author: ARCHER, Chief Justice.

text:
    RELIANCE INSURANCE COMPANY, Appellant, v. J. N. NUTT, Commissioner of Insurance et al., Appellees.
    No. 11405.
    Court of Civil Appeals of Texas. Austin.
    May 25, 1966.
    Rehearing Denied June 15, 1966.
    Thompson, Coe, Cousins & Irons, I. L. Allen, Michael S. Knuths, Dallas, for appellant.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Paul W. Phy, Harry Gee, Jr., Ralph R. Rash, Asst. Attys. Gen., Austin, for appellees.
   ARCHER, Chief Justice.

This is a premium tax refund case brought pursuant to the provisions of Article 1.0S, Title 122A, Taxation-General, Revised Civil Statutes of Texas, 1925, as amended. Appellant, Reliance Insurance Company, a Pennsylvania corporation sought refund of $101,589.00 which it paid to the Commissioner of Insurance of the State of Texas under protest on or about August 1, 1964. The premium taxes of $101,589.00 assessed against appellant were based upon gross premiums received by Standard Accident Insurance Company during the year 1963, prior to the statutory merger of Standard Accident Insurance Company into Reliance Insurance Company effective December 31, 1963. After hearing the evidence, the trial court rendered a judgment decreeing that the plaintiff take nothing in its suit and that the defendants be discharged with their costs. From this judgment, the plaintiff has perfected this appeal.

The appeal is founded on three points assigned as error by the trial court in denying plaintiff recovery of the premium taxes because the statute is a prospective privilege tax, imposing the tax on the privilege of doing business, and because there was no evidence upon which a judgment could be rendered requiring the company to pay the tax on premiums which it did not receive, and finally there is no statute requiring appellant to pay gross premium taxes on the premiums it did not receive.

This action was brought by appellant under the provisions of Article 1.05 as above set out to recover the taxes paid under protest.

During the period January 1,1963 through December 31, 1963, Standard Accident, a Michigan corporation, was duly authorized to conduct a fire and casualty insurance business in the State of Texas. On December 31, 1963 Standard Accident was merged into and with the appellant, Reliance, in a statutory merger pursuant to the provisions of the laws of Pennsylvania and Michigan and Standard Accident was dissolved and its corporate existence terminated on December 31, 1963, pursuant to Section 7604 of the Michigan Insurance Code of 1956.

On or about May 21, 1964, defendant J. N. Nutt, then Commissioner of Insurance, demanded that the appellant pay to the State Board of Insurance the sum of $101,589.00 claimed to be due and payable by reason of Standard Accident having done business and received premiums in Texas in 1963. On or about August 1, 1964, appellant delivered to the Commissioner of Insurance a check payable to the order of the State Board of Insurance of Texas, in the amount of $101,589.00, which payment was made under a protest directed to the Commissioner of Insurance and the State Board of Insurance.

The money collected represents the taxes which could have been levied on Standard Accident’s gross premium collections from January 1, 1963 through December 31, 1963, for insurance upon property or risks located within this State, had Standard Accident not dissolved on December 31, 1963 and had it continued to do business or desired to continue to do business in the State of Texas in the calendar year 1964.

In its original petition, appellant alleged that it was entitled to recover the above described taxes because premium taxes are privilege or occupation taxes imposed and due annually on or before the first day of March in each calendar year for the privilege of doing business for the calendar year in which the taxes are paid. Appellant further alleged that the taxes are assessed and due for the year in which they are paid and for the right to do business in that year, and such taxes are not taxes for the right to do, or for having done, business in the preceding or any prior year, although they are assessed upon a formula using the amount of premiums written in Texas during the previous year. The trial court, after considering the evidence, without a jury, found for the defendants and thus a take nothing judgment was entered by the trial court.

Appellee asserts that the court correctly denied appellant any recovery because throughout the year 1963 there had been a de facto merger of appellant and Standard Accident Insurance Company and appellant was required to pay taxes on premiums received in its operation of Standard, as a continuity of business, and appellant assumed the assets and liabilities of the merged corporation and are liable for the tax, and such is not a contingent tax.

We believe the court was correct in entering the judgment herein.

Appellant admitted that throughout the year 1963 it owned and controlled Standard and is therefore liable for the tax.

Merger is an accomplished fact when one corporation owns and controls another corporation and conducts its affairs. Humble Oil and Refining Company v. Railroad Commission of Texas, 133 Tex. 330, 128 S.W.2d 9.

This case involves the matter of one company doing business through a wholly owned subsidiary, in which there was no cessation of business.

The merger agreement states that appellant took over the “business, good will and assets” of Standard as of December 31, 1963, and recites that “all debts, liabilities and duties” of both companies “shall attach to the surviving company” and be enforced.

It cannot be successfully contended that the tax is conditional, or a contingent prospective privilege tax which is extinguished if a corporation ceases to do business because appellant’s own proof established that there has not been any cessation of business. The appellant obtained the money received from premium collections by Standard in 1963 in the form of liquid assets.

The statutory rule with respect to continuity is applied with particular emphasis in tax cases. In Koppers Company v. United States, 134 F.Supp. 290, 295, 133 Ct.Cl. 22, (cert. den. 353 U.S. 983, 77 S.Ct. 1279, 1 L.Ed.2d 1142), the Court said:

“The surviving corporation in a statutory merger represents the continuation of a business that was operated before in the form of its constituents. For practical, business, and many tax purposes, it is treated the same as its components which formed it. It accedes to the rights and privileges as well as the obligations of its components by operation of law. It becomes primarily liable for the tax obligations of its components as the taxpayer and not secondarily liable as a transferee.
* * * * * *
In Commissioner of Internal Revenue v. Munter, 331 U.S. 210, 213, 67 S.Ct. 1175, 1176, 91 L.Ed. 1441, the Court stated that the Sansome rule ‘for tax purposes, treats a reorganized corporation as but a continuation of its predecessors * ”

In 1951 the Legislature re-enacted Article 7064, amending it by adding to the second paragraph the following sentence:

“ * * * Provided, further, that the amount of all examination and valuation fees paid in each taxable year to or for the use of the State of Texas by any insurance organization hereby affected shall be allowed as a credit on the amount of premium taxes to he paid by any such insurance organization for such taxable year.”

The legislative intent behind the 1951 amendment appears in the caption to that Act (Acts 52nd Leg.R.S.1951, ch. 402, p. 695), which recites that it is an Act amending the Act of the 49th Legislature.

“ * * * so as to increase the tax therein levied on the gross premium receipts of certain classes of insurance companies, or carriers, and allowing as a credit against said taxes all examination and valuation fees paid in each taxable year. * * * ”

When this language is considered in connection with the language quoted above from the body of the 1951 amendment, it becomes clear that Article 7064 establishes and levies a tax upon the receipt of premiums, which tax cannot be extinguished by the merger or even by the withdrawal of an insurance company after the collection of the premiums.

In American Surety Co. of New York v. Axtell Company, 120 Tex. 166, 36 S.W.2d 715, the Court quotes with approval 36 Cyc., Paragraph 10, p. 1165, as follows:

“ * * * An amended act is ordinarily to be construed as if the original statute had been repealed, and a new and independent act in the amended form had been adopted in its stead; or, as frequently stated by the courts, so far as regards any action after the adoption of the amendment, as if the statute had been originally enacted in its amended form. * * * It will be presumed that the Legislature, in adopting the amendment, intended to make some change in the existing law, and therefore the courts will endeavor to give some effect to the amendment.”

Article 7064 requires each company to report the gross amount of premiums received at the time of filing its annual statement to report to the Comptroller “the gross amount of premiums received” on property and from persons located in the State “during the preceding year”, and each of such companies shall pay an annual tax upon such premium receipts as follows: [Here follows the tax rate provision.]

“ * * * Upon receipt by the Board of Insurance Commissioners of the sworn statements, showing the gross premium receipts by such insurance carriers, the Board of Insurance Commissioners shall certify to the State Treasurer the amount of taxes due by each insurance carrier which tax shall be paid to the State Treasurer on or before the first day of March following, and the Treasurer shall issue his receipt to such carrier, which shall be evidence of the payment of such taxes. No such insurance carrier shall receive a permit to do business in this State until all such taxes are paid.”

The denial of a permit to those failing to pay is an enforcement provision and not a relinquishment of the liability.

Appellant asserts that a foreign corporation would be able to operate in the State for a full year and withdraw from the State and be exempt from all tax liabilities under Art. 7064, or be able to operate without paying the tax every other year. This is not allowable. Section 55, Article 3, of the Texas Constitution, Vernon’s Ann.St.; State v. Pioneer Oil and Refining Company, 292 S.W. 869 (Tex.Com.App., Sec. A, Judgment aff.).

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: PHILLIPS, Justice.

license: Public Domain

text:
    James O. GERST, Savings & Loan Commissioner of Texas, Appellant, v. B. F. ADAM et al., Appellees.
    No. 11407.
    Court of Civil Appeals of Texas. Austin.
    May 25, 1966.
    Rehearing Denied June 15, 1966.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Paul W. Phy and John W. Fainter, Jr., Asst. Attys. Gen., Austin, for appellant.
    Clark, Thomas, Harris, Denius & Winters, Conrad Werkenthin, Mary Joe Carroll, Austin, for appellees.
   PHILLIPS, Justice.

