author: McDONALD, Chief Justice.

text:
    CITY OF WACO, Appellant, v. Leslie C. DuPUY, Jr., Appellee.
    No. 4242.
    Court of Civil Appeals of Texas. Waco.
    Dec. 31, 1964.
    Rehearing Denied Jan. 21, 1965.
    Thomas R. Hunter, City Atty., Earl Bracken, Asst. City Atty., Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
    Ñaman, Howell, Smith & Chase, Waco, for appellee.
   McDONALD, Chief Justice.

Plaintiff DuPuy filed this suit against the City of Waco to recover damages to his property, caused by the construction by the City of a viaduct on 17th Street, on which fronted plaintiff’s property. None of plaintiff’s property was taken by the City in the construction; but the construction of the viaduct cut plaintiff’s property completely off from 17th Street, and rendered it accessible only by an alley, and by a way under the viaduct which connects with Mary Street to the South, and upon which is located railroad tracks. Plaintiff instituted suit under Article 1, Section 17 of the Constitution of Texas, Vernon’s Ann. St., which provides:

“No person’s property shall he taken, damaged or destroyed for or applied to public use without adequate compensation being made, * *

The City constructed the viaduct to eliminate two hazardous railroad grade crossings; made 17th Street a one-way street as a part of a newly established crosstown thoroughfare; and asserted that it acted under Article 1175, Vernon’s Ann. Civ.Tex.St. (which gives cities exclusive control over their streets, and the power to pave, raise, grade, and fill same); as well as under the city’s police power for the health, safety and welfare of the public.

Trial was to a jury which found that the value of plaintiff’s property was $15,500 immediately before the construction of the viaduct; and that the value of such property was $7000 immediately after such construction.

The Trial Court entered judgment on the verdict for plaintiff for $8,500.

Defendant City appeals, contending that the Trial Court erred in holding the City liable to plaintiff for damages due to the limitation of access caused by the construction of a viaduct, under the police power, when the plaintiff retained reasonable access to the street system of the City of Waco.

SCHEMATIC DIAGRAM

(17th Street overpasses Mary and comes into Franklin Ave. Plaintiff’s access is limited to the shaded areas, viz. the alley to Franklin Ave., and under the viaduct to Mary Street)

Plaintiff contends that the fundamental question for determination is whether the City is liable to him under Article 1, Section 17, of the Constitution of Texas for taking, damaging, or destroying his property.

There can be no question (and the jury so found), that plaintiff’s property has diminished in value; and that plaintiff has lost all access to 17th Street as a result of the construction of the viaduct.

It is clear from the record that the construction of the viaduct was a valid exercise of the-police power by the City. It is further established by the evidence that the construction of the viaduct has not denied plaintiff and the public, access to plaintiff's property by automobiles and ordinary trucks, albeit that such access is circuitous and inconvenient.

The Supreme Court in City of San Antonio v. Pigeonhole Parking, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640 held: “Undoubtedly the general rule is that access to a public highway is an incident to ownership of land abutting thereon and the corollary follows that this right cannot be taken or destroyed for public purposes without adequate compensation * * *. While this rule is universally followed where the power of eminent domain is exercised, it does not apply when a municipality invokes its police power for the protection of the health, safety and general welfare of its citizens”; and in Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, the Supreme Court said: “All property is held subject to the valid exercise of the police power; * * *. The infliction of such loss is not a deprivation of property without due process of law; the exertion of the police power upon subjects lying within its scope, in a proper and lawful manner, is due process of law. Moreover, police regulations do not constitute a taking of property under the right of eminent domain; and compensation is not required to be made for such toss as is occasioned by the proper exercise of the police power. * * ”

Since the City of Waco had the right under Article 1175, V.A.T.S., and its police power, to construct the viaduct, no cause of action accrues against it for diminution in value of plaintiff’s property, absent a taking of some of plaintiff’s property in eminent domain, or absent a complete denial of all reasonable access to plaintiff’s property. Lysaght v. City of Ft. Worth, CCA, Er.Ref., 359 S.W.2d 128; Penny-savers Oil Co. v. State of Tex., CCA, Er. Ref., 334 S.W.2d 546; Holbrook v. State of Texas, CCA (n. r. e.), 355 S.W.2d 235; Moorlane v. Highway Dept. and City of Amarillo, Tex.Civ.App., 384 S.W.2d 415; City of Waco v. Archenhold, Tex.Civ.App., 386 S.W.2d 174.

Appellant City’s contention is sustained, and the judgment of the Trial Court is reversed and rendered.

