., Kountze, for appellees.
   PARKER, Justice.

The State of Texas sued Tom D. Easley and wife, Norma Jean Easley, and James Edward Read and wife, Geraldine Read, in trespass to try title for 33.61 acres of land situated in Hardin County, Texas. Plaintiff and defendants each filed motions for summary judgment. The motion of the State was refused and the motion of the defendants was granted and judgment entered accordingly. The parties will be designated as in the trial court.

Olive-Sternenberg Lumber Company was the owner at one time of all lands involved in this suit. By deed dated June 11, 1938, Olive-Sternenberg Lumber Company as a gift and without consideration conveyed to plaintiff, the State of Texas, two tracts of land totaling 33.61 acres of land for right-of-way purposes. That it was a “gift” and donated is undisputed and admitted by plaintiff.

By deed dated September 29, 1956, Cecil Smith and others conveyed to Tom Easley and Leveta Easley 2.115 acres of land acquired by such grantors from themselves as trustees and owners of all stock of the dissolved corporation, Olive-Sternenberg Lumber Company. (Leveta Easley was divorced from Tom D. Easley and conveyed her interest in the 2.115 acres to Tom D. Easley.) Part of such land is within the limits of the 33.61 acres and part outside thereof. The western line of the 2.115 acres is coincident with the eastern line of Hardin County 1.64 acres described in the next paragraph.

On April 28, 1961, the Governor of the State of Texas under Art. 6673a, Vernon’s Rev.Civ.St.Tex., upon the recommendation of the State Highway Commission, conveyed to Hardin County 1.64 acres, more or less, which was completely within the limits of the lands conveyed by Olive-Sternenberg Lumber Company to the State of Texas. This 1.64 acres was conveyed by deed recorded in Vol. 418, p. 103 of the Deed Records of Hardin County, Texas, reciting that Hardin County originally acquired this land from Olive-Sternenberg Lumber Company at no cost to the State. The deed of April 28, 1961, also recited the land was no longer needed for highway purposes or for use of citizens as a road due to the relocation of the highway and then set forth the other provisions of Art. 6673a authorizing the Governor to quitclaim to the County its interest in said 1.64 acres. The ensuing sketch shows the location of the old highway rights-of-way and new highway rights-of-way of the State of Texas, the 1.64 acres, and the 2.115 acres showing that part in the old highway right-of-way and that part outside of the old highway right-of-way.

The defendants, James Edward Read and wife, Geraldine Read, acquired an interest in the 2.115 acres from Tom D. Easley and wife.

The plaintiff, the State of Texas, admits defendants own that part of the 2.115 acres outside the limits of the old highway. As to that part of the 2.115 acres within the limits of the old highway right-of-way and within the limits of the 33.61 acres conveyed by Olive-Sternenberg Lumber Company to the State of Texas, defendants say that when same was abandoned by the State of Texas, that they, as subsequent assignees of Olive-Sternenberg Lumber Company, became vested with the title thereto under Art. 6674q-9, Vernon’s R.C.S.T., providing that when the right-of-way or any part thereof has been abandoned and was donated to the State of Texas for right-of-way purposes then, and in that event, the fee simple title vests in said owners, their heirs and assigns. The trial court held that as to that part of 2.115 acres in the old right-of-way the State of Texas abandoned such right-of-way, and the title thereto was by such abandonment vested in defendants.

Viewing the evidence most favorable to defendants on the question of abandonment, we find the following: The two tracts of land described in the deed from Olive-Sternenberg Lumber Company to the State A Texas were appropriated and used by the State of Texas for highway purposes which was the main highway from Kountze to Woodville and was known as Highway 40 and Highway 69. Such was a State highway and was part of the State Highway System. Part of this old highway, about % of a mile in length, more or less, was relocated and moved to the east by the State about 1957. From 1957 to time of trial the entire tract of 1.64 acres was enclosed by a chain link fence eight feet high built by Hardin County completely blocking the old highway, closing the old highway to the use of the public and the State Highway Commission. By such conveyance by the State of Texas to Hardin County of the 1.64 acres and the closing of the old highway, the State of Texas thereby abandoned such part of the highway right-of-way.

That part of the old right-of-way to the north and to the south of the 1.64 acres was not abandoned. That part of the old right-of-way to the east of the 1.64 acres was abandoned when the 1.64 acres was abandoned. Defendants had affidavits in support of such facts of abandonment, but the State of Texas only introduced its pleadings, including the exhibits thereto, a map, and then rested. Therefore, we find evidence supporting the trial court’s finding that the part of the 2.115 acres adjoining the old abandoned roadway and in the old right-of-way was abandoned.

Appellant states its position in its brief as follows:

“Both parties, in their motion for summary judgments, stated there were no material fact issues involved in this.
“The question of law in this case is, to wit:
“(a) Whether Art. 6673a, R.C.S.T., applies and controls the law in this case, or
“(b) Whether Art. 6674q-9, R.C.S. T., applies and controls the law in this case.
“The State of Texas contends that Art. 6673a, R.C.S.T., applies and controls the law of this case, because:
“(1) It is the only law setting out the manner in which the State could divest itself of title to the 2.115 acres of land in controversy.
"(2) Art. 6673a, pg. (3) (a); Tf title to the State was acquired by donation, convey to the grantor, his heirs or assigns; or if acquired by purchase by a county or city, convey to the county or city, or to the grantor, his heirs or assigns at the request of the county or city.
“(3) Art. 6673a, R.C.S.T., Section 6; (in part) - Acts 1931— 42nd Leg., p. 170, ch. 99; Acts 1953, 53rd Leg., p. 795, eh. 323, Sec. 1. (General Session Laws of 1953)
“(4) Art. 6673a, R.C.S.T., Sec. 2, Acts of 1953, ch. 323, S.B. 175, amending Art. 6673a, approved June 8, 1953; 53rd Leg., p. 797, ch. 323, provides as follows, to wit: ‘Sec. 2. That all laws and parts of laws in conflict with the provisions of this Act he, and the same are repealed/ (General Session Laws of 1953)
“(5) Art. 6673a supercedes Art. 6674q-9 because of the repealing of conflicting laws clause and because Art. 6674q-9 was amended by Acts of 1943, 48th Leg., p. 494, ch. 324, Sec. 1; that Art. 6673a was the Acts of 1931, 42nd Leg., p. 170, ch. 99; Acts 1953, 53rd Leg., p. 795, ch. 323, Sec. 1.
“ ‘Express Repeal — 53 T.J.(2d), Sec. 96, pp. 141-142:
“ ‘It may be general or special. A general repeal declares, in substance, that all acts and parts of acts in conflict with the new enactment are repealed. * * *’ ”

Art. 6673a, R.C.S.T., was first enacted by the legislature by House Bill No. 1014, ch. 99, 42nd Leg., Regular Session, approved May 5, 1931, and provides for the return to the owner of land donated by him to the State where the State Highway Commission had acquired any land to be used as a right-of-way for any State highway and thereafter the route of such highway was no longer needed for such highway or for use by citizens as a road, the State Highway Commission may recommend to the Governor that such land be returned by proper deed to the person or persons from whom the same was received. The amendment of Art. 6673a, R.C.S.T., by the Acts of 1953, 53rd Leg., p. 795, ch. 323, sec. 1 (General Session Laws of 1953) changed the provisions of such act when the land for right-of-way purposes was purchased by the State Highway Commission, but did not change the provision that where the right-of-way is no longer needed for such purposes the State Highway Commission may recommend to the Governor that he execute a proper deed relinquishing and conveying the State’s right, title and interest in such real property (when title to the State was acquired by donation) to the grantor’s heirs or assigns. Such act further provides that all laws and parts of laws in conflict with provisions of this act be and the same are hereby repealed.

Art. 6673a outlines the procedure when the State Highway Commission determines that the right-of-way is no longer needed as a right-of-way for the State Highway Commission and is no longer needed for the use of citizens as a road, that upon the recommendation of the State Highway Commission when the State has paid no money for the right-of-way that the Governor will quitclaim or relinquish the land and the right-of-way to the donor thereof, his heirs or assigns.

Art. 6674q-9 was originally passed in 1932 by the 42nd Leg., House Bill No. 2, 3rd Called Session, p. 15, providing that when the right-of-way or any part thereof has been abandoned by the State of Texas for all public road purposes, and such right-of-way or any part thereof was donated by the owner of the land for right-of-way purposes then, and in that event, the fee simple title shall vest in said owner, his heirs or assigns. The act also provided that all laws and parts of laws in conflict with it be and the same are hereby repealed.

In the amendment of Art. 6674q-9 by the Acts of 1943, 48th Leg., p. 494, ch. 324, sec. 1, S.B. No. 89, it provided that when the right-of-way or any part thereof pertaining either to a State highway or a lateral road has been abandoned by the State of Texas that because of the abandonment of such road for such public purposes and such right-of-way or any part thereof was donated by the owner of the land for right-of-way purposes then, in that event, the title to said right-of-way shall vest in said owner, his heirs or assigns.

The abandoning of a highway by the State of Texas is a different thing from the State Highway Commission or the State of Texas determining that such right-of-way is no longer needed for highway purposes and no longer needed for use of citizens as a road. Art. 6673a provides for procedure when the road is no longer needed. Art. 6674q-9 provides that in the event of abandonment of the right-of-way for such public purposes the title to the said right-of-way shall vest in the said owner, his heirs or assigns.