This is a suit brought by appellees, B. F. Adam et al. against appellant, James O. Gerst, Savings and Loan Commissioner of Texas. The suit was filed in the District Court of Travis County, Texas, seeking to set aside an order of appellant issued on April 9, 1965 denying appellees’ application for a savings Und loan charter. Appellant’s order had been issued subsequent to a hearing held on March 10, 1965. Appellees’ appeal from the order denying the application was pursuant to the provisions of the Texas Savings and Loan Act, Article 852a, Section 2.08, R.C.S.

After a trial to the court without a jury, the court entered its judgment on October 26, 1965 setting aside appellant’s order and remanded the case to appellant for proper action not inconsistent with his judgment.

We affirm.

Appellant is before us on two points of error, namely, that of the trial court in overruling appellant’s motion in limine and allowing the introduction of evidence at the trial of this cause which was not evidence adduced at the public hearing held on March 10, 1965, concerning appellees’ application for a savings and loan charter; the error of the court in not holding the order of April 9, 1965, entered by appellant denying a savings and loan charter to appellees was reasonably supported by substantial evidence, and holding said order arbitrary and capricious.

We overrule these points.

We shall discuss the second point first.

In denying the application, the Savings & Loan Commissioner found that appellees were eligible for a charter under the provisions of Article 852a, Section 2.08, R.C.S., except in the following respects: there was no public need for the proposed association; that there was not a likelihood of a profitable operation; and that the proposed association would unduly harm existing associations.

The substantial evidence rule governs appeals from orders of the Savings & Loan Commissioner, Gerst et al. v. Cain, 388 S.W.2d 168, Sup.Ct.

Even though the substantial evidence rule creates a presumption in favor of the administrative order, after a review of this record, we find that the order cannot be upheld and the trial court was correct in setting it aside.

The application in question sought a charter for an association to be known as Northwest Savings Association to be established at 14,430 Hempstead Highway, Houston, Texas.

The site was selected upon the basis of studies made by Ralph S. Ellifrit, a city planning consultant and Robert Branson, a marketing economist. Both are qualified experts. From 1940 until 1964, Mr. Ellifrit was director of city planning for the city of Houston. In connection with the city of Houston, he made repeated studies of population growth, traffic flow, and subdivision development. Something over 2,000 subdivisions were reviewed and approved during Ellifrit’s tenure as director of planning. He dealt frequently with shopping center development and with the proper utilization of shopping center facilities. He has had ample experience in determining the sphere of influence of any particular shopping center or commercial development, basing his decisions upon census figures, population statistics compiled by the Houston Chamber of Commerce and various business enterprises within the city.

Robert Branson is a graduate professor at Texas A & M University and a member of the marketing research firm of Branson and Associates in Bryan, Texas, and is a marketing economist. His firm handles various types of market research problems for business firms and organizations, a considerable part of which has been the analysis of the market for consumer goods and consumer services. Before going to A & M in 1955, Branson was a marketing economist and statistician for the United States Department of Agriculture. He holds B.A., M.A. and Ph.D. degrees. The Ph.D. degree is from Harvard and is in economics.

The selected site is in a shopping center which includes a post office, a supermarket, and other business activities. The studies made by the two expert witnesses established that an association at that particular site would have a reasonable and logical trade area which was designated Primary 1 and Primary 2 and depicted on a map introduced in evidence both before the Commissioner and in the trial court.

One of the prime factors in making this location is the Hempstead Highway which is the main gathering artery for this area. In this connection, consumer buying habits, traffic flows, ingress and egress from residential areas were considered with respect to the location chosen. In addition, a post office, which operates in the same shopping center as the proposed Savings & Loan Association, serves quite an extensive surrounding rural area. An additional consideration was a supermarket located in this same shopping center, which not only serves as a center for purchases, but also cashes checks for its customers. In this latter respect, the supermarket maintained a list of preferred customers whose checks would be cashed. Dr. Branson studied these lists and found 1046 names, a large proportion of the names listing rural addresses in the environs. These included residents of the nearby communities of Cypress, Hockley, Waller and even in the Tomball area.

The evidence further indicated that while a shopping center normally serves only an area of 10 or IS blocks square, the area in question is not a typical shopping center area but is one that, in addition to serving the surrounding community, serves a wide rural area that extends for quite a distance.

While the whole section is rapidly changing from rural to urban, the testimony indicates that the rural portion of the projected trade area is exceptionally high in income.

Appellees further presented evidence disclosing that in a period from 1960 to 1965 the population in the immediate area to be served had increased 42% and presented an increase from 12,846 as reported in the 1960 census to a total of 18,265 in 1965. The increase in Houston as a whole for the same period was 17%. That 1,550 houses have been built in the area between 1960 and the first part of this year. A majority of these homes are in the $15,000 classification or upward. A projection of the population for the year 1970 is between 25,000 and 30,000 people. Estimating an average income of $5,000 per family, which estimate was considered low, the income base in the area was estimated to be 25½ million dollars a year with an annual net savings flow of 1½ million dollars.

The increase in population of the Primary 1 and Primary 2 trade areas was further shown by statistics relating to Cypress-Fairbanks School District. Between 1951 and 1965 the number of scholastics increased from 575 to 4,063. The boundaries of the school district are approximately the same as those of the trade areas which Northwest Savings Association proposes to serve.

On December 15, 1964, the school district passed a 3½ million dollar bond issue. The school board has already sold a million dollars of the issue to build one and possibly two elementary schools within the immediate future. The remainder is being held for future expansion.

At the hearing before the Commissioner, B. F. Adam, who has been on the school board for approximately 15 years, testified that between 1951 and 1965 property evaluation in the school district increased from about $15,000,000 to about $63,000,000. He gave substantially the same testimony during the trial in the District Court. The figures were substantiated by William V. Copeland, tax assessor-collector for the district. He stated that in 1953 the assessed evaluation was $58,000,000, in 1964 it was $63,000,000, and in 1965 it was $75,500,000.

Further, there was evidence that with no further growth anticipated, there is presently a sufficient mortgage loan demand and savings demand to support an institution with total assets of from three to four million dollars.

In view of the countervailing testimony, it is unnecessary to detail appellees’ evidence further other than to say that evidence was presented as to a present existing need for an association to serve the proposed area; that other savings and loan associations do not serve or solicit business in the proposed area; that persons in the area that Northwest will serve have had difficulty both in securing loans and in servicing loans; that both interest rates and brokerage fees are higher in the area in question than for comparable property elsewhere in the Houston area; that by projecting the building and loan trends in the area from the period 1965 to 1970 there will be a requirement of 7,700 residences in the area with a requirement of 5.6 million dollars in loan funds. This figure was arrived at by estimating the average loan to be in the neighborhood of $12,000.

None of the above testimony was disputed at either proceeding.

The evidence offered in defense of the order was too general, vague and inconclusive to be called substantial.

The Commissioner himself testified that in his opinion the volume of business in the community to be served by the proposed association is not such as to indicate a profitable operation and that the proposed association would unduly harm existing corporations. Substantial proof of these opinions would have upheld the order, however the gist of his testimony in support of this opinion was that there are already 24 State and Federal Charters in Harris .County with 33 authorized branches. That there are 10 associations within a 50 mile radius of Houston, 15 or 17 within a 100 mile radius, all of which can make loans in Harris County. In addition, he made the observation that, in his opinion, the Federal Home Loan Bank would deny Northwest Savings Association’s request for federal insurance on their savings. That such insurance was necessary for the public to have sufficient confidence in the association in order to make their savings program successful. These broad conclusions unsupported by any detailed factual evidence as to the reasons therefor, cannot be called substantial evidence, and if so allowed would preclude the necessity of a trial.

A Mr. James Lammers, executive vice president of the Spring Branch Savings and Loan Association, testified in opposition to the application. A summary of his testimony is not necessary to this opinion. It has no bearing here as it was conclusively shown that his association did not serve the area in question (with the exception of very small percentage of loans) and that the great bulk of Spring Branch’s loans was from the Spring Branch School District area, an area not pertinent here. Mr. Lammers did present two aerial photographs of the area that Northwest Savings seeks to serve along with four polaroid pictures taken at ground level. The purpose of the photographs was to show the sparseness of development in the area and, while they were evidence, they certainly were not of nature substantial enough to uphold the order in view of the case presented by appel-lees.

A Mr. Ervin Boessling, who identified himself as a homebuilder, testified that he built two houses in the area sought to be served and aided one party in obtaining a home loan on the house at 6%. That Spring Branch Savings & Loan Association made the loan.

The State is the only party to this appeal not having been joined by Spring Branch Savings and Loan Association.

To quote our holding in Gerst v. Cain, 379 S.W.2d 699, at p. 710, “We are convinced that none of the findings made by the Commissioner, express or implied, to sustain his rejection of the application of Metropolitan is reasonably supported by substantial evidence and that the judgment of the Trial Court should be affirmed.” Gerst was affirmed by the Supreme Court in 388 S.W.2d 168.

Appellant’s remaining point of error is that of the trial court in overruling appellant’s motion in limine and allowing the introduction of evidence at the trial of this cause which was not evidence adduced at the public hearing on March 10, 1965 concerning appellees’ application for a savings and loan charter.

We overrule this point.

While in Gerst v. Nixon, 399 S.W.2d 845, we held that the statute before us limits the review by the court to the record made before the Commissioner, the evidence adduced in the District Court here tracked, for all practical purposes, that which was presented before the Commissioner. Any error was harmless under Rule 434, Texas Rules of Civil Procedure.

We affirm the judgment of the trial court.