These two acts are in pari materia and are to be construed as one act but whether construed as one act or as distinct aets they can be fairly reconciled and each given its intended operation. Cole v. State ex rel. Cobolini, (1914), 106 Tex. 472, 170 S.W. 1036. Both acts deal with a right-of-way that has been donated. One act provides that if the right-of-way is no longer needed, then on recommendation of the State Highway Commission the Governor will relinquish by deed the right-of-way to the former owner, his heirs or assigns. The other act, 6674q-9, provides when the owner donated the right-of-way and the right-of-way has been abandoned the title shall vest in the former owner, his heirs or assigns. These are two distinct things. With highways being moved, there are many highways and lateral roads no longer needed by the State Highway Commission or by the public, but this does not mean that they have been abandoned. To abandon a highway right-of-way means that there has been a complete and final giving up, letting go or withdrawal from the old right-of-way. In the amendment of Art. 6674q of 1943 the legislature said: “This Act shall be cumulative of all other valid laws.” However, there is no antagonism or conflict in the provisions of the two respective statutes. Art. 6673a does not expressly repeal Art. 6674q. Lasater v. Lopez, 110 Tex. 179, 217 S.W. 373 (1919).

“Repeal of laws by implication is not favored. 39 Tex.Jur., § 75, p. 140; 59 C.J., § 510, p. 905. In the absence of an express repeal by statute, where there is no positive repugnance between the provisions of the old and new statutes, the old and new statutes will each be construed so as to give effect, if possible, to both statutes. 39 C.J. § 75, p. 140.” Wintermann v. McDonald, Land Commissioner, 129 Tex. 275, 102 S.W.2d 167, 171 (1937).

As said in Gaddis v. Terrell, 101 Tex. 574, 110 S.W. 429 (1908):

“Though a provision in an act repealing conflicting laws shows that the Legislature had in mind that some law was to be repealed, the courts must find a repugnancy between a prior law and the act before they can find that the act repeals the prior law.”

Under the facts of this case, Art. 6674q, R.C.S.T., was applicable to that part of the old right-of-way abandoned by the State of Texas and title to same vested in defendants as assignees of Olive-Sternenberg Lumber Company.

Plaintiff’s points of error contrary to the foregoing are each and all overruled.

However, the State of Texas was entitled to summary judgment against the defendants for the title to and possession of the 33.61 acres, save and except (a) the 1.64 acres conveyed to Hardin County, and (b) that part of the 2.115 acres of land described in the deed from Cecil Smith, et al., to Tom Easley, et al., within the 33.61 acres and old right-of-way as against the plaintiffs in this case. Defendants were entitled to summary judgment that the State take nothing against the defendants for the title to and possession of that part of the 2.115 acres above referred to in the old highway right-of-way. Accordingly, the judgment of the trial court is reversed in part and reformed as follows: That Plaintiff, the State of Texas, recover from the defendants and each of them the title to and possession of the 33.61 acres, save and except (a) the 1.64 acres conveyed to Hardin County, and (b) that part of the 2.115 acres described in the deed from Cecil Smith, et al, to Tom Easley, et al, within the 33.61 acres but that the State of Texas take nothing as against the defendants as to the title to and possession of that part of the 2.115 acres of land within the 33.61 acres as to which the State of Texas is divested of all of its rights, title and interest therein and same is vested in the defendants. The recovery by the defendants against the plaintiff for the title to and possession of the entire 2.115 acres is proper and correct and is affirmed.

Except as sustained by reformation of the trial court’s judgment, all of plaintiff’s points of error are overruled.

As so reformed, judgment is here rendered, with all costs adjudged against the defendants.


source: Caselaw Access Project

author: PRESLAR, Justice.

license: Public Domain

text:
    Jean WATTS, Appellant, v. John J. WATTS, Appellee.
    No. 5667.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 30, 1964.
    Rehearing Denied Feb. 17, 1965.

      Storey, Armstrong & Steger, Hugh L. Steger, John K. DeLay, Jr., Dallas, for appellant.
    John J. Watts, Odessa, for appellee.
   PRESLAR, Justice.

This is a divorce action brought by the husband, as plaintiff, and to which the wife filed a cross-action. The wife is appellant from a judgment of the court, sitting without a jury, awarding the husband a divorce, custody of their seven-year-old daughter, costs of court, and upholding an antenuptial agreement which had the effect of awarding all property, except a note and personal gift items, to the husband, and causing the wife to pay her own attorney’s fees. We affirm as to the granting of the divorce and award of child custody, and reverse and remand as to the property and attorney’s fees.

Appellant raises as her first point of error the granting of divorce to the plaintiff-husband, and contends that the trial court abused his discretion in failing to apply the doctrine of comparative rectitude and failing to grant her a divorce on her cross-action as the party “less guilty”. It is well settled that the doctrine of comparative rectitude is recognized in Texas. Under it, where b'oth parties are found guilty of cruel treatment, the court has the duty of weighing the conduct of the respective parties, and is authorized to grant a divorce to the one who is less guilty. Marr v. Marr, Tex.Civ.App., 191 S.W.2d 512; Beck v. Beck, 63 Tex. 34; Jones v. Jones, 60 Tex. 451; McFadden v. McFadden, Tex.Civ.App., 213 S.W.2d 71; Thompson v. Thompson, 380 S.W.2d 632, Tex.Civ.App. No findings of fact were requested or filed. The decree is likewise silent as to the ground for divorce found by the court. Therefore, we can only speculate as to the basis on which the judgment was granted, and must affirm it if it has any support in the evidence.' A study of the Statement of Facts indicates that the court could have found either party entitled to a divorce. Under such state of the record, this court cannot say that the trial court abused his discretion. The result reached by the application of the doctrine is a matter within the sound discretion of the trial court. McFadden v. McFadden, and Thompson v. Thompson, supra.

A contention of great concern is appellant’s second point, in which it is contended that the trial court erred in awarding the seven-year-old daughter of the marriage to the husband. That this is a matter within the broad discretion of the trial court is so well established as to require no citation of authorities, but it is a matter for close scrutiny by the appellate courts for abuse. The test to be applied by this court is not what we would have done under the circumstances — whether we would have reached the same result — but whether the result reached by the trial court amounted to an abuse of discretion to the extent that it should be reversed. Again, we are faced with the fact that no findings of fact were requested or filed. Under such circumstances we must affirm the judgment if it has any support in the evidence. Scott v. Fort Worth Natl. Bank, Tex.Civ.App., 170 S.W.2d 576; Cockrell v. Cockrell, Tex.Civ.App., 298 S.W.2d 178; Madden v. Madden, Tex.Civ.App., 365 S.W.2d 427. Appellant points out that ordinarily the father is not awarded a daughter of tender years unless it is found that the mother is unfit. There is no such finding here; in fact, there is no finding as to any fact for us to weigh against the record and make a determination of its correctness. Reviewing all the great volume of testimony in the light of what was at that time best for the child, we are unable to conclude that the action of the trial court amounted to an abuse of discretion.

The trial court found that the parties had entered into a parol antenuptial agreement under which the husband was to pay all household expenses and give the wife one thousand dollars per month in lieu of any right or claim to any community property. It was held that by her acceptance of such amount the wife had ratified such agreement, and by remaining silent when it was her duty to speak had waived her right to any community property, and that she is estopped now to claim any property. We think it unnecessary to discuss ratification, estoppel or waiver, for under the established law the oral antenuptial agreement was void from its inception. It did not meet the requirements of Article 4610 or Article 4611 of the Statutes (Vernon’s Texas Civil Statutes). Article 4610 provides in part:

“ * * * and in no case shall they enter into an agreement, or make any renunciation, the object of which would be to alter the legal orders of descent, either with respect to themselves, in what concerns the inheritance of their children or posterity, which either may have by any other person, or in respect to their common children; nor shall they make any agreement to impair the legal rights of the husband over the persons of their common children. * * *»

The latest condemnation of an antenuptial contract by our Supreme Court is the case of Burton v. Bell, 380 S.W.2d 561 (June 1964). Cases cited by appellee concerning agreements as to property in existence at the time the agreements are made are to be distinguished from the instant case attempting to fix the character of property to be acquired in the future. It is undisputed that the wife was to buy all of her clothing out of the monthly stipend — necessities which the law obligates the husband to furnish — so that the husband is not now entitled to have these payments deducted from the wife’s share of the community. It is necessary to remand this portion of the case to the trial court for a determination of what the community property consists of, and to divide it between the parties in accordance with Article 4638. Remand, rather than rendition, is necessary under Rule '434, because the trial court must find the facts as to the community property. We cannot find facts in the first instance, for that is within the sole province of the trial court. Likewise, remand is necessary as to the matter of allowance of attorney’s fees for the wife. The record reflects that she is entitled to them, and apparently the trial court was of such opinion, but they were ordered paid out of her funds derived from the parol antenuptial agreement. Having been determined on an erroneous theory, it is necessary that the issue be tried again.

The judgment is affirmed as to the granting of the divorce and the award of custody of the child of the marriage, and it is reversed and remanded as to the division of property and the award of attorney’s fees. Appellant’s other points of error are overruled.

ON MOTION FOR REHEARING

Both parties have filed motions for rehearing. The motion of appellee, John J. Watts, is overruled without opinion. The appellant’s motion for rehearing is also overruled, with these additional comments.

Appellant has filed her request of this court for findings of fact. This being a case in which the Supreme Court does not have jurisdiction of an application for writ of error, the rules do not require findings of fact by the Court of Civil Appeals (Rule 453, Texas Rules of Civil Procedure), and we decline to do so, for it would be of no benefit to appellant in the further prosecution of her case.

In her motion for rehearing, appellant expresses concern that there is an implied finding by the trial court that the property here involved is not community property. We see no such implication. The appellee pleaded that all the property was his by virtue of the parol antenuptial agreement. He alleged, in the alternative, that if the court does not uphold the agreement, then certain of the property is not community property. In upholding the agreement, the court never reached the alternative plea. The issues as to which property might be community and which might be separate were never reached, for the court said, in effect, it matters not what the nature of the property may be, for under the agreement all of it goes to the husband. This agreement we have found to be void, so that the parties now stand before the court for a new trial as to what their property consists of, its nature, and a division of it. Appellant urges there are certain undisputed facts about some items of property which this court should determine. We think that justice would be better served if we did not attempt this piece-meal determination, but left the parties in what may be described as the normal situation for a determination of their property rights, now that the court is free of the antenuptial agreement issue.


author: FANNING, Justice.

text:
    Russell H. SITTON et ux., Appellants, v. AMERICAN INSURANCE COMPANY, Appellee.
    No. 7653.
    Court of Civil Appeals of Texas. Texarkana.
    April 20, 1965.
    Rehearing Denied May 11, 1965.
    Charles Ben Howell, Dallas, for appellants.
    Royal H. Brin, Jr., Fred K. Newberry, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellee.
   FANNING, Justice.

Appellants Sittons, who were grantors in a deed, brought suit for damages allegedly sustained by the alleged fraudulent alteration of their deed, against the grantees Moorman, American Title Company, Mrs. Brown, the Notary Public who took their acknowledgments, who was an agent and employee of the title company, Mrs. Brown’s husband, appellee American Insurance Company, the surety on the notary’s official bond, and certain other named defendants.

After overruling motions for summary judgment made by the Moormans, Mrs. Brown and her husband, and American Title Company, the trial court sustained the motion for summary judgment of ap-pellee surety company. The appellants have appealed from the summary judgment granted in favor of appellee surety company.

The appellants appeared in person before the notary and their acknowledgments to the deed in question were taken and certified to by the notary in a lawful and proper manner. Such events occurred on Sept. 7, 1962, and the notarial certificate executed on such date bears the date of Sept. 7, 1962.

Appellants contend to the effect that the deed was left with the notary pursuant to an understanding that the notary would forward the same to the county clerk of Dallas County for recording; that the deed did not reach the county clerk’s office for two weeks; that after said execution and acknowledgments and making of the notarial certificate of Sept. 7, 1962, and before said deed reached the county clerk’s office, the names of the grantees Moorman were erased from five places in the deed and the names of Trout and wife were substituted, and that such erasures and changes were made by the notary or some one else without the consent of- the Sittons, and the Sittons made various allegations as to their claimed damages allegedly being proximately caused by the acts complained of, and as against appellee surety company sought recovery of the principal amount of the notary’s bond.

This is not a case where a false acknowledgment or a false notarial certificate is involved. The two Texas cases cited by appellants, Brittain v. Monsur, Tex.Civ.App., 195 S.W. 911, wr. dism. (1917), and Standard Accident Insurance Company v. State, Tex.Civ.App., 57 S.W.2d 191, wr. dism. (1933), involved situations in which the grantors were ficticious and of course did not appear before a notary, so that the notaries’ certificates were false. The two cases cited above are not in point with the facts in the case at bar.

It is not any part of the official duties of a Notary Public in Texas to transmit or deliver acknowledged instruments to the county clerk for recording. If there was any action or agreement in this respect by the notary, Mrs. Brown, it was not in the line of her official duty as a Notary Public.

Likewise, if Mrs. Brown altered or permitted the alteration of the deed, (which was denied by her) after it had been lawfully acknowledged before her by the Sit-tons and properly certified to by her, such acts or omissions on her part (if any) occurred after her official duties as a notary in the taking of the acknowledgments of the Sittons and certifying thereto had ceased.

In 17 A.L.R.2d, Sec. 4, Notary Public or Bond-Liability, p. 956, it is stated in part as follows:

—-“Notary acting in dual capacity; liability of surety.
“The liability of the surety of a notary for the latter’s act depends, in part, upon whether the act complained of was in the line of his official duty as notary, and where the act was performed in a dual capacity it has often been held that the surety is not responsible.
“Thus, the notary’s surety was held not liable in State ex rel. Zuber v. Hunter (1932, Mo.App.) 46 S.W.2d 216, where the notary, after taking the acknowledgment of the makers of a promissory note and mortgagors of a deed of trust, altered them so as to make them payable to himself and subsequently sold them to the plaintiff, the court saying that there was no violation by the notary of any of his official! duties, which merely consisted of taking and certifying the acknowledgment of the makers of the deed of trust, and that the notary’s wrongdoing occurred after his official duties in the transaction had ceased. * * * ”

We hold that the trial court correctly granted appellee’s motion for summary judgment.

The judgment of the trial court is affirmed.


author: SHARPE, Justice.

text:
    Leon W. MEINEN et ux., Appellant, v. Jack Edward MERCER, Appellee.
    No. 63.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 15, 1965.
    Rehearing Denied May 13, 1965.

      Ben L. Adams, Jr., and Warren L. Eddington, of Adams, Eddington, Zimmerman, Friloux & Bobbitt, Houston, Pollan & Nicholson, Rosenberg, for appellant.
    Howell E. Stone, of Talbert, Giessel, Cutherell & Barnett, Houston, for appellee.
   SHARPE, Justice.

This is an appeal from a take-nothing judgment rendered against appellants, Leon Meinen and his wife Leslie Meinen, who were plaintiffs in the trial court, and in favor of appellee, Jack Mercer, who was the defendant therein.

The Meinens brought this suit to recover damages for injuries sustained as a result of Mercer driving his vehicle into the rear end of their car while it was stopped at an intersection red light stop signal. Trial was to the court and jury. Since Mercer was a minor at the time of the accident and the trial, he was represented by a Guardian ad Litem appointed by the court as well as by other counsel who appeared for him.

The court submitted fifteen special issues to the jury, the first eleven of which related to issues of liability and the last four to damages. Special issues 1 through 8 involved Mercer’s alleged conduct, in substance, as follows: (1) That he followed the Meinen car too closely; (3) that he failed to keep a proper lookout for vehicles ahead of him; (5) that he was driving his car at an excessive rate of speed; and (7) that he failed to make a timely application of his brakes; issues 2, 4, 6 and 8 were proximate cause issues conditionally submitted in connection with the above-mentioned issues and were not answered because the jury did not answer any of the issues upon which they were predicated favorably to the Meinens. Special Issue 9 inquired about the alleged failure of Mr. Meinen to keep a proper lookout on the occasion in question and was answered favorably to appellants. Issue 10, inquiring as to proximate cause, conditionally submitted in connection with Issue 9, was not answered. By its answer to Special Issue 11, the jury found that the occurrence in question was the result of an unavoidable accident. By its answers to special issues 12 through IS, the jury found the Meinens’ damages to be an aggregate of $6,228.00.

The Meinens assert seven points of error. Points I through V allege that the jury findings in answer to special issues 1 through 8 and on Issue 11 are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. Point VI complains of the action of the trial court in overruling appellants’ motion for judgment non obstante veredicto. Point VII complains of the overruling of appellants’ motion for new trial.

The basic facts are undisputed. On Sunday, March 26, 1961, shortly after 11 o’clock, A.M., the Meinens departed from their home in Houston, Texas, in their new Pontiac Tempest automobile, on a trip to Archer, Texas, with Mr. Meinen driving and his wife sitting in the right front seat. They proceeded in a westerly direction on U. S. Highway 59 and as they approached its intersection with Spur 58 in Sugarland, Texas, the electric signal light there turned to red. Mr. Meinen stopped the car pursuant to said signal and it was sitting still when the vehicle driven by Jack Mercer, who was then 17 years of age, struck it from the rear and knocked it through the intersection some 40-60 feet. The Meinens did not see the Mercer car until after the impact and all of the testimony as to what happened immediately prior to the collision comes from Jack Mercer, the appellee, who testified when called by appellants as their first witness and later as a part of his defense.

Jack Mercer testified, when he first took the stand, in substance, as follows: That on the date in question he left his home in Sugarland, Texas, drove down Main Street, stopped at the intersection of said street with U. S. Highway 59, and then turned to his right, or toward the west on said highway, at a point approximately 125 yards, or 375 feet, from the place where the collision thereafter occurred, at which last-mentioned point there is a left turn lane and two lanes for westbound traffic. Mercer said he was travelling about 30 miles an hour when he saw the signal light at the intersection of U. S. Highway 59 and Spur 58 change from green to amber, at about 25 miles per hour when the light changed from amber to red, and at about 20 miles per hour when his car struck the Meinens’ car. Mercer further said that it had been raining most of the day and the highway was slick. It was not raining at the time of the collision and he was not operating his windshield wipers on said occasion. Mercer said he first applied his brakes after the signal light turned red when he was about 50 feet from the Meinen car. He first observed the Meinen car after he had applied his brakes and his car started sliding. He said he was familiar with the said intersection, had travelled over it many times, and knew that he had to stop for the red light on the occasion in question. When asked why he did not stop, he said, “Well, the first time I applied my brakes, my car fishtailed, and I let up, and when I stepped down all the way, my power brakes ■ — the wheels locked.”

When he took the witness stand the second time as a witness in his own behalf, Mercer testified, in substance, as follows: When he turned his car on to U. S. Highway 59 he drove it directly to the lane in which the collision later occurred. At that time he did not observe the Meinen vehicle. He explained his use of the term “fishtail” as follows: “Well, the first time I stepped on my brakes, is when I saw the light turn red, my car kind of slid, the back end of it slid around, and then, I let up on my brakes, and stepped on them again, that is when I started sliding.” Mercer testified further as follows:

“Q. Now, then, why didn’t you see that the road was completely blocked up there?
“A. I can’t answer that, I don’t know.
“Q. Were you looking?
“A. Evidently I wasn’t looking right straight ahead, I don’t remember —I don’t remember seeing the Meinen car until I hit it.
“Q. If you would’ve looked straight ahead, if you would’ve looked straight at the traffic control signal, you said you would’ve saw that?
“A. Yes, sir.
“Q. And you said that you saw these two cars on the right, and two cars on the left?
“A. I saw them after I noticed them —after I started sliding, I noticed the Meinen car after I started sliding, but when I turned on the highway, I did not see the Meinen car. I did not see them come to a stop.
“Q. Well, when you turned on the highway, did you see that the road was blocked there in front of you?
“A. No, sir.”