Affirmed.


author: WERLEIN, Justice.

text:
    Derland J. FROST et vir, Appellants, v. VILLAGE OF HILSHIRE VILLAGE et al., Appellees.
    No. 14675.
    Court of Civil Appeals of Texas. Houston.
    May 19, 1966.
    Rehearing Denied June 9, 1966.

      Raymond M. Hill, Jimmy R. Cox, George J. Van Os, Mervin Key, Houston, for appellants.
    Mauzy & Mauzy, D. B. Mauzy, Paul Strong, Carroll J. Boudreaux, Houston, for appellees.
   WERLEIN, Justice.

Appellant, Derland J. Frost, joined by her husband, occupant-owners of a residence in the interior of the Village of Hilshire Village intervened in this suit originally brought by one Daisy Parks, for the purpose of attacking the validity of any zoning ordinances which the Village was then attempting to enforce with respect to approximately four acres of land fronting on Wirt Road on the east perimeter of the Village, owned by appellant, Derland J. Frost, as her separate property. The Village granted Daisy Parks certain relief and she dismissed her suit against appellee, Hilshire Village. The Village filed a cross-action against appellants seeking a permanent injunction restraining them from violating the terms of the 1964 amendment to the zoning ordinance adopted in 1956. Certain owners of lots in the interior of the Village intervened on the side of the Village seeking declaratory relief.

The case was tried to the court without a jury, and the court entered judgment decreeing that Ordinance No. 108 of the Village of Hilshire Village, Texas, enacted March 17, 1964, was valid and in full force and effect and applied to the property of the intervenor, Derland J. Frost, known as No. 1231 Wirt Road in said Village in Harris County, Texas. It was further decreed by the court that appellants be enjoined from in any manner using any of said property in any manner not authorized in single family dwelling District “B” under the provisions of said ordinance, except pursuant to a valid permit granted by the Board of Adjustment of said Village. In his judgment the court stated that the injunction was granted for the reasons that said property is subject to said residential restriction of said zoning ordinance, and the said Derland J. Frost had publicly notified the Village that she intended to use such property for commercial purposes. The court denied all relief prayed for by appellants.

Appellants assert that the court erred in finding Ordinance No. 108 to be valid and enforceable on the ground that such ordinance purports to amend a prior invalid ordinance, and further that the court erred in admitting into evidence purported copies of said prior zoning ordinance and amendments thereto in the absence of proper proof. The caption of the 1964 ordinance, sometimes referred to as Ordinance No. 108, refers to the 1956 ordinance and purports to be an amendment to such ordinance. Ap-pellees contend that Zoning Ordinance No. 108 is valid not only because it is complete in itself but also because the 1956 ordinance, if originally invalid, has been validated by the State Legislature of Texas, and further because the original signed copies and map of said 1956 ordinance were properly proven and admitted into evidence.

We have carefully examined Ordinance No. 108 and have concluded that it is a valid enactment sufficiently complete in itself, insofar as concerns the issues involved in this case. It is a comprehensive zoning ordinance consisting of some 35 typewritten legal size pages with zoning map attached thereto. It establishes zoning districts, provides rules and regulations for such districts, and provides for a Board of Adjustment and for amendment, and conforms to the requirements of Articles 1011a to lOllj, Vernon’s Annotated Texas Civil Statutes. It is our view that it would not be necessary to look to the 1956 ordinance unless the 1964 ordinance was declared invalid in some pertinent particular. The 1964 ordinance provides that the provisions of all ordinances previously adopted which are in conflict with the lawful provisions of the 1964 ordinance are repealed to the extent of such conflict only, and also that in the event any portion or portions of the 1964 ordinance are unconstitutional, then the corresponding portions of the zoning ordinance of 1956 shall continue to be effective. It defines non-conforming uses and allows certain deviations from the area lot requirements if they existed prior to the 1956 ordinance.

We are also of the opinion that the 1956 ordinance was sufficiently proven and properly admitted in evidence. Appellants’ witness, R. B. Hyde, when presented with the minutes of March 22, 1956, testified in effect that he served on the zoning commission as chairman, and that he remembered that said ordinance was adopted by unanimous vote. The minutes of such meeting reflect that there was a public hearing on the proposed ordinance. The Village secretary testified that the minutes of the Village reflected the passage of the zoning ordinance on March 22, 1956. Robert Hitchcock, who had served as an aider-man for three years and was mayor for three years, identified Defendants’ Exhibit 116 as his copy of the zoning ordinance adopted March 22, 1956. He testified that several copies of the ordinance were signed and he identified the signatures of the mayor and aldermen on the copy of the zoning ordinance introduced in evidence and the signature on the zoning map, Defendants’ Exhibit 117 attached thereto, as being that of Mayor English who served in 1956. He also identified the ordinance of September 6, 1957, Intervenors’ Exhibit 10, as an amendment to the 1956 zoning ordinance, and testified that it was passed while he was mayor, that it had been posted as required by law and that there had been a public hearing upon it before it was adopted by the Council. T. H. Compere, who served as an alderman in 1957, testified that he was in charge of the original records of the City and turned them over to appellant, Collette E. Frost, when Mr. Frost was City Secretary, but he kept some copies and delivered Defendants’ Exhibits 116 and 117 to the then Mayor Sharpe. Mr. Shepherd, who was an alderman in 1956, testified that he prepared the map for the 1956 zoning ordinance.

Since the original records could not be produced, the court properly admitted secondary evidence consisting of the copies of the 1956 ordinance and map which were shown by ample evidence to be true copies of the originals. Gulf, C. & S. F. Ry. Co. v. Calvert, 1895, 11 Tex.Civ.App. 297, 32 S.W. 246, writ denied; Ex Parte Canto, 1886, 21 Tex.App. 61, 17 S.W. 155. It was not essential to the validity of the 1956 zoning ordinance that it be recorded upon the minutes of the Village or placed in the office of the secretary of the Village. Southwestern Lloyds v. City of Wheeler, Tex.Com.App.1937, 130 Tex. 492, 109 S.W.2d 739; Heller v. City of Alvarado, 1892, 1 Tex.Civ.App. 409, 20 S.W. 1003; West Texas Construction Co. v. Doss, Tex.Civ.App.1932, 59 S.W.2d 866, aff’d Tex.Com.App., 96 S.W.2d 1116.

In Southwestern Lloyds v. City of Wheeler, supra, opinion adopted by the Supreme Court, the court said:

“We call attention to the fact that the Court of Civil Appeals was in error in holding in effect that an ordinance was not effective until recorded in the minutes. Under our statutes, an ordinance of a city, such as is the City of Wheeler, need not be recorded in order to become effective. West Texas Construction Co. v. Doss (Tex.Civ.App.) 59 S.W.(2d) 866, affirmed (Tex.Com.App.) 96 S.W.(2d) 1116. This may be important in connection with the copies of ordinances found in the files of the city secretary.”

Furthermore, the 1956 ordinance, if originally invalid for any reason, has been validated by certain Acts of the Texas Legislature. See Articles 974d-6, 974d-9, 966f and 966h, V.A.T.S. In Storm Bros. v. Town of Balcones Heights, 1951, 239 S.W.2d 842, writ ref., n. r. e., the court said with respect to the contention that an ordinance was invalid because there was no compliance with Article lOlld as to the fifteen days’ notice and also because it provided for a penalty and same was not published as required by Articles 1011d and 1013, V.A.T.S.: “After this case was pending on appeal the transcript having been filed in due time, there was enacted by the State Legislature a validating law.”

The court then proceeded to quote certain provisions with respect to the validating law and stated that the validation cured the defects complained of, citing Morris v. City of Conroe, Tex.Civ.App., 47 S.W.2d 690, writ ref.; Cook v. City of Booker, Tex.Civ.App., 167 S.W.2d 232. See also Perkins v. State, Tex.Sup.1963, 367 S.W.2d 140, in which the court stated: “The Legislature clearly has the power to validate any defects in the incorporation of Impact, its boundaries and its governmental proceedings and acts.”

Appellants strenuously urge that the zoning restriction on their property causes them oppressive loss and provides only conjectural benefit to the public as a whole and that it is founded in an improper exercise of the police power. They further contend that the zoning ordinance is arbitrary, capricious, unreasonable and discriminatory, in that it places upon their property an unreasonable restriction not a part of a uniform plan or scheme and in violation of the “due process” and “equal protection” provisions of the United States and Texas Constitutions. Appellants did not request, nor did the trial court make, any findings of fact and conclusions of law. Therefore, as held in North East Texas Motor Lines, Inc. v. Dickson et al., Sup.Ct.1949, 219 S.W.2d 795, “We must, therefore, presume that the trial court resolved every disputed fact issue in favor of petitioner, the winning party and must consider only the evidence which supports its judgment, disregarding all evidence in conflict therewith.” Notwithstanding this general rule of law, we have considered all of the evidence in passing upon appellants’ assignments of error.

The evidence shows that prior to the adoption of Ordinance 108 in 1964, the interior lots in the Village were all restricted to residential use. In the northwest corner of the Village there is a business district facing on Westview Avenue. The lots along the east perimeter of the Village fronting on Wirt Road are for the most part quite large lots, approximately 450 feet in depth. The single residence lots in the interior of the Village facing west on Glowery Drive extend back to the rear boundary line of the large lots facing east on Wirt Road. Beginning at the top of the east perimeter of the Village at the corner of Wirt Road and Westview Avenue is the Lutheran Church. Just south of it is the Unitarian Fellowship Hall and Day School, and then the Cosby home where Mr. and Mrs. Cosby have lived for twelve years. Immediately south of the Cosby home is the Gay six acres which is vacant, and then south of the Gay six acres and adjacent thereto is the tract belonging to appellant, Derland Frost, and the Texaco Station. Abutting appellant’s property on the south is the Methodist Church. Then, in order, going south, the Layton home, the Hammon-tree residence and office, the Browning rent house, the Burkhart home and nursery, the Krenek home, the Mitschke lot, the Raub home and mill-work shop, and finally the Althaus home and two rent houses.