On cross-examination Mercer conceded that he saw the caution light of the signal at the intersection when he was about 90 yards away from it and that if he had taken his foot off the accelerator his car would have come to practically a complete stop without applying his brakes.

Disposition of this case will be expedited by first considering appellants’ Point VI under which it is contended that the trial court erred in overruling the Meinens’ motion for judgment non obstante veredicto. We sustain this point on the basis that the evidence conclusively established that Mercer failed to keep such proper lookout for other vehicles ahead of him proceeding in a westerly direction and that he failed to make timely application of his brakes on the occasion in question as would have been done by a person of ordinary prudence and that such negligence in each instance was a proximate cause of the collision with the Meinen car. Under such conditions the issue of unavoidable accident was not in the case and the jury finding as to same may properly be disregarded.

In Hoey v. Solt, 236 S.W.2d 244 (Tex.Civ.App.1951, n. w. h., opinion by Norvell, J.) a rear-end collision case in which the Court of Civil Appeals held that negligence and proximate cause were conclusively established against the driver of the vehicle approaching from the rear, at page 246 of the opinion, the court said:

“It can not be gainsaid that one who fails to stop his automobile in response to a traffic signal, but propels the same into the rear end of an automobile which has stopped in obedience to the signal, is guilty of negligence proximately causing injury or damage unless such conduct is excused by some extenuating circumstance or condition.”

In the cited case the jury had found that the action of the driver of a third automobile in crowding defendant from the right was the sole proximate cause of the collision between the automobile of the defendant and that of the plaintiffs. At page 246 of the opinion, the court said:

“Automobile drivers on city streets must for their own safety necessarily notice cars which drive along side them, but this circumstance cannot excuse them from failing to heed traffic lights and see vehicles immediately ahead of them. Even if the actions of the third driver be considered a proximate cause of the collision, it can not be reasonably maintained that such actions constituted the sole proximate cause thereof. Under the facts of this case, it is conclusively established that defendant was negligent and that such negligence was a proximate cause of the collision. In applying the standard of a ‘person of ordinary prudence/ the discretion or authority of a jury is admittedly extensive, but it is not without limit. This creature of the law and standard of comparison must conform to a pattern of behavior in keeping with the words used to describe him. He must be law-abiding and can not be wholly imprudent.”

In Caraway v. Behrendt, 224 S.W.2d 512 (Tex.Civ.App.1949, n. w. h.) at page 514 of the opinion, the court said:

“The rule is well stated in Vol. 2 of Blashfield’s Cyclopedia of Automobile Law, and Practice, Perm. Ed., § 942, p. 94, which reads as follows :
‘A motorist has right to follow another motorist at reasonable and safe distance. However, he must govern his speed or keep back a reasonably safe distance so as to provide for the contingency of a car in front suddenly stopping, maintaining a proper lookout for the car immediately preceding him, and so that he can stop without a collision, or can turn out sufficiently to pass the vehicle in front without going across the street in the way of traffic approaching from the opposite direction, as that will naturally result in collision with such traffic.’
“Again, the rule is well stated in Rankin v. Nash-Texas Co., Tex.Civ.App., 73 S.W.2d 680, 683:
“ ‘It may be stated as a wise and salient rule of law that, in trailing other automobiles, a motorist must govern his speed or keep back a reasonably safe distance so as to provide for the contingency of the automobile in front suddenly stopping or decreasing its speed, so that he can stop or decrease his speed to avoid a collision, or can turn out safely to pass the vehicle in front. One cannot run down a vehicle proceeding in the same direction, without having been guilty of some negligence in the operation of his own, unless it appears that the collision was due to contributory negligence of the driver of the other vehicle. The collision, under ordinary circumstances, furnishes some evidence of negligent acts or omissions on the part of the driver of the trailing vehicle, which ordinarily calls upon the driver of the rear vehicle to explain and usually presents a question of fact for the determination of a jury.’ ”

The Meinen car was ahead of Mercer on U. S. Highway 59 for all of the time that Mercer was travelling the distance of approximately 375 feet from the street where he turned onto such highway until Mercer rear ended the Meinen car. If Mercer had looked, as a reasonably prudent person would have done under the circumstances, he would have observed the Meinen car long before he applied his brakes and, according to his testimony, started sliding. Mercer was under a duty to keep a proper lookout for vehicles ahead of him on U. S. Highway 59. His failure to see the Meinen car until after he applied his brakes and started sliding (or until he hit the Meinen car, as he testified at one point) constitutes negligence as a matter of law. Hoey v. Solt, supra; Musslewhite v. Gillette, 258 S.W.2d 104 (Tex.Civ.App.1953, n. w. h.); Lackey v. Gulf, C. & S. F. Ry. Co., 225 S.W.2d 630 (Tex.Civ.App.1949, n. w. h.); Standard Paving Co. v. Webb, 118 S.W.2d 456 (Tex.Civ.App.1938, n. w. h.); Schawe v. Leyendecker, 269 S.W. 864 (Tex.Civ.App.1925, n. w. h.).

Our conclusion that Mercer’s negligence in failing to keep a proper lookout was a proximate cause of the collision in question is not affected by his testimony that the highway was slippery on the occasion in question. Some of the general rules concerning the operation of a vehicle on a slippery street or roadway, may be stated as follows:

“The driver of an automobile should exercise, in operating the vehicle, a degree of care that is commensurate with existing road conditions, so as to keep the vehicle under control on a slippery street or road and not cause injury to another vehicle by skidding into it. An operator will not establish freedom from liability merely by showing that his vehicle had skidded.” 7 Tex.Jur.2d, Automobiles, (Effect of Road Condition) § 90, p. 422.
“The driver of a car must exercise care commensurate with the conditions existing to keep it under control on a slippery street or road, so as not to cause injury to another vehicle or an occupant thereof by skidding into it, particularly where the car is being driven on a grade or curve, or at an intersection, or where it is proceeding at a considerable speed. While skidding is not in itself, and without more, evidence of negligence, skidding may be evidence of negligence if it appears that it was caused by a failure to take reasonable precautions to avoid it when the conditions at the time made such a result probable in the absence of such precaution. The mere fact, therefore, that an automobile skids does not of itself constitute evidence of negligence upon the driver’s part so as to render the doctrine of res ipsa loquitur applicable. Skidding is not an occurrence of such uncommon or unusual character that, unexplained, it furnishes evidence of the driver’s negligence. The question is one of the exercise of care; if the requisite degree of care is exercised, no liability results from the skidding. However, the fact that the skidding of an automobile, considered by itself as an isolated factor unrelated to surrounding circumstances, is not evidence of negligence, does not mean that skidding always constitutes a defense to other proven acts of negligence.” 5A Am.Jur., Automobiles and Highway Traffic, (Skidding) § 341, pages 439-441.
“The principal inquiry in cases of skidding is as to the driver’s conduct prior to such skidding. The speed of the automobile and the care in handling the automobile, particularly in the application of brakes, are factors to be considered in determining whether he exercised due care. When there is ice on a hard-surfaced highway, drivers are charged with the duty to take care and caution in the operation of their vehicles proportionate to the known and obvious dangerous condition of the highway.” 5A Am.Jur., Automobiles and Highway Traffic, § 342, p. 441.
“Nevertheless, skidding may constitute negligence or evidence of negligence where it appears that it was caused by a failure to take reasonable precaution to avoid it when the conditions at the time made such a result probable in the absence of such precaution.” 8 Am.Jur.2d, Automobiles and Highway Traffic, (Slippery pavement; skidding.) § 689, p. 239.

In the case of Horne Motors v. Latimer, 148 S.W.2d 1000 (Tex.Civ.App., 1941, wr. dism., judg. corr.), a rear end collision was involved which occurred after nightfall with misting rain and wet pavement just within the city limits of Edgewood, Texas. The jury found a number of acts of negligence against the driver of the rear vehicle proximately causing the collision and damages to a passenger in his car. One of such acts of negligence was on the part of the driver of the rear vehicle in failing to keep a proper lookout for trucks driving in the same direction on the highway at the time, which negligence was a proximate cause of the collision. Another act of negligence on the part of said driver was in driving his car at an excessive rate of speed which was negligence and a proximate cause of the collision with the vehicle ahead of him and of the injuries to said passenger.

The driver of said rear vehicle contended that the accident in question was due to a new and independent cause in that just prior to the collision with the car ahead of him another car travelling in the opposite direction with bright headlights had obscured the vision of the driver of said rear vehicle thus constituting a new and independent cause of the collision. Complaint was made that the element of intervening cause had not been embodied in the preceding issues on defendant’s negligence and proximate cause concerning which plaintiff had the burden of proof. At page 1004 of the opinion in referring to the alleged blinding headlights of said automobile approaching from the opposite direction, the court said:

“At most, they were but a concurring or contributing cause. Texas Power & Light Co. v. Culwell, Tex.Com.App., 34 S.W.2d 820; Texas Public Service Co. v. Armstrong, Tex.Civ.App., 37 S.W.2d 294, writ refused; Gulf, C. & S. F. Ry. Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659. Again, a new and independent cause must be one incapable of being foreseen by the original wrongdoer, in the exercise of ordinary care. Under the present facts, at the speed he was maintaining, and in the interval after passing car No. 1, Mr. Berry could have avoided the collision, but for the approach of car No. 2 (not shown as having blinding lights). The latter vehicle was properly on the road; it was a common hazard of nighttime driving, and a factor which Berry frankly admitted he should reasonably have anticipated. ‘The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.’ Mexican Nat. R. Co. v. Mussette, 86 Tex. 708, 26 S.W. 1075, 1080, 24 L.R.A. 642; Missouri-Kansas-Texas R. Co. of Texas v. McLain, 133 Tex. 484, 126 S.W.2d 474; Johnson v. Smither, Tex.Civ.App., Ft. Worth, 116 S.W.2d 812; Reeves v. Tittle, Tex.Civ.App., 129 S.W.2d 364, writ refused; and in Restatement, Torts, Sec. 449, p. 1202, is stated: ‘If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tor-tious or criminal does not prevent the actor from being liable for harm caused thereby.’ ”

In Chicago, Rock Island & Pacific R. Co. v. E. D. Goodson, 242 F.2d 203 (5th Cir. 1957), a case arising in the State of Texas, at page 207 of the opinion, the court said:

“Finally, the railroad company complains of the failure of the trial court to include in its charge to the jury instructions on new and independent cause, sole proximate cause, and unavoidable accident. There was no evidence in the record from which the jury would have been authorized to find that any intervening act of the plaintiff or other person or agency occurred which, independently of the action of the backed-up water, brought about the explosion. ‘The intervention of an unforeseen and unexpected cause is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates with the independent cause in the resulting injury.’ Texas Power & Light Co. v. Culwell, Tex.Com.App., 34 S.W.2d 820, 821; Texas Public Service Co. v. Armstrong, Tex.Civ.App., 37 S.W.2d 294.”

In the case of Brumage v. Blubaugh, 204 Md. 144, 102 A.2d 568 (Court of Appeals, Maryland, 1954,) the court said:

“ ‘The modern automobile, because of its speed, weight, power, and design and the operation of physical laws, is peculiarly subject to the danger of uncontrollable and erratic deviations from its ordinary course. Since it is held on its course by the traction between its tires and the road surface, whatever lessens that traction makes it more difficult to control, and increases the hazard of its skidding. That tendency, because of the power, weight and potential speed of such machines, carries a constant threat to all users of modern highways and imposes upon the drivers of automobiles the duty of exercising at all times care and vigilance to avoid increasing the danger of skidding created by any condition of the road surface which lessens the traction or grip of the machine on it by adapting the management of the car to the conditions. It is a matter of common knowledge chargeable to every one who operates an automobile on a public highway that the danger of skidding on a wet slippery surface increases as the speed increases. And not only does the probability of skidding increase under such conditions as the speed increases, but the seriousness of the possible consequences to other users of the highway increases proportionately. It is also obvious that any sudden swerving from a straight line by an automobile driven at high speed over a wet slippery street increases the probability of skidding, and that the driver is therefore under a constant duty to use all reasonable care to discover and avoid conditions which may require such a movement. Fillings v. Diehlman [168 Md. 306, 177 A. 400], supra; Berry on Automobiles, § 247; 5 Am.Jur. 654.’ See also Stafford v. Zake, 179 Md. 640, 642, 20 A.2d 144.

Ceeder v. Kowach, 17 Ill.App.2d 202, 149 N.E.2d 766 (Appellate Court of Illinois 1958), involves facts very similar to the instant case. At page 767 of the opinion, the Court said:

“This is a personal injury action with verdict and judgment for defendant. Plaintiff has appealed.
“On January 26, 1954, about 3:15 P.M., plaintiff and defendant were driving their automobiles in a northeasterly direction on Ogden Avenue in Chicago. Both cars were in the same lane with defendant ten or fifteen feet to the rear. About one hundred feet west of the Kostner Avenue intersection, both cars were held up momentarily by traffic. When they started again defendant stayed about the same distance to the rear at a speed of ten to fifteen miles per hour. At the Kostner Avenue intersection plaintiff stopped his car for a red light and defendant’s car skidded on the wet pavement and the collision resulted.
“Plaintiff contends that the trial court should have directed a verdict in his favor. There is no claim of plaintiff’s contributory negligence but defendant contends the question of his negligence was for the jury. We think defendant was guilty of negligence as a matter of law since it is our opinion that he should have foreseen that plaintiff would probably have to stop for a red light; that traffic on adjoining lanes would prevent turning out of the way of plaintiff’s car; that he would have to apply his brakes; that his car would probably skid on the wet pavement if the brakes were applied too suddenly; and that if he were going too fast or was not far enough behind he would collide with plaintiff’s car.”

Mercer testified that on the day of the accident it had been raining or misting off and on all day and that he knew that the highway was slippery. It was clearly foreseeable that Mercer’s car might slide on the slippery pavement when he applied his brakes. He either weighed or should have weighed such slippery condition as he approached the Meinen car and the signal light in question. Since Mercer did not see the Meinen car until after he had applied his brakes and was within less than fifty feet of it, the slippery condition of the highway could not be a new and independent cause which destroys the causal connection between his negligence in failing to keep a proper lookout and the collision with the Meinen car. Horne Motors v. Latimer, supra; Harrison v. King, 296 S.W.2d 344 (Tex.Civ.App.1956, wr. ref., n. r. e., opinion by Pope, J.)

The evidence also conclusively established that Mercer failed to make such timely application of his brakes as would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances and that such negligence was a proximate cause of the collision in question.

Mercer conceded that he observed the caution or amber light at the intersection in question when he was about 90 yards from it; that such signal indicated “that the light is fixing to change, to be slowing down”; and that if he had taken his foot off the accelerator his car would have practically slowed to a complete stop without hitting the Meinen car, without applying the brakes; and that he did not apply his brakes until he was about 50-60 feet from the point of collision.

Article 6701d, Vernon’s Ann.Tex.Civ. St., section 33(c) provides in substance that vehicular traffic shall stop at a red light on the near side of an intersection or before entering a crosswalk or the intersection and remain standing until the green or “go” is shown alone. Meinen stopped his car at the red signal in question as he was required to do. Mercer could not ignore the fact that other cars were so required to stop and remain standing at such red signal, and he should have been operating his own vehicle in such manner as to stop it before colliding with the Meinen car, which was the first one facing said red light. Mercer was required to stop in the line of traffic in obedience to such signal just as was Meinen and other drivers of vehicles at such location. See Bass v. Stockton, 236 S.W.2d 229 (Tex.Civ.App.1951, n. w. h.). Under the conditions shown to exist here, the failure of Mercer to make a timely application of his brakes was negligence and a proximate cause of the collision with the Meinen automobile as a matter of law.

Since the evidence conclusively establishes that Mercer was guilty of negligence in failing to keep a proper lookout, and in failing to make a timely application of his brakes on the occasion in question, the issue of unavoidable accident was not in the case and should not have been submitted to the jury. Bransford v. Pageway Coaches, 129 Tex. 327, 104 S.W.2d 471 (1937); Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952) ; Hodges on Special Issue Submission in Texas, Sec. 21, page 57.

The remaining grounds of negligence alleged by the Meinens against Mercer do not affect the conclusions heretofore expressed. However, concerning the allegation that the Mercer car was following the Meinen car more closely than was reasonable and prudent under the conditions, we hold that the record is sufficient to support the negative finding of the jury thereon. The time element and distance involved are not sufficiently established by the record to enable us to say that Mercer was following too closely. It is possible, taking a view most favorable to Mercer under his testimony, that Mercer travelled substantially all of the distance from the point where he turned on Highway 59 to the point of impact with the Meinen car while it was stopped at the red signal light. Neither was it conclusively established that Mercer operated his vehicle at a greater rate of speed than that at which the same would have been driven by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances. The jury could have found that Mercer was negligent in such respect and that such negligence was a proximate cause of the collision. However, the jury was not required to do so under the conditions.

Appellants’ point number six is sustained as it is apparent that the trial court should have granted their motion for judgment non obstante veredicto for the reasons above-stated. It is also our view that even if we had not so held, we would have been required to sustain appellants’ points II, IV and V which contend that the answers to special issues 3, 7 and 11 (as a consequence of which issues 4 and 8 were not answered) were contrary to the evidence and to the great weight and preponderance thereof and were manifestly wrong and unjust; and, we would, for such reasons, have sustained appellants’ point VII that a new trial should have been granted. Fisher v. Franke, 321 S.W.2d 903 (Tex.Civ.App.1959, n. w. h.).

The judgment appealed from is reversed and is here rendered in favor of appellants for the amount of $6228.00, together with interest at 6% per annum from its date, August 27, 1963, and all costs in this court and in the court below.

Reversed and rendered.


author: BARROW, Justice.

text:
    Daniel R. GARZA, Appellant, v. Roberto R. GARZA, Individually and as Executor, and Angela R. Garza, Appellees.
    No. 14374.
    Court of Civil Appeals of Texas. San Antonio.
    April 14, 1965.
    Rehearing Denied May 12, 1965.

      Fidencio G. Garza, Jr., Falfurrias, for appellant.
    Lloyd, Lloyd, Dean & Ellzey, Alice, for appellees.
   BARROW, Justice.

This suit was filed by appellant, Daniel R. Garza, on October 4, 1963, to cancel and hold for naught an order of July 5, 1963, admitting to probate the last will of Ramon G. Garza, deceased, which was executed on August S, 1959. Appellant, a son of deceased, sought to set the will aside upon the theory of undue influence by testator’s other son and daughter, Roberto R. Garza and Angela R. Garza, who were the proponents of the will. The trial court granted proponents’ motion for instructed verdict after appellant had rested his case, and entered a take-nothing judgment.

The primary question before this Court is whether the record contains any evidence of probative force to raise an issue of fact that undue influence was exercised by Roberto R. Garza and/or Angela R. Garza in the execution of the will which had been admitted to probate.