Prior to the adoption of Zoning Ordinance 108 in 1964 the property north of the Methodist Church in the east perimeter was zoned as residential property, and the property south of the Methodist Church was zoned as business property. Ordinance 108 restricts all of said perimeter property fronting on Wirt Road to residential use. Between Burkhart Nursery and the Krenek home there is a street known as Ridgeley which is the only entrance from Wirt Road into the interior of the Village. Just southeast of the Frost property and adjacent thereto is said Texaco Filling Station which was there prior to the adoption of the 1956 zoning ordinance. It fronts on Wirt Road and is between a portion of appellant’s property and Wirt Road.

Most of the improved lots located in the east perimeter of the Village were actually being used as residences, although in case of a few of such lots some sort of business was transacted therein or therefrom, as in the case of the Cosby home where tropical fish were raised for sale. Appellant’s property has been used as a residence and rented by appellant for residential use. Layton’s property is used as a residence. Hammontree’s property is used as a residence, as is also the Burkhart property. Browning’s property is used as a residence but it consists of rental property. Krenek’s tract is also used as a home, and so is the Raub tract. The Althaus tract is used for residential purposes.

At the time appellant, Derland J. Frost, purchased the property in question she knew of the zoning requirement of single family residences. Such property had never been used for anything else but a residence. Wirt Road is the eastern boundary of Hil-shire Village, and the east side of Wirt Road is in the City of Houston and is primarily residential property from West-view south as far as the Methodist Church. There are three churches in the east perimeter facing Wirt Road. In City of Sherman v. Simms, 1944, 143 Tex. 115, 183 S.W.2d 415, it was held that churches are a permissible use in a residential addition. There is evidence showing that Hilshire Village is located in a wooded area, and that it is essentially a residential community, and also that the adjacent area across Wirt Road in Houston is predominantly residential in character.

Prior to the adoption of the zoning ordinance in 1956, appellant’s property in part was restricted to residential use as shown by a dedication and restrictions deed in the chain of title to such property. There was evidence to the effect that the market value of appellant’s property restricted to single family residences was $21,500.00. There was other evidence that such property, if subdivided into residential lots, would bring $56,000.00 without salesmen’s commissions, and that property on Wirt Road unzoned and unrestricted might have a value of $1.00 per square foot. There was also evidence that appellant’s property could be profitably divided into a residential subdivision. One John R. Phenix, an architect, testified that considering various factors in arriving at the best and proper zoning for appellant’s property, it was more suited to residential development than commercial development, giving as one reason its depth and also its wooded character.

One Ellis Monk, who had had fifteen years’ experience in the mortgage business, testified in effect that the residential lots at the rear of appellant’s property would be depreciated 15% to 20% if backed up to commercial property, and would be depreciated 15% if apartments were constructed on appellant’s property. The evidence shows that while there were some business uses made of some of the tracts fronting on Wirt Road lying south of the Methodist Church, such tracts were used for residences. The business uses made of such tracts were reasonably incidental to residential use so that there was merely a nominal or inconsequential breach of the restriction to use such property as single family residences. It has been held that some businesses are permitted in a single family residential area if incidental to use as a residence.

In Hoyt v. Geist, Tex.Civ.App.1963, 364 S.W.2d 461, it was held that a business of an electrical contractor who had no other office and listed his address as his business address was incidental to residential use, and constituted only a nominal or inconsequential breach of the covenant to use the property as a single family residence. In City of Grand Prairie v. Finch, Tex.Civ.App.1956, 294 S.W.2d 851, it was held that “baby sitting” may be permitted in a “single family” residential zone as an incidental use. Moreover, the evidence reflects that there has been no substantial commercial development south of the Methodist Church during the time such property was zoned as commercial, and that during the nine years of commercial classification of that part of the perimeter property no commercial structure was erected.

With respect to the exercise of the police power by the Village in adopting the zoning ordinance, the evidence reflects that if apartments were constructed on appellant’s property, the Village’s police protection would be inadequate as there would be an increased requirement for security officers, and also that if the property was zoned commercial increased patrols would be required. It was also shown that zoning such property as commercial would raise problems of disposing of garbage. The Village has no public water supply, nor any sewage treatment plant. It has contracted with the City of Houston for water and disposal of sewage. There was also evidence to the effect that the Village police force consisted of unpaid volunteer deputies and that there was no policing during the day. The Chief Inspector for the Houston Fire Department testified that apartment houses of all descriptions pose a more severe life hazard than single dwellings.

The evidence also shows that except for the churches and the Texaco Service Station, the structures on the property on the west side of Wirt Road were residences in appearance and were capable of being used as such. One James Dunaway, a city planner, testified that appellant’s property lends itself to single family residences and could be developed as a subdivision since values in that area are up and the area is wooded and desirable residential property. He further testified that it would not be unreasonable to zone the west side of Wirt Road as residential.

In considering all of the evidence and resolving every disputed fact issue in favor of appellees, we are unable to say that the refusal of the appellee, Village of Hilshire Village to change appellant’s property facing on Wirt Road from a residential to a commercial zoning district, is unreasonable, arbitrary or confiscatory as a matter of law. The evidence shows that the house on appellant’s tract had been rented by her and used as a residence and that the property was reasonably capable of being used for residences, and had a substantial value for residential use. Furthermore, the evidence shows that the lots in the rear of such property would be depreciated in value if appellant’s tract was used for commercial purposes, and that the Village would be confronted with problems in connection with parking, traffic, water, sewage, fire hazards and police protection.

In City of Dallas v. Lively, Tex.Civ.App.1942, 161 S.W.2d 895, writ ref., in which the jury found a lot was worth $500.00 if zoned residential and $12,500.00 if zoned for business, the court said:

“An attack upon any regulatory measure of a municipality is usually subject to the following well-settled rules: ‘The legislative body may determine in the first instance whether or not facts or conditions exist warranting a classification; and its determination of that issue cannot be disturbed in the absence of a clear showing that there is no reasonable basis therefor. The presumption is in favor of the validity of the ordinance. It will be presumed, in the absence of a clear showing to the contrary, that the governing body had sufficient reason, in view of local conditions, to make the classification which they have made; and if there could have existed a state of facts justifying the classification or restriction complained of, the courts will assume that it existed. The burden of establishing its discriminatory character is upon a person attacking it on that ground; and any reasonable doubts as to the validity of the classification will be resolved in favor of its validity.’ 30 T.J. p. 132, Sec. 61.

“Without exception, these familiar principles have been applied to zoning ordinances emanating from an authorized police power. Otherwise expressed, a clear abuse of municipal discretion must appear as a predicate for judicial interference. King v. Guerra, Tex.Civ.App., 1 S.W.2d 373, writ refused * * *. To sustain charges that the municipal judgment is arbitrary and unreasonable in its effect upon his property (it is stated in King v. Guerra, supra [1 S.W.2d 376]), ‘ * * * the extraordinary burden rests upon appellee to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it by a valid ordinance in determining a matter of purely governmental policy. * * * So, if it can be said that the evidence in this case raised the issue of the truth of any of the material facts upon which the board refused a permit, then a sufficient answer is that the board were the triers of those facts, and their finding was conclusive and may not be substituted by the finding of a jury.’ * * * ”

In City of El Paso v. Donohue, 1962, 163 Tex. 160, 352 S.W.2d 713, the court said:

“To uphold the position of the respondents in this case we must hold that there were no controversial or issuable facts or conditions existing which would authorize the City Council of El Paso to exercise a discretion in determining whether or not respondents’ application for rezoning should be granted. We must say as a matter of law that the property in question is unsuitable for residential purposes and is in fact business property. This we cannot say when we consider all of the testimony in the record before us.”

In City of Waxahachie v. Watkins, 1955, 154 Tex. 206, 275 S.W.2d 477, it was said: “And the ‘extraordinary burden’ rests on one attacking the ordinance ‘to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it.’” To similar effect see City of Bellaire v. Lamkin, 1958, 159 Tex. 141, 317 S.W.2d 43, 66 A.L.R.2d 1289.

Appellants cite as favorable to their position City of West University Place v. Ellis, 1940, 134 Tex. 222, 134 S.W.2d 1038. We are of the opinion that the facts in the instant case in no way place appellants within the exceptional circumstances shown to exist in the Ellis case. Appellants also rely on Dowsey v. Village of Kensington, N.Y.Ct. of App.1931, 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642. In that case it was contended by the village that apartment buildings on the Middle Neck Road frontage or, indeed, in any part of the village, might cause traffic congestion, fire hazards, and other dangers to the health and safety of the community. The court said: “In truth, the inference from the evidence is clear that these claims are without substance, and that the zoning ordinance has been framed for the purpose of excluding such buildings from the village in order to preserve it as a secluded quiet community of one-family detached homes.”