Ramon G. Garza died in Brooks County on April 29, 1963, at the age of eighty-two years, and was survived by his three children, Daniel, Roberto and Angela. Under his will proponents, Roberto and Angela, shared his entire estate. Daniel was mentioned in this will as follows: “I have made no devise or bequest under this will to my son, Daniel R. Garza, because provision has been previously made for him by me.” Testator’s wife, Teresa, died intestate in 1953, and in 1955 a partition deed was executed by Ramon and his three children, whereby a specific 75.89 acres was conveyed in fee to Daniel, and the remaining interest in Teresa’s property was conveyed by Daniel to Ramon and proponents, jointly.

There is no direct evidence of any undue influence, but appellant urges that there is evidence of circumstances which are sufficient to raise a fact issue of undue influence under the holding in Long v. Long, 133 Tex. 96, 125 S.W.2d 1034. These asserted facts are: (1) the weakness of mind and body of testator because of his age and infirmities; (2) the unnaturalness of testator’s will by .exclusion of one of his three children; (3) the availability of opportunity for proponents to influence their father; (4) the circumstances surrounding the execution of the will; and (5) proponents’ management of testator’s business and affairs.

The Supreme Court in Rothermel v. Duncan, 369 S.W. 917 (1963), restated the rules applicable to an assertion of undue influence. The Court said: “Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence.”

It was further said: “In the absence of direct evidence all of the circumstances shown or established by the evidence should be considered; and even though none of the circumstances standing alone would be sufficient to show the elements of undue influence, if when considered together they produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the testator and resulted in the execution of the testament in controversy, the evidence is sufficient to sustain such conclusion. Barksdale v. Dobbins, Tex.Civ.App. (1940), 141 S.W.2d 1035, wr. refused. However, the circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence. Stewart v. Miller, supra. This is so because a solemn testament executed under the formalities required by law by one mentally capable of executing it should not be set aside upon a bare suspicion of wrongdoing. Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358.”

At the time the will was executed, testator was seventy-seven years of age, but there is no showing that his mind and will were weak. To the contrary, each of the four witnesses who testified on this phase of the case, said that testator was a very strong-willed individual and they knew of no one who could influence him. He was hospitalized sometime in 1959, and this illness had weakened him physically to where he used a cane in walking and was not as active as in the past.

There is no evidence that testator executed any will prior to the one in controversy. It was prepared by E. G. Lloyd, Esq., who represented proponents in this case. Mr. Lloyd testified that he had never represented any of the parties until testator came to his office in Alice about a week or ten days before the will was signed. Testator was accompanied by Roberto and I. J. Benavides, who acted as interpreter. Mr. Lloyd testified that testator was very definite in his desires, and that Roberto took no part in the discussions. Testator advised Mr. Lloyd that he had provided for his son Daniel in an earlier partition of the estate of his deceased wife, which accounted for the provision in the will relating to Daniel. On August 5, 1959, the same three persons returned for testator to execute the will. Mr. Lloyd sent for a clerk in a nearby store, who read and explained the will to testator before it was executed. After its execution, the will was delivered to testator who took it with him. Mr. Lloyd denied any consultation with Roberto concerning preparation of the will.

For many years prior to his death, testator lived on and operated a ranch in Brooks County. Roberto, who was a widower, lived with him and helped his father run this ranch. Angela, who was unmarried, also lived on this ranch and ran the household after the death of her mother. Daniel was married and lived with his family on his own place. There was no evidence of other than a normal father-child relationship between any of the children and testator. As his father’s health declined, Roberto assumed more of the management of the ranch. Testator maintained his own bank account up until his death, and there is no showing that either of proponents dominated testator or influenced his decisions in any way.

It is our opinion, from an examination of this record, that the circumstances are -not sufficient to produce a reaable belief that an influence was exerted that subverted or overpowered the mind of testator and resulted in the execution of this will. As was said in Rothermel v. Duncan, supra, the exertion of influence that was undue cannot be inferred alone from opportunity, but there must be some testimony, direct or circumstantial to show that influence was not only present but that it was in fact exerted with respect to the making of the testament itself. There is no such evidence in this record. See also, Boyer v. Pool, 154 Tex. 586, 280 S.W.2d 564 (1955); Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208 (1954); Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358 (1944); Kirkpatrick v. Raggio, Tex.Civ.App., 319 S.W.2d 362, wr. ref., n. r. e.

Appellant also complains of the trial court’s exclusion of testimony offered from the witness Cantu to the effect that Angela had employed Cantu, after the death of her father, to construct a new home for her and agreed to pay $18,000.-00 in cash for same. This testimony was not offered on the question of undue influence, but to show that Angela profited by the will. This fact is shown by the will, together with the inventory and appraisement, and by the bank account of testator at the time of his death. The trial court did not err in excluding same. In any event, such evidence was merely cumulative and its exclusion would be harmless. Rule 434, Texas Rules of Civil Procedure; Medina Electric Cooperative, Inc. v. Ball, Tex.Civ.App., 368 S.W.2d 227, no wr. hist.

The judgment is affirmed.


author: BELL, Chief Justice.

text:
    MADISON AND PENNINGS, INC., Appellant, v. FOUNDATION ENGINEERING COMPANY, Inc., Appellee.
    No. 14570.
    Court of Civil Appeals of Texas. Houston.
    April 29, 1965.
    Paul E. Delcourt, Jr., Houston, for appellant.
    Hugh E. McGee, Jr., Houston, for appel-lee.
   BELL, Chief Justice.

On June 19, 1964, appellee recovered judgment against appellant for debt in the amount of $21,925.00 plus an attorney’s fee in the amount of $5,000.00. The judgment was an agreed one. The judgment also decreed foreclosure of a “labor lien” against certain real estate and improvements owned by Pleasant Grove Charitable Foundation, Inc.

On June 18, 1964, the following letter agreement was entered into between the attorneys for appellant and appellee, acting for and on behalf of their clients:

“You have agreed and stipulated in the judgment to be entered in the above captioned cause that Foundation Engineering Company, Inc. is entitled to the recovery of attorney’s fees in the amount of $5,000.00. In consideration of your having agreed to the allowance of attorney’s fees as aforesaid, we-have agreed and do hereby affirm our agreements with you as follows:
“1. If Foundation Engineering Company, Inc. sells the judgment to a third party or obtains satisfaction from any source other than Madison and Pen-nings, Inc., then, in such event, we will release Madison and Pennings from any liability for attorney’s fees prior to making any assignment of the judgment.
“2. If it should become necessary to enforce the judgment against Madison and Pennings, Inc., it is to pay the sum of $1,500.00 as attorney’s fees within ninety days from date demand is made upon it for satisfaction of the judgment, and the balance of the attorney’s fees shall be payable only if as and when Madison and Pennings, Inc. shall have recovered judgment against Plez Lewis and Sons, Inc. in suit presently pending in the 164th District Court, Cause No. 638,234. The amount of attorney’s fees to be paid over and above the $1,500.00 shall be that part of the total amount of attorney’s fees recovered in such law suit that bears the same proportion as the amount recovered in such law suit representing work done by Foundation Engineering Company, Inc. bears to the total recovery in such law suit, exclusive of attorney’s fees and interest.
“3. It is further agreed that if Foundation Engineering Company, Inc. elects to sell or assign the judgment in consideration of the payment to it of less than the face amount of such judgment, that the assignment will be made in form and manner so as to release Madison and Pennings, Inc. from any liability for attorney’s fees provided for in the judgment.”

On August 3,1964, appellee executed a release of the judgment in favor of Pleasant Grove Charitable Foundation, Inc. and the release recites the judgment has been paid by Plez Lewis and Son, Inc., and that the judgment is released only as to the Foundation. It is expressly stated there is no release of the judgment against appellant. It is then provided that “for and in consideration of the payment by Plez Lewis & Son, Inc., above mentioned, the undersigned does hereby ASSIGN, TRANSFER AND SET OVER unto the said Plez Lewis & Son, Inc., an interest in the above described judgment to the extent of the sum of $21,200.00.”

With affairs in the above state, appellee obtained a writ of garnishment directed to South Texas Building Company, which was indebted to appellant in the sum of $2,461.-42.

The trial court rendered judgment awarding the garnishee an attorney’s fee of $750.00, and then the judgment provided that the balance after deduction of this fee and costs in the garnishment proceeding should be applied on the interest in the judgment held by appellee the judgment creditor. Appeal is here from this judgment.

The effect of the judgment was to hold that appellee still owned an interest of $725.00 in the judgment and that appellant owed this amount and an attorney’s fee of $1,500.00.

Appellant concedes the judgment is correct as to the $725.00 but says because of the above letter agreement and the assignment of the interest in the judgment to Plez Lewis & Son, Inc., he is released from all liability for an attorney’s fee recovered in the original judgment. Appellee contends that the effect of the letter agreement and his retention of an interest in the original judgment is to leave appellant liable for $1,500.00 of the $5,000.00 attorney’s fee recovered in the original judgment. Appellee’s position is, therefore, that paragraph 2 of the letter is applicable.

The record, apart from the briefs of the parties, is very uninformative concerning the surrounding facts and circumstances. We take it, however, that we may notice certain facts which the parties in their briefs and oral argument agree on.