Although the facts in the Kensington case are somewhat similar to those in the instant case, we cannot say as a matter of law, in view of all the evidence, that the claims asserted by appellees are without substance and “patently unreasonable” as was stated with respect to the claims of the Village in the Kensington case. Furthermore, the 1964 ordinance has not imposed new restrictions on appellant’s property nor changed its original zoning classification. It was originally zoned as residential in 1956 when the first zoning ordinance was adopted, and it has always been used as residential property and it is adapted to residential use. Under these circumstances the reasonableness of the zoning ordinance as applied to appellant’s property is at least debatable thus invoking an exercise of discretion on the part of the Village.

It is our view that appellants have failed to sustain the extraordinary burden placed upon them to establish conclusively the existence of conditions making the refusal of the Village to change the zoning of appellant’s property from residential to commercial arbitrary, capricious and unreasonable.

Judgment affirmed.


author: DENTON, Chief Justice. NORTHCUTT, Justice.

text:
    Carl B. HARBER and Joseph E. Caskey, Jr., Appellants, v. John SWITZER, Appellee.
    No. 7603.
    Court of Civil Appeals of Texas. Amarillo.
    May 9, 1966.
    Rehearing Denied June 13, 1966.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellants.
    Fitzjarrald & Poole, Amarillo, for ap-pellee.
   DENTON, Chief Justice.

This is an appeal from the order of the trial court overruling the defendants’ plea of privilege to be sued in Hutchinson County, Texas, the county of their residence. John Switzer filed suit for personal injuries suffered as a result of an automobile-truck collision which occurred in Gray County, where this suit was filed. Plaintiff’s controverting affidavit sought to hold venue in Gray County under Section 9a of Article 1995, Vernon’s Ann.Civ.St. Various acts and omissions of defendants were alleged to constitute negligence and proximate cause of plaintiff’s injuries resulting from the collision. The defendants contend there is no evidence and insufficient evidence to support the implied findings of negligence and proximate cause.

There being no findings of fact or conclusions of law, it is presumed the trial court found all fact issues raised by the evidence in favor of the judgment. In determining the sufficiency of the evidence to support the trial court’s judgment, it is our duty to examine the testimony in the light most favorable to appellee and to indulge every reasonable inference in support of the judgment. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97. Appell Petroleum Corporation v. G. W. Townsend Lease Service (Tex.Civ.App.), 375 S.W.2d 547.

The collision occurred at the intersection of U. S. Highway 66 and State Highway 273 just west of the city limits of McLean, Gray County, Texas. It was stipulated the truck being driven by defendant Caskey was owned by defendant Harber; and that Caskey, Harbor’s employee, was in the course of his employment. Switzer, the plaintiff, was a passenger in an automobile driven by Robert McDonald, who was killed in the collision. The car was proceeding west on U. S. 66 while the truck was proceeding south on State 273. A stop sign faced traffic proceeding south on State 273; and a hanging traffic light was in the center of that intersection. The light flashed red for State 273 traffic and an amber light for U. S. 66 traffic. U. S. 66 was the through highway. The investigating highway patrolman and plaintiff were the only witnesses at the hearing below. The defendants offered no evidence. The patrolman testified Caskey told him at the scene he “pulled up to the stop sign and stopped and he let one car go by, one car traveling west; he was traveling south, and he pulled up and stopped and let a car go by, and then he pulled out in the intersection”. The patrolman further testified “I believe he (Caskey) said he didn’t see him”. It is undisputed there was nothing to obstruct Caskey’s vision for some 400-500 feet in the direction from which the McDonald automobile was approaching the intersection.

To maintain venue when a defendant has filed a plea of privilege, all the plaintiff is required to do is to make out a prima facie case, and if the evidence is sufficient to support a finding in favor of the plaintiff in the absence of any evidence offered by the defendant, it is proper to overrule the plea of privilege. Austin Road Company v. Willman (Tex.Civ.App.), 303 S.W.2d 878; Plains Transport, Inc. v. Parker (Tex.Civ.App.), 359 S.W.2d 556. (Writ Dis.)

In facing the stop sign upon his approach to U. S. 66, Caskey’s duty is determined by the provisions of Section 73(b) Article 6701d, Vernon’s Annotated Civil Statutes. This section of the statute not only required Caskey to stop, but it requires that he “shall proceed cautiously, yielding to vehicles not so obligated to stop which are within the intersection or are approaching so closely as to constitute an immediate hazard, but may then proceed”. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 lays down the rule relative to care required of drivers, in the relative position of Caskey, as they approach intersections. The court there held:

“Before entering and while crossing the heavily traveled, through street, it was Mrs. Ricketts’ duty not only to look but to observe in a careful and intelligent manner the traffic and general situation at and in the vicinity of the intersection, including the speed and proximity of vehicles approaching from either direction.”

In view of the evidence of the respective rights-of-way of the drivers; the unobstructed view of the defendant Caskey; and the latter’s statement to the investigating patrolman at the scene, we are of the opinion the evidence was sufficient to raise issues of fact as to one or more of the alleged acts of negligence of the defendants, including failure to keep a proper lookout; failure to yield the right-of-way; and failure to apply brakes in sufficient time to avoid the collision. There was ample evidence to sustain the trial court’s findings that Caskey was negligent and that such negligence was the proximate cause of plaintiff’s injuries resulting from the collision. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774. (SW.L. 1). Triangle Truck Line, Inc. v. Kelley (Tex.Civ.App.), 344 S.W.2d 520.

The judgment of the trial court is affirmed.

DISSENTING OPINION

NORTHCUTT, Justice.

I respectfully dissent.

Appellants present this appeal upon four points of error contending there is no evidence to support the court’s implied finding of negligence on the part of defendant Joseph E. Caskey, Jr.; no evidence to support the court’s implied finding that negligence on the part of the defendant Caskey was a proximate cause of the collision; that the implied finding that Caskey was negligent was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and that the implied finding that negligence on the part of Caskey was a proximate cause of the collision was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

Since appellants had filed their plea of privilege in proper form and appellee had filed his controverting plea, it was necessary that appellee plead specifically and prove the facts relied upon to bring the case within the exception. A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619. We think it is well settled that the burden rests on the plaintiff to prove negligence and proximate cause to maintain venue in Gray County where the suit was filed under Subdivision 9a of Article 1995. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63; Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605; Lynch v. Millican, Tex.Civ.App., 304 S.W.2d 410; Watkins v. Goolsby, Tex.Civ.App., 337 S.W.2d 363.

In considering the contention of no evidence, we must consider whether there is any evidence of probative value which with the inferences that may be properly drawn therefrom will reasonably support the findings of the court. This plea of privilege was submitted to the court without a jury. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616. As to the findings being so against the overwhelming weight and preponderance of the evidence as to be clearly wrong we must consider and weigh all of the evidence in the case. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The plaintiff’s petition alleged a collision between an automobile driven by one McDonald in which plaintiff was riding as a passenger and a truck owned by the defendant Harber and driven by the defendant Caskey. It was alleged that the collision occurred at the intersection of Highway 66 and State Highway 273; that the McDonald vehicle was proceeding westerly on Highway 66 and defendant’s truck was proceeding southerly on Highway 273 and that traffic on Highway 273 faced a properly erected stop sign. The acts of negligence charged to defendants embraced a claimed deficiency in lookout; a claimed failure to apply brakes; a claimed failure to yield the right-of-way; and a claimed entry into the intersection in violation of the statute.

Only two witnesses testified in this hearing; namely, R. C. Parker, a Texas Highway Patrolman, and appellee Switzer. Parker did not see the accident and testified from his investigation at the scene of the accident and what Caskey told him. Switzer testified he never saw the truck until just a split second before the collision. The undisputed evidence shows the following: the accident occurred on April 8, 1965, at approximately 5:30 o’clock in the afternoon. The weather was clear. The accident occurred at the intersection of Highway 66 and State Highway 273, which was thirty feet west of the city limits of McLean. Highway 66 at the point of the accident was a four-lane divided highway, two lanes for west bound traffic, and two lanes for east bound traffic. Highway 66 extends east and west. State Highway 273 extends north and south. Just prior to the accident appellee was trav-elling west on Highway 66 and appellants were travelling south on State Highwav 273. Appellee was a passenger in an automobile owned and operated by Robert McDonald at the time of the collision.

The only evidence as to the action of Caskey, the driver of the truck, was produced when appellee’s attorney questioned Mr. Parker as follows:

“Q. What, if anything, did Mr. Caskey tell you about the collision, and I specifically want to know what he stated, as near as you can remember, as to whether or not he saw the McDonald car ?
“A. The best I recall, he told me that he pulled up to the stop sign and stopped and he let one car go by, one car travelling west; he was travelling south, and he pulled up and stopped and let a car go by, and then he pulled out in the intersection.
“Q. And did he or not say that he did not see the McDonald car?
“A. I believe he said he didn’t see him.”

There is no other evidence to establish negligence on the part of Caskey, the driver of the truck.

Mr. Parker testified there was a motel that was approximately four to five hundred feet to appellant’s left, the direction from which appellee was approaching, that would block his view of an oncoming car and that appellant could not see a car trav-elling west until the car had passed the motel. There is no evidence to show that the McDonald car had passed the motel when appellants entered the intersection. The undisputed record shows that McDonald was driving his car in excess of the speed limit at all times pertinent to the facts of this hearing. The speed limit in the City of McLean was 30 m. p. h. There is no evidence as to width of Highway 66. The point of impact was located as thirty-one feet and four inches southwest of the northeast curb of the intersection. Parker gave as his estimate of the speed of the McDonald car at the time of the collision as being 80 m. p. h.