Plez Lewis & Son, Inc. was the general contractor on building improvements for Pleasant Grove Charitable Foundation, Inc. Appellant was a sub-contractor under Lewis & Son and appellee was a subcontractor under appellant. The debt appellant owed appellee represented work done on the job by appellee. The above we get from the briefs and argument of counsel. Lewis & Son apparently owed appellant for work appellant and appellee, appellant’s sub-contractor, did, or at least appellant was asserting a claim because as reflected by paragraph 2 of the letter appellant had a suit against Lewis & Son and his suit included money owed by appellant to appellee. Because of the recital in the release to the Foundation that Lewis & Son had paid some money so the Foundation was released, and the subsequent recital that an interest in the judgment against appellant to the extent of $21,200.00 was assigned to Lewis & Son we reach the conclusion that Lewis & Son paid $21,200.00 to obtain a release of the lien of the judgment and this was out of funds it had not paid to appellant but which appellant was claiming. We think such is a fair inference.

We are of the view that paragraph 1 of the letter envisions a sale and assignment of the full amount of the judgment less the attorney’s fee or a payment of the full amount of the judgment, less the attorney’s fee, by a third party. Apparently here payment by Plez Lewis & Son is contemplated, because the record shows Lewis & Son to be the only likely third party who might have an interest in paying the judgment. In any event, non-liability for any attorney’s fee appears under this paragraph to be dependent on a transfer of the whole judgment, less the attorney’s fee, or satisfaction of the whole judgment by a third party, less the attorney’s fee.

Paragraph 3 also means that if the whole judgment, less the attorney’s fee, is transferred, but in consideration of less than the full amount, then there will be no liability to appellee for the attorney’s fee. Here appellee carefully preserved a $750.00 interest.

Here there was a sale of only an interest in the judgment. We would only engage in speculation if we sought to state why. Suffice it to say there is no charge of a want of good faith or fraud. We cannot tell what might lurk in the background because of the incompleteness of the record.

It is permissible to transfer only an interest in a judgment. Great American Indemnity v. McMenamin, 134 S.W.2d 734 (CCA), dism., judgment cor.

Having held that paragraphs 1 and 3 are inapplicable, we look to paragraph 2. Here it is contemplated that where the judgment is not disposed of by appellee under paragraphs 1 and 3, but satisfaction must finally be obtained by resort to appellant, then a $1,500.00 attorney’s fee only will be paid unless recovery is obtained by appellant in its suit against Lewis & Son. While we do not know what has happened to that suit, by the admission made in appellee’s reply to the motion to quash, it claims only a $1,500.00 attorney’s fee and what additional attorney’s fee would be owed, if the suit against Lewis & Son were prosecuted to judgment we need not determine.

The judgment of the trial court is affirmed.


author: NORTHCUTT, Justice.

text:
    W. A. MADDOX, Appellant, v. CITY OF AMARILLO et al., Appellees.
    No. 7446.
    Court of Civil Appeals of Texas. Amarillo.
    March 22, 1965.
    Clayton, Kolander, Moser & Templeton, Amarillo, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellees.
   NORTHCUTT, Justice.

On April 29, 1960, the City of Amarillo and other taxing units filed a suit against W. A. Maddox in Cause No. 34,555 in the 108th District Court of Potter County, Texas, to recover taxes alleged to be due. Maddox answered on May 9, 1960, by general denial. The attorneys for the parties had met and discussed a settlement before a hearing was had by the court. The tax case was set at a regular docket call for December 4, 1962. The attorney for Maddox was notified of said setting but failed to appear at said hearing and judgment was rendered against Mr. Maddox. Execution was issued on November 21, 1963, and the sheriff contacted Mr. Maddox in connection with said execution.

It is the contention of Mr. Maddox that the first time he knew a judgment has been granted in the tax case was when the sheriff contacted him. On December 16, 1963, Maddox filed this Bill of Review requesting the court to set aside the judgment rendered against him for the taxes. A hearing was had upon the Bill of Review before the court without a jury and judgment was entered decreeing that the relief prayed for be denied and that defendants have judgment that the judgment in Cause No. 34,555 was a valid judgment and that such judgment not be vacated or set aside. From that judgment Maddox (hereinafter called appellant) perfected this appeal.

Appellant presents this appeal upon one point of error as follows: “The trial court erred in failing to enforce the undisputed oral stipulation as made between the attorneys in this case.” It was appellant’s attorney’s contention that the reason he did not appear at the time the case was set for hearing was because he was relying upon his agreement with the attorney on the other side that no judgment would be taken or action taken until he could get the figures from the taxing unit as to what they would take. It is undisputed that the attorneys met and discussed a settlement several times before the case was finally set for hearing and judgment was entered.

Robert L. Smith was the attorney originally handling the tax suit No. 34,555 and the attorney appellant’s attorney contends he had his agreement with. Robert L. Smith resigned as such tax attorney on July 11, 1961, and other attorneys thereafter handled the tax suit No. 34,555. It was some seventeen months after Mr. Smith had left the tax office before the tax case was set at a regular docket call. It was almost one year thereafter before any execution was issued. The two attorneys could not agree as to their agreement.

Rule 11 of the Texas Rules of Civil Procedure provides as follows:

“No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”

In denying appellant’s Bill of Review the court referring to Rule 11 stated:

“And it just simply — because of cases like this that we do have that policy, because it’s so easy for attorneys to have different negotiations about what the agreements actually were. So far as any agreement is concerned, we would have to assume, since there is not an agreement between you as to what it was, and since it wasn’t transmitted to the Court in the form noted, that we will not consider that there was such an agreement.”

No findings of fact or conclusions of law were filed and no request for such findings were made until after the judgment here involved had become final. We think the correct rule under such condition has been properly stated in the case of Bradshaw v. Holmes, 246 S.W.2d 296 (N.R.E.), where it is stated:

“No findings were requested and therefore no findings were made and filed by the trial court. If the pleadings and evidence support the trial court’s judgment on any theory the same must be sustained. It must be presumed that the trial court’s findings supported its judgment. In considering the sufficiency of the evidence in support of the presumed findings of the trial court, the reviewing court must construe the evidence in the light most favorable to the judgment and disregard all evidence to the contrary, indulging every legitimate conclusion which tends to uphold the judgment. Strickland v. Humble Oil & Refining Co., Tex.Civ.App., 181 S.W.2d 901, and Barrick v. Gillette, Tex.Civ.App., 187 S.W.2d 683, and other authorities there cited.”

It is stated in Cantu v. Cantu, Tex.Civ.App., 253 S.W.2d 957 that a trial judge should not be called upon to decide disputes which arise among attorneys who are practicing before his court.

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


text:
    HARDWARE MUTUAL CASUALTY COMPANY, Appellant, v. Opal BROWN et al., Appellees.
    No. 14375.
    Court of Civil Appeals of Texas. San Antonio.
    April 7, 1965.
    Rehearing Denied May 12, 1965.
    Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for appellant.

      Carl Raymond Crites, Thomas H. Peterson, San Antonio, for appellees.
   BARROW, Justice.

This is a workmen’s compensation death case wherein the primary question is whether or not Robert W. Nichols was a Texas employee, under Art. 8306, § 19, Vernon’s Ann.Civ.Stats., at the time he received fatal injuries in Camden, Arkansas. The jury found that he had the status of a Texas employee of Buckner Brick Company, Inc., hereinafter referred to as “Buckner,” at the time of his death, and judgment was rendered on this verdict in favor of his surviving parents.

Appellant, Hardware Mutual Casualty Company, which carried workmen’s compensation for Buckner under the Texas Compensation Act, asserts that the trial court erred in overruling its motion for instructed verdict and judgment non obstante veredicto. These are “no evidence” points, and require a review of the evidence in its most favorable light in support of the jury’s finding, considering only the evidence and inferences which support the finding, and rejecting the evidence and inferences which are contrary to the finding. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126; Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.Law Rev. 361.

Robert W. Nichols was hired in Dallas, Texas, in September, 1962, but performed no work for Buckner in Texas prior to his death in Camden, Arkansas, on November 11, 1962. Both parties concede that this case is controlled by the applicable principles of law stated by the Supreme Court in Southern Underwriters v. Gallagher, 135 Tex. 41, 136 S.W.2d 590 (1940). It was there said:

“Under the plain provisions of Section 19 of Article 8306, supra, as interpreted and construed in the two cases above mentioned (Texas Employers’ Ins. Ass’n. v. Volek, Tex.Com.App., 69 S.W.2d 33; Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955), before an employee injured outside the territorial limits of this state can recover for such injury under our compensation statutes, he must prove that, at the time of such injury, he occupied the status of a Texas employee incidentally or temporarily sent out of the state to perform labor or services. The phrase, ‘who has been hired in this State,’ has no reference to the place where the contract of hiring took place. The test is: What was the status of the employee at the time of injury with regard to being a Texas employee? If, at such time, he occupied the status of a Texas employee, he is entitled to protection under our Compensation Statutes, even though he was working out of the state. On the other hand, if the employee is hired or contracted within this state to go out of this state to perform labor or services, he cannot claim protection under our Compensation Law merely because the contract was made or entered into in this state. Also, if a person is hired to work in this state, — that is, if, under the contract of hiring, such person becomes a Texas employee in the sense that it is contemplated that his services are to be rendered in this state, such employee is protected by our Compensation Law, even though he is first sent incidentally or temporarily out of the state to perform labor or services, and the mere fact that such employee performs his first services out of this state will not defeat his right to protection under our compensation statutes. In any event, before the statute under consideration can be applied in favor of an employee injured out of this state, it must be shown that he occupied the status of a Texas employee before leaving the state. Also, it must be further shown that while occupying such status he was incidentally or temporarily sent out of the state by the Texas employer to perform labor or services for such employer.”

See also, Hale v. Texas Emp. Ins. Ass’n., 150 Tex. 215, 239 S.W.2d 608.