The occurrence of an accident or a collision is not of itself evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Davis v. Castile, Tex.Com.App., 257 S.W. 870; Phillips v. Citizens’ Nat. Bank, Tex.Com.App., 15 S.W.2d 550.

Section 73 of Article 6701d, V.T.C.S., provides as follows:

“(a) The driver of a vehicle shall stop as required by this Act at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway.
“(b) The driver of a vehicle shall likewise stop in obedience to a stop sign as required herein at an intersection where a stop sign is erected at one or more entrances theretp although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed.”

The undisputed record in this case is that appellants stopped as required by Section 73, supra, and were proceeding across Highway 66 when the accident happened. There is no evidence to show where the McDonald car was or that it was in sight when appellants entered the intersection as to constitute an immediate hazard. The undisputed evidence shows Caskey was so far into the intersection at the time of the accident that he was entering into the east bound traffic lane and should have been observing traffic approaching from his right. It is also undisputed that appellants were in the intersection when the McDonald car was approaching the intersection and under Section 71 of Article 670 Id the McDonald car had to yield the right-of-way to the appellants. We do not believe appellee has established by the evidence negligence and proximate cause as required under Section 9a of Article 1995, V.T.C.S.

I think the case should be reversed and judgment rendered sustaining appellants’ plea of privilege.


author: DENTON, Chief Justice.

text:
    DIAL FINANCE & THRIFT COMPANY et al., Appellants, v. Lillian M. DENNIS, Appellee.
    No. 7472.
    Court of Civil Appeals of Texas. Amarillo.
    May 30, 1966.

      Clayton, Kolander, Moser & Templeton, Amarillo, for appellants.
    Lockhart & Wilds, Henry T. Ray, Amarillo, for appellee.
   DENTON, Chief Justice.

This cause, an action for the recovery of money fraudulently collected and for exemplary damages, was before this court as reported in 392 S.W.2d 717. The Supreme Court reversed this court’s judgment as reported in 401 S.W.2d 803 and directed this court to consider appellant’s point of error which contends the amount of exemplary damages awarded by the jury is excessive. We make reference to both prior opinions for a full statement of the case.

Actual damages were found by the trial court to be the sum of $68.58 and the jury awarded appellee $3250.00 exemplary damages. Appellant places emphasis on the relationship of the actual damages and the amount of the recovery of exemplary damages. The ratio between the two is approximately 47 to 1. While the courts have never placed an exact ratio between actual and exemplary damages, the cases hold that exemplary damages should be reasonably proportioned to the actual damages sustained; 17 Tex.Jur.2d, Section 187, page 256 and cases cited. The ratio must necessarily be determined from the facts of a particular case in order to determine whether or not the award was made as a result of passion and bias. Cotton v. Cooper (Tex.Comm.App.) 209 S.W. 135 (Opinion adopted). Houston-American Life Insurance Company v. Tate (Tex.Civ.App.) 358 S.W.2d 645. Lyon v. Wood (Tex.Civ.App.) 363 S.W.2d 179. Schutz v. Morris (Tex.Civ.App.) 201 S.W.2d 144.

Many cases could be cited which have both upheld and declared excessive various amounts of exemplary damages. However, each case must finally be determined on the facts and circumstances of the particular case. After reviewing the facts of this case, summarized in the prior decisions, we are of the opinion the award of $3250.00 exemplary damages is excessive by the sum of $2250.00. Therefore, under Rule 440, Vernon’s Ann.Texas Rules of Civil Procedure, this court is under a duty to reverse and remand this case unless ap-pellee files a remittitur of $2250.00 within ten days from the date of this opinion. In the event such remittitur is filed within that time, the judgment of the trial court will be affirmed as reformed.

Affirmed on condition of remittitur.

SUPPLEMENTAL OPINION

The appellee has timely filed a remittitur of $2250.00 in compliance with this court’s opinion of May 30, 1966. The judgment of the trial court is reduced by the amount of the remittitur and reformed so as to provide recovery only against appellant Dial Finance & Thrift Company for exemplary damages. The judgment, as so modified and reformed, is affirmed with costs of this appeal assessed equally against appellee and appellant Dial Finance & Thrift Company.


author: SHARPE, Justice.

text:
    Mary Perez GARZA et al., Appellants, v. Albert P. PEREZ et al., Appellees.
    No. 196.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 26, 1966.
    Gerald Weatherly, Fort Worth, for appellants.
    Wade & Howard, by Faires P. Wade, Corpus Christi, for appellees.
   OPINION

SHARPE, Justice.

Appellants’ single point of error asserts that the district court erred in overruling their (defendants’) plea to its jurisdiction over the subject matter of appellees’ (plaintiffs’) suit.

This is a partition suit. The parties are Pedro A. Perez, surviving husband of Margarita P. Perez, deceased, and seven children of their marriage. Pedro A. Perez and three of his children, appellees here, were plaintiffs, and four other children, appellants here, were defendants in the court below. Judgment was rendered, after jury trial, adverse to appellants.

Appellants argue that the district court was without jurisdiction because administration was pending on the Estate of Margarita P. Perez, deceased, in the county court. Appellants concede that prior to the trial herein the county court entered an order closing administration on that estate, but contend that an appeal was taken therefrom, and, in any event, that such order was void on its face.

Appellees contend that: (1) the district court had exclusive jurisdiction of the subject matter of the suit; (2) that there was no administration pending upon the Estate of Margarita Perez, deceased at the time of trial because no appeal had been perfected from the order of the county court closing the estate; (3) that appellants are estop-ped to claim that administration was pending upon said estate and that they have consented to the jurisdiction of the district court; and (4) that appellants waived their right to object to the jurisdiction of the district court.

We agree with appellees’ contentions made under their point 2 that an appeal had not been perfected from the order of the county court closing administration upon the estate of Margarita Perez, deceased. It is also our view that the judgment of the county court closing the administration on the estate of Margarita P. Perez is not void on its face, and therefore not subject to collateral attack as is made here. However, without regard to such holdings, it appears in any event, that appellants are estopped from claiming that administration was still pending upon said estate, that ap-pellees’ Reply Point Number 3 must be sustained and the judgment affirmed.

The instant suit was filed by appellees on July 27, 1964. Appellants first filed an original answer containing a general denial and on October IS, 1964 filed an amended original answer and a cross-action. Thereafter, defendants, on January 29, 1965 filed their second amended original answer and cross-action, and on February 11, 1965 filed their third amended answer and cross-action. It was in this last-mentioned pleading that appellants, for the first time, asserted a plea to the jurisdiction of the district court based upon the pendency of the administration in the county court. Meanwhile, in prior amended pleadings, appellants had prayed for appointment of a Receiver to partition the jointly owned property, for the sale thereof, and for other relief. All parties agreed to a preliminary decree of partition of separate tracts which were jointly owned by them and to the appointment of a Receiver to sell the same at private sale. The order of the court, entered upon the agreement of all parties, also provided that after the sale the proceeds thereof should be paid into the court and be partitioned according to the respective interests of the parties, to be determined at a later hearing which would include claims for accounting of income and expenditures. That order was entered on October 26, 1964. The receiver’s report of sale of one tract, dated November 4, 1964 was approved by the court on November 9, 1964. An additional receiver’s report of sale of another tract was made on December 11, 1964. The effect of such action by the parties and the court is highly material in determining whether the trial court erred in failing to sustain appellants’ plea to the jurisdiction filed on February 11, 1965.

The district court has potential jurisdiction of suits for partition. Art. 6083, Vernon’s Ann.Civ.St. Such jurisdiction was invoked herein by appellees, was not originally questioned by appellants, and the exercise of it was specifically agreed to by all parties, as hereinbefore mentioned. While it is true that jurisdiction of a court cannot be conferred by consent where it is otherwise lacking, it is also the rule that where the court has potential jurisdiction, the parties may agree to the existence of jurisdictional facts which will authorize exercise of it. In Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726 at pages 728, 729 (1941), affirming Tex.Civ.App., 132 S.W.2d 125, the court said:

“Betty Kirk et al. argue that potential jurisdiction is a matter of law, and cannot be conferred by agreement. We recognize that such is the rule. A court cannot render a valid judgment in a case where it has no potential jurisdiction; and where potential jurisdiction is actually lacking, it cannot be conferred by agreement of the parties. In spite of this, where potential jurisdiction is dependent on the existence of facts, the litigating parties to a cause can agree on the jurisdictional facts; and from such agreed facts the court can determine the question of jurisdiction. Maul v. Williams, Tex.Com.App., 69 S.W.2d 1107, opinion approved; Texas Employers’ Ins. Ass’n v. Wright, Tex.Com.App., 4 S.W.2d 31; 11 Tex.Jur. p. 717, § 12. From the above rule we think that where the potential jurisdiction of a court to try a given case depends on certain facts, and both sides to the cause allege such facts in their pleadings, they have, in legal effect, agreed to the jurisdictional facts.”