Buckner was a Texas corporation with its principal office and place of business in Dallas, Texas, and was in the business of buying and selling bricks and allied building materials. It had never demolished a building prior to entering into a contract on August 22, 1962, with the Merchants & Planters Bank of Camden, Arkansas, to demolish four buildings in Camden, Arkansas. Glenn Magee was experienced in this line of work, having been foreman of a crew employed by Patton Wrecking Company prior to July, 1962. Magee was acquainted with Joe Tucker, president of Buckner, and after a visit to the job site with Tucker, Magee was employed in the first week of September, 1962, to superintend the demolishing operations in Camden. Magee was authorized to hire the crew necessary to perform this job.

Magee’s former crew with Patton Wrecking Company consisted of Robert W. Nichols, his brother William C. Nichols, and his brother-in-law, James Johnston, all of whom lived in the same section of Dallas. This was not known to Tucker. Magee testified he told Tucker two brothers on his former crew lived in Hot Springs, Arkansas, and would be available for this job. The crew members visited each other frequently and, after several discussions, agreed to work with Magee on this job for Buckner. There is no evidence that Robert performed any work for Buckner prior to September 7, 1962, when he and his brother reported on the job in Camden, Arkansas. Robert was paid weekly with funds from a Buckner account in the Camden Bank. He worked on this job until a wall collapsed on November 11, 1962, inflicting fatal injuries on Robert and James Johnston.

There was testimony from William C. Nichols, his wife and Johnston’s wife, that it was contemplated in the discussions among the crew that they would be returning to Dallas after about ninety days when the Camden job was completed, and that they would then perform other demolishing jobs for Buckner. Tucker denied that Buckner contemplated any other demolishing jobs at that time, although it did demolish a building in Dallas in February or March, 1964. Magee confirmed that he and his crew were not promised a job any place other than Camden, Arkansas. He did tell the crew that they would have a job as long as he had one. There was testimony that he performed no other job for Buckner, and at the time of the trial William C. Nichols was still working with Magee.

The facts in Southern Underwriters v. Gallagher are very analogous to those in this case. Gallagher was employed in Texas as an oil field worker, but was sent to New Mexico to work on a rig. He was promised that as soon as the company started a well in Texas he would be transferred to it. It was there held that this testimony regarding future work in Texas was, at most, a mere promise to make Gallagher a Texas employee in the future. The discussions among Magee’s crew concerning their future employment in Texas by Buckner are less persuasive than the firm promise to Gallagher of a transfer to Texas.

It is our opinion that Robert W. Nichols, although hired in Texas, was hired to perform labor or services in Camden, Arkansas, and did not occupy the status of a Texas employee when he left the State. Southern Underwriters v. Gallagher, supra; Jordan v. Standard Accident Ins. Co., 339 S.W.2d 267, no wr. hist. Nichols was therefore not protected by the Texas compensation statutes at the time he sustained his fatal injuries. Appellant’s point regarding the judgment for funeral expenses is immaterial.

The judgment of the trial court is reversed and here rendered that appellees take nothing by this suit.


author: RENFRO, Justice.

text:
    R. B. WILLIAMS, d/b/a Fort Worth Vending Company, Appellant, v. Martin LOICANO, d/b/a Big State Vending Machine Company, Appellee.
    No. 16626.
    Court of Civil Appeals of Texas. Port Worth.
    April 16, 1965.
    Rehearing Denied May 14, 1965.
    Biggers, Baker, Lloyd & Carver, and Spencer Carver, Dallas, for appellant.
    Herrick & Tillman, and Massie Tillman, Fort Worth, for appellee.
   RENFRO, Justice.

This case is before us as an appeal from the denial of a temporary injunction.

Plaintiff R. B. Williams, d/b/a Fort Worth Vending Company, sought an injunction to enjoin Martin Loicano, d/b/a Big State Vending Machine .Company, from competing with plaintiff in the vending machine business.

On September 20, 1961, Martin Loicano and his brother, as partners owning Big State Coin Machine Company, sold all the assets of said Company to Standard Cigarette Service, Inc., for a consideration of $225,000.00. In the contract the seller agreed, in paragraph 1: “to sell all of its physical assets and property of every kind and nature, including all cigarette machines, amusement machines, phonographs, records, speakers, wall boxes, parts, vehicles, office equipment, shop equipment, money, inventory and cigarettes in machines on the date hereinafter specified. Seller also will assign and transfer to Purchaser any and all contracts, franchises, location agreements which Seller may own or hold for vending machine and related services.”

Paragraph 7 of the contract read as follows: “Seller and all of its partners agree that they will not compete, directly or indirectly, in the general vending machine business (including music, cigarette and amusement machine business) in Tarrant County or counties immediately adjacent thereto for a period of five years from the date hereof, either as a partner or proprietor or through any corporation or association in which they, or any of them, may be interested, nor in any other manner or capacity.”

Thus, the contract shows a complete sale of the coin machine business, and an unqualified agreement on the part of sellers not to compete for a period of five years in the designated area.

On August 3, 1964, Standard Cigarette Service, Inc., sold the same coin machine business to plaintiff, R. B. Williams, d/b/a Fort Worth Vending Company. Williams continued to operate the business in the same manner as had his predecessor, and with the same customers.

By an instrument in writing, at the time of the last mentioned sale, Standard Cigarette Service, Inc., sold and assigned to plaintiff all the rights and benefits it possessed under the provisions of paragraph 7 of the contract of September 20, 1961.

Upon learning that Standard was no longer in the coin machine business Loicano began soliciting customers for location agreements. This suit sought to enjoin Loicano from such competition until the expiration of five years from September 20, 1961, namely, to September 20, 1966.

The evidence is undisputed. Loicano contended the “no competition” agreement was not assignable from Standard to Williams. He, in November, 1964, solicited and obtained customers who were being served by Williams. He intends to continue in the general coin machine business in Tar-rant County unless restrained by court order. He deals with customers on the same financial arrangement as does plaintiff. He intends to get not only Williams’ locations, but all the locations he can.

There were no customer complaints concerning plaintiff’s dealings with them. Lo-icano offers no better agreements than does plaintiff.

The general rule stated in 43 C.J.S. Injunctions § 84, p. 566, approved by the Supreme Court in Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892 (1960), is that “Where an established business has been sold with its good will and there is a valid covenant not to compete, a breach is regarded as the controlling factor and injunctive relief follows almost as a matter of course. In such cases the damage is presumed to be irreparable, and the remedy at law is considered inadequate. It is not necessary that the buyer first prove special pecuniary damages or show an actual loss of customers who might in any event have discontinued their patronage. Injunctive relief may be given, even though only nominal damages are shown or although no actual damage is shown.”

The above is in accord with the holding in Malakoff Gin Co. v. Riddlesperger, 108 Tex. 273, 192 S.W. 530 (1917).

Plaintiff, if he had a right to injunctive relief under the Big State-Standard contract, went even further than he was required to. In addition to proving a breach by defendant, he proved actual loss of customers, loss of revenue, and an express intent of defendant to continue to solicit plaintiff’s customers. It is undisputed that defendant dealt with prospective customers on the same terms as did plaintiff, and that plaintiff’s services were satisfactory to the customers.

The question presented is whether the contract not to compete was assignable from Standard Cigarette to plaintiff.

According to the weight of authority, a subsequent purchaser of the business is entitled to restrain the breach of an express covenant not to engage in the same business where the covenant has been expressly assigned to him on the resale of the business. 43 C.J.S. Injunction § 84, pp. 568-569 ; 6 Am.Jur.2d p. 203, § 19.

By statute, Art. 569, Vernon’s Tex.Civ. St., the obligee or assignee of any written instrument not negotiable by the law merchant may by assignment transfer all his interest therein to another.

It has been held that the above article, except in matters of personal trust or skill, has in effect changed the rule of the common law upon the subject of assignments of contracts, and many contracts and rights can be transferred which were not assignable at common law. Houston & T. C. Ry. Co. v. Cluck, 31 Tex.Civ.App. 211, 72 S.W. 83 (1903, no writ hist).

In a case closely resembling the instant case factually, Wells v. Powers, 354 S.W.2d 651 (Dallas Tex.Civ.App., 1962, no writ hist.), the same defense was made as is made here, namely, that the “no competition” covenant did not run to the vendee “or his assignees”. The contention was sustained by the trial court. The Dallas Court of Civil Appeals reversed the trial court, however, and the trial court was instructed to issue the injunction. In construing Art. 569, the court said: “This provision is obviously all-inclusive on its face, excluding only from its operation contracts in matters of personal trust and skill,” and further held an agreement not to compete contained in a written contract for sale of a business is considered assignable where there is nothing in the contract indicating any intention by the parties that it should not be assigned. In the instant case there is nothing in the contract to indicate that it was not assignable

Defendant relies on Yates v. Blythe, 79 S.W.2d 913 (Fort Worth Tex.Civ.App., 1934). Writ of error was granted, Blythe v. Yates, Tex.Com.App., 86 S.W.2d 219, but the subj ect matter of the litigation having become moot the case was dismissed by the Supreme Court. Due to the peculiar nature of that case, we do not consider it to be authoritative of the instant appeal.

In appeals from interlocutory orders in injunction cases, the sole question is whether the trial court abused its discretion in entering the order appealed from. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (Tex.Sup., 1962).

If the facts, however, are undisputed and only questions of law are presented, it is an abuse of the trial court’s discretion to fail properly to apply the law to the facts. 31 Tex.Jur.2d 349, § 224; Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1935); City of Waco v. Marstaller, 271 S.W.2d 722 (Waco Tex.Civ.App., 1954, no writ hist.); Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961).

We are of the opinion that under the undisputed facts the plaintiff was entitled to a temporary injunction as a matter of right and the trial court’s failure to grant the temporary injunction was an abuse in law of the discretionary power vested in him.

The judgment is reversed and the cause remanded to the trial court with the instruction that the temporary injunction be 1 granted.

Reversed and remanded, with instructions.