Examination of the record herein reflects that prior to asserting a plea to the jurisdiction, the appellants had in effect agreed to all essential jurisdictional facts and the trial court had exercised its jurisdiction pursuant thereto. Such conduct and the affirmative action taken by appellants estops them to deny the jurisdiction of the trial court. The applicable rule is well stated in Spence v. State Nat. Bank, 5 S.W.2d 754 (Comm.App.1928), as follows:

“ * * * The plaintiffs in error having invoked the jurisdiction of the court to appoint a receiver of their property (the court having jurisdiction over the subject-matter), they will not thereafter be permitted to question the validity of such appointment for the want of jurisdiction. Rodman v. Moody, 14 Ky.Law Rep. 202; Peralta v. Mariea, 3 Cal. 185; Lounsbury v. Catron, 8 Neb. 469, 1 N.W. 447; Dock v. Cauldwell, 19 Pa.Sup[er]. 51; Whipkey v. Nicholas, 47 W.Va. 35, 34 S.E. 751; Cooney v. Bonfield, 172 Ill.App. 657; Washington Bridge Co. v. Stewart, 3 How. 413, 11 L.Ed. 658 (by analogy); Farmers’, etc., Bank v. Foshee, 170 Ark. 445, 280 S.W. 380; Moran v. Miller, 198 Ind. 429, 153 N.E. 890; Budlong v. Budlong, ([48] R.I. [483]) 139 A. 298. To permit one to invoke the exercise of a jurisdiction within the general powers of a court and then to reverse its orders upon the ground that it had no jurisdiction would be to allow one to trifle with the courts. The principle is one of estoppel in the interest of a sound administration of the laws whereby the regularity or even validity of an act procured by one himself cannot be raised — not that the act is valid, for it may not be, and es-toppel does not make valid the thing complained of, but merely closes the mouth of the complainant. But the appointment was not entirely beyond the court’s power; it was merely an improper exercise of jurisdiction, presenting what would ordinarily be a reversible error. It cannot be such here, upon the familiar rule of practice that one will not be allowed to take advantage of an error of the court which has been invited by him.”

The case of Wells v. Gray, 241 S.W.2d 183 (Tex.Civ.App.1951, writ refused) is strongly relied on by appellants and is the only case cited in their original brief. We do not consider that decision as controlling here. There the county court in an administration on the estate of E. J. Thomas, had held, upon application of Ethel Thomas Wells to have her heirship declared, that she was the adopted daughter of Thomas and his deceased wife. On appeal, the district court sustained special exceptions to Mrs. Wells’ pleadings, which challenged the jurisdiction of the court, and dismissed the cause. The Court of Civil Appeals reversed the judgment of the district court and held that the matter of heirship (in that case based upon adoption under equitable estoppel) may properly be determined in the county court in administration proceedings then pending there, where the district court in an original proceeding had not acquired jurisdiction over the persons and estate. The Court of Civil Appeals summarized the rules applicable to determination of the court in which the issue of adoption, as it relates to heirship, may properly be commenced and tried. One of these rules is that when the district court originally obtains power and jurisdiction over all the parties and the subject matter, it may determine the heirs of a decedent and do all things necessary and proper to ascertain the lawful owners and effect the partition.

In the instant case it is conceded by appellants that no steps were ever taken in the county court administration proceeding to either partition or determine heirship. The record further reflects that on July 9, 1957, Pete Perez, the administrator of the estate of Margarita P. Perez, filed an application to close the estate which recited among other things, that his father, Pedro A. Perez, had contested the appointment of Pete Perez as administrator; that the administrator had not come into possession or control of any assets of the estate and had performed no duties as administrator; that Pedro A. Perez had, in effect, acted as administrator to the extent it had been had; and that after notice, the administration should be closed and Pete Perez, and the sureties on his bond, discharged. The order of the county court, dated February 11, 1965, recited, among other things, that Pete Perez had applied to close the administration; that there was no necessity for further administration and that it was thereby closed. The record further reflects that Pedro A. Perez, the father, claimed the right to handle the estate of his deceased wife as community survivor, and such action effectively prevented administration on said estate by Pete Perez. We are of the opinion that under these facts and others hereinbefore recited, that appellants were and are estopped to assert their belated plea to the jurisdiction of the district court, and that the holdings in Wells v. Gray, supra, where that specific question was not involved, are not contrary to our holding here.

Appellants’ point asserting that their plea to the jurisdiction of the district court should have been sustained is without merit.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    Joe W. MAYES, Appellant, v. CITY OF WICHITA FALLS, Appellee.
    No. 16734.
    Court of Civil Appeals of Texas. Fort Worth.
    May 20, 1966.
    Rehearing Denied June 17, 1966.

      Mock, Banner, McIntosh & Wells, and Jack G. Banner, Wichita Falls, for appellant.
    H. P. Hodge, Jr., City Atty., and Bill E. Gowan, Wichita Falls, for appellee.
   OPINION

MASSEY, Chief Justice.

This is a case where plaintiff brought suit against a municipality premised upon tort liability, and where the municipality advanced the defense that the negligence of its agent (by reason of which plaintiff sought to impose liability) was committed in the exercise of a governmental rather than a proprietary function.

The trial court rendered judgment of non-liability upon it being positively established that the tort was committed pursuant to the discharge of a governmental function, although this ruling was made after a full trial and after the jury had returned a verdict in which every special issue was answered in accord with plaintiff’s contentions, and the amount of damages found. Plaintiff appealed.

We affirm.

Plaintiff-appellant Joe W. Mayes brought suit individually and in behalf of the survivors of Donald Mayes, deceased, against the City of Wichita Falls. Donald Mayes was killed as the result of a collision between the automobile in which he was a passenger and an unmarked automobile of the Police Department of the City of Wichita Falls, ordinarily used by plain-clothes detectives and not in the course of the policing of traffic but which was being so used at the time of the collision. The officer driving the automobile in a high-speed chase of a third person on the city streets of Wichita Falls, without a siren or other sound, sign or symbol which would warn innocent bystanders of the vehicle’s approach, was undoubtedly exercising poor judgment in undertaking the chase of a suspect under the circumstances existent at the time, and there seems little question but that he was negligent as found by the jury-

A single point of error is presented by plaintiff-appellant. It reads: “The Trial Court erred in mistakenly applying the theory of Governmental Immunity so as to bar Appellants’ recovery on the Jury Verdict, and by entering Judgment Non Ob-stante Veredicto for the City of Wichita Falls.” Thereunder it is contended that under the undisputed facts and evidence the case should be held to be one wherein the Doctrine of Municipal Immunity should be held inapplicable for three enumerated reasons. They are listed as: “A. A municipality is liable for inherently dangerous conduct, whether governmental or proprietary in nature; B. A municipality is liable for the failure to use due care in properly selecting and/or equipping its automobiles; and, C. A municipality is liable when it breaches its non-delegable duty to properly instruct and/or supervise its employees in the performance of their duties.”

Assuming that the act of the police officer, agent of the defendant city, was inherently dangerous conduct; and furthermore assuming that the city did fail to properly instruct and supervise him in the performance of his duties as a police officer under the circumstances, yet the established law of this State presently inhibits the imposition of liability upon the city.

A municipality is not liable for the negligence of its officers in appointing incompetents for the police force or other positions even though known by the appointing officer to be incompetent. McQuillin, Municipal Corporations, 3rd Ed., Ch. 53, “Municipal Liability for Torts”, § Tex. 225, 107 S.W.2d 872, 879 (1937); 40 53.78, “Duty as to employing ‘competent’ servants”; City of Dallas v. Smith, 130 Tex.Jur.2d, p. 303, “Municipal Corporations”, § 618, “Exercise of governmental functions or duties”. It follows that there would be like immunity for negligent retention of known incompetents and even though the incompetence was the result of the municipality’s failure to remedy such by supervision and/or instruction.

The fact that the city’s agent, in the discharge of the governmental police function was guilty of acts and/or omissions which would constitute inherently dangerous conduct on his part would not alter the municipality’s immunity under the rule applicable to governmental functions. In such instances the liability of the municipality, if any, would be premised upon the doctrine of respondeat superior. The theory is that the action of the agent is not acting merely for the municipality but for the State itself, even though the action be in an attempt to enforce a municipal ordinance rather than a statute. McQuillin, Municipal Corporations, 3rd Ed., Ch. 53, “Municipal Liability for Torts”, § 53.79a, “(Policeofficers)—Immunity”; 40 Tex.Jur.2d, p. 311, “Municipal Corporations”, § 624, "Exercise of police power”. There would be no distinction to be made whether the conduct in question be inherently dangerous or would constitute mere ordinary negligence.

Regarding the physical equipment through the use of which an injury be sustained a different question is presented. Considered as a non-delegable duty on the part of the municipality to provide reasonably suitable and safe equipment to the police officer for use in the exercise of his duties, we have under consideration the question of negligence on the part of the defendant city as such, and not the question of its liability through propriety of an imposition thereof under the doctrine of respondeat superior. There is no doubt that but for the municipal immunity doctrine there would be a common law duty to provide reasonably suitable and safe equipment appropriate to the objective to be accomplished. But municipal immunity would persist except in instances where there is an obligation or penalty imposed upon the municipality by law or where its act or omission constituted a positive invasion of individual rights guaranteed by the Constitution. McQuillin, Municipal Corporations, 3rd Ed., Ch. 53, “Municipal Liability for Torts”, § 53.08, “(Character and cause of injury)—Nonfeasance”; 40 Tex.Jur.2d, p. 310, “Municipal Corporations”, § 623, “In general; Exercise of discretionary powers”; 63 C.J.S. p. 308, Municipal Corporations § 903, Police or Fire Stations, Apparatus, and Appliances, p. 308. As applied to the case under consideration there was no obligation or penalty imposed upon the municipality by law in regard to the care or duty as to the selection or equipping of any automobile to be used by police officers in the discharge of any police function. No question exists of any constitutionally inhibited invasion of the rights of any individual.

The parties devote considerable space to the proposition that the doctrine of governmental immunity is morally and judicially wrong. It is suggested that this court should “do what is right and abrogate this harsh Doctrine in Texas”. Such is not the province of an intermediate Court of Appeals.

There are some cross-assignments and cross-points of error presented for our consideration in the event we should sustain the point of error upon which the appeal is presented. Not having sustained such they are not considered.

Judgment is affirmed.


author: PARKER, Justice.

text:
    Earl MORRIS, Appellant, v. R. M. JONES, Appellee.
    No. 6794.
    Court of Civil Appeals of Texas. Beaumont.
    April 21, 1966.
    Rehearing Denied June 8, 1966.
    Clarence D. Cain, Everett H. Cain, Liberty, for appellant.
    J. C. Zbranek, Liberty, Bryce A. Taylor, Burnet, for appellee.
   PARKER, Justice.

R. M. Jones sued Earl Morris on a parol contract and in the alternative upon quantum meruit for the pasturing, caring for, and feeding cattle owned by Earl Morris and for reasonable attorney’s fees under Article 2226, Vernon’s Ann.Rev. Civ.St.Tex. Upon quantum meruit issues a jury verdict was returned in favor of Jones upon which judgment was entered for Jones against Morris for the total sum of $4,327.00.

Defendant Morris’ first point of error is:

“The Court should not have denied Defendant the right to file his First Amended Original Answer when there was no showing that such would operate as a surprise to Plaintiff.”

This suit was originally filed in the district court of Walker County. Defendant Morris filed a plea of privilege and answer of general denial on April 17, 1963. Jones’ first amended original petition was filed September 23, 1964. Morris filed his first amended original answer in the district court of Liberty County on October 20, 1964, the date set for trial. This pleading for the first time contained affirmative defenses. Plaintiff Jones objected to the filing of defendant’s amended pleading for the reason that it was not seasonably filed, not filed in accordance with the rules and that the same constituted new matters which were a surprise to Jones. This first amended original answer of defendant’s was tendered for filing 18 months after his original answer was filed on April 17, 1963. The trial court refused to allow Morris to file his first amended original answer, sustaining Jones’ objections. The record shows no abuse of discretion on the part of the trial court in refusing to allow the filing of defendant’s first amended original answer 18 months after the original answer was filed containing a simple general denial only. Rule 63, Texas Rules of Civil Procedure. Defendant did not withdraw his announcement of ready but proceeded to trial. Defendant’s point of error No. 1 is overruled.

In answer to special issues, numbered below, the jury found:

1.That plaintiff R. M. Jones pastured and cared for the 123 heifer calves and 2 bull calves mentioned in plaintiff’s petition, belonging to defendant Earl Morris with knowledge on the part of Morris that the same was being done.
2. The fair market value of the pasturing and care of said calves by plaintiff was $3,000.00.
3. Plaintiff R. M. Jones made a demand on defendant Earl Morris for payment of the account made the basis of this suit at least 30 days prior to March 22, 1963.
4. $1,000.00 would fairly and reasonably compensate the attorneys for the plaintiff for bringing plaintiff’s action on his account.

From the judgment and the findings of the jury it appears the case was submitted to the jury on the alternative plea of quantum meruit and judgment entered thereon.

Defendant’s points of error 2, 3, 4, 5, 6, and 7 will be considered together, and are as follows:

“2. The Court should not have entered judgment for the Plaintiff on the verdict of the jury, on Plaintiff’s action on contract, because it was established by the undisputed evidence and admission of Plaintiff that Plaintiff had willfully failed to perform part of an indivisible contract made the basis of his suit and further that the contract was not as alleged by Plaintiff.
“3. The Court should not have entered judgment for the Plaintiff on the verdict of the jury, because, having breached the indivisible contract between the parties, Plaintiff was not entitled to recover on quantum meruit without a finding of the reasonable value of the services rendered and knowingly accepted by Defendant.
“4. The Court should not have entered judgment for the Plaintiff on the verdict of the jury,,because the undisputed evidence showed that Plaintiff’s suit on quantum meruit was based on partial performance of an indivisible contract involving approximately 360 head of cattle, pastured and cared for by Plaintiff, for which Defendant had paid Eight Thousand Two Hundred and Thirty-Two and 84/100ths. ($8,232.84) Dollars to Plaintiff and there was no finding as to the reasonable value of services rendered and accepted by Plaintiff as to the entire contract, upon which to credit said payment.
“5. The Court should not have overruled Defendant’s exception and objection. No. 3 to Special Issue No. 1 because the issue should not have been confined to a part only of the cattle involved and for other reasons there stated.
“6. The Court should not have overruled Defendant’s exception and objection to Special Issue No. 3 — when the undisputed evidence showed Plaintiff was not entitled to recover on his alleged account or for any item as claimed therein.
“7. The Court should not have submitted issues on attorney’s fees or have rendered judgment therefor where Plaintiff failed to establish that he was entitled to recover the amount claimed to be presented for payment and no claim for the reasonable value of services accepted by Defendant on quantum meruit, was ever presented to Defendant.”

It is undisputed that defendant delivered 125 head of cattle to plaintiff to be pastured and cared for on plaintiff’s premises. Under the contract plaintiff was to be paid 12 cents per pound on the gain. The agreement was the cattle were to be delivered to Jones in October of 1961 by Morris and picked up in September of 1962. Morris was to pay for care of the cattle and for pasturage on plaintiff’s land. It was not a gratuitous service. Defendant Morris testified that the reasonable and customary price for care and pasture of cattle was $1.50-2.50 per head per month. Jones spent approximately $1,200.00 on feed for the calves, checked the cattle an average of once a week, and when he gathered the cattle it took five men three days to do so. The calves were 27,000 pounds heavier when picked up by Morris than when delivered to the ranch of plaintiff. The undisputed proof shows that defendant was benefited by at least $5,670.00 less the cost of the care and pasturing. The jury found that the plaintiff did pasture and care for the cattle with the knowledge of the defendant and that the fair market value of such pasturage and care was $3,000.00. Defendant accepted the benefits of the gain in weight of the calves and sold them at a profit.

Defendant and plaintiff had one oral contract containing two agreements. One was for the care and pasturage of 246 head of steers. This contract had been fully performed and paid for on September 6, 1962, before any of the calves involved in this suit were weighed and picked up by defendant. The compensation for caring and pasturing of the steers was upon a different basis than for the calves. The contract relating to the 246 head of steers from the record appeared to have been performed by the parties, respectively, and such performance accepted. In the light of the acts of the parties the contract as to the calves was divisible from the contract as to the steers. Agreement as to the steers was not dependent upon the agreement as to the calves. Smith v. Crosby, 47 Tex. 121; 13 Tex.Jur.2d, § 120, pp. 283, 284, states:

“A frequently used test to determine divisibility is whether or not the consideration for the agreement is apportion-able, either expressly or by necessary implication. More specifically, a contract is generally held to be divisible where the part to be performed by one party consists of several distinct and separate items and the price to be paid by the other party is either apportioned to each item or left to be implied by law. Again, a contract for the sale of different articles at the same time and for separate prices is usually held divisible unless the contract itself, or the acts of the parties or the nature of the subject matter, compels a contrary conclusion.”

To the same effect is 2 Elliott on Contracts, § 1543:

“ * * * A divisible contract is one which from its nature and purposes is susceptible of division and apportionment, and has two or more parts in respect to matters and things embraced by it, and not necessarily dependent on each other, and the parties do not intend that they shall be. The fact that the contract is embraced in one instrument does not make it entire and indivisible. Whether or not the contract is entire or divisible depends on the intention of the parties. The intention is to be ascertained from the language used, the subject-matter of the contract, and from a consideration of all the circumstances.”

The contract on the calves required Jones to dehorn, brand, castrate and care for them just as he would his own. He didn’t de-horn, castrate and brand his own cattle or defendant’s calves because of a screw worm epidemic. Neither did defendant furnish bulls for breeding them as agreed upon. Therefore, plaintiff brought suit upon quantum meruit. The steers were not involved in this suit, nor did defendant have any affirmative pleading. Plaintiff’s suit on quantum meruit was not a recovery upon contract.

Plaintiff’s petition limited itself to 123 heifer calves and 2 bull calves. Special issue No. 1 was properly confined to the cattle involved in the suit.

Plaintiff elected to try his suit on quantum meruit and not upon the alleged contract with the attached itemized account.

Prior to March 22, 1963, the evidence shows that Jones sent weight tickets on the cattle to Morris, called Morris on the telephone demanding payment and thereafter sent a letter with an itemized account to Morris. Letters and oral demands are sufficient under Art. 2226. Huff v. Fidelity Union Life Ins. Co., 158 Tex. 433, 312 S.W.2d 493 (1958). The claim was based on pasturage and care of the calves. Demand of money payment was made by plaintiff of defendant, although he did not recover in this suit the amount demanded. Plaintiff rendered personal services and labor in the care of the cattle which he fed, ear ticked, drenched and sprayed, and saw that the heifers were bred with his own bulls. He used his experience, his employees and their physical labor and services in moving them to a better pasture, and in keeping up a number of the calves delivered to him to feed and care for daily until strong enough to put on the range. He relied upon his judgment in not branding and dehorning the defendant’s calves because of the dangers from a screw worm epidemic. This decision was sustained by other cattlemen as being sound. All of appellant’s (defendant’s) points of error are overruled.

Judgment affirmed.