Reversed and rendered.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    O. L. LOWERY et al., Appellants, v. Della LOWERY et vir, Appellees.
    No. 65.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 14, 1965.

      Marion G. Holt and A. L. Lowery, Nacogdoches, for appellants.
    J. T. Maroney, Jr., Lufkin, for appellees.
   DUNAGAN, Chief Justice.

This is a case where two sons, O. L. Lowery and Leon Lowery, appellants herein, are seeking to have O. L. Lowery appointed guardian of their parents, Mrs. Della Lowery and Charles E. Lowery.

This case originated in the County Court of Nacogdoches County, Texas. In the application for guardianship O. L. Lowery sought to be appointed as guardian of his parents, the appellees herein, alleging therein that his mother, Mrs. Della Lowery was a person 78 years of age, a spend-thrift, and a person incapable of taking care of her own business affairs, and a person of unsound mind. That her husband, Charles E. Lowery, his father, was 85 years of age and because of his age and senility was incapable of taking care of his business affairs, and was a person of unsound mind. Appellant, Leon Lowery, became a party to this proceeding through proper proceedings instituted in said court wherein he adopted the application of O. L. Lowery. A contest to the application was filed -by Mrs. Della Lowery and Charles E. Lowery and the case was tried before a jury in1 the County Court of Nacogdoches County, Texas. The jury found neither of the appellees to he of unsound mind and judgment was rendered denying the guardianship. Applicants then gave their timely notice of appeal to the District Court of Nacogdoches County, Texas, and appeal was duly perfected. This case was heard before a jury in the District Court of Nacogdoches County, Texas, and the jury findings in that court also being favorable to the appellees, the court rendered judgment in favor of Mrs. Della Lowery and Charles E. Lowery denying the application of petitioners for guardianship. Appellants timely filed their amended motion for a new trial which was overruled by the court, to which the appellants in open court objected, excepted, and duly perfected their appeal to this court.

The appellants have brought forward seven Points of Error, all of which are related in that they complain that counsel for the appellees during the interrogation of the jury panel and witnesses made repeated statements to the effect that the appellants were attempting to have their mother and father declared insane, which was prejudicial and harmful to the rights of appellants. Appellants make the same complaint to appellees’ counsel’s argument to the jury. They contend that the court committed error in allowing these statements to be made over their objections and in denying their numerous motions for mistrial by reasons of the repeated statements of appel-lees’ counsel. It is their contention that the statements complained of were wrongful, prejudicial and were harmful to the rights of appellants.

Prior to the interrogation of the jury panel appellants filed their motion in limine requesting the court in the first paragraph thereof to instruct appellees and appellees’ counsel to refrain in every way throughout the trial from alluding to or in any way commenting or making reference directly or indirectly that the plaintiffs are contending or trying to prove that the defendants are insane, crazy, lunatics or idiots, because the same is not in keeping with the allegations contained in plaintiffs’ (appellants) petition and in reference thereto are highly prejudicial to the rights of these plaintiffs and would only contend to have the jury believe that they must believe that the defendants are insane, crazy, lunatics or idiots, to be of unsound mind under the laws of the State of Texas. The court overruled this portion of appellants’ motion.

Appellees first contend that we should not consider any of appellants’ points of error because they do not direct the attention of this court to any error of the trial court which appellants rely upon for reversal; and are insufficient to direct the court’s attention to the particular reason the appellants contend the court erred; and further that they are too general, vague and uncertain.

The object of a "point” in the brief as provided for in Rule 418 is to call the court’s attention to the questions raised and discussed in the brief. It is intended that the “point” shall be short or in few words. It is not necessary that a "point” be complete within itself, in the sense that it must, on its face, show that the matter complained of presents reversible error. If a “point” is sufficient to direct the court’s attention to the matter complained of, the court will look to the “point” and the statement and argument thereunder to determine the question of reversible error. Simply stated, the court will pass on both the sufficiency and the merits of the “point” in the light of the statement and argument thereunder. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); Brazos River Authority v. City of Graham, 354 S.W.2d 99 (S.Ct. of Tex., 1962).

While the points relied upon are rather general in nature, we think that in view of the liberal rules, they are sufficient to direct the attention of the court to the alleged errors relied upon.

Appellants have grouped all their points for the purpose of discussing them in their brief and presenting their contentions to this court. We likewise group them in disposing of them. Appellants contend that the repeated statements by counsel for ap-pellees complained of by appellants constitute reversible error.

The record reflects that the court sustained appellants’ objections to the statements of appellees’ counsel that they (appellants) were trying to prove their father and mother to he insane with the exception of the first four times such statement was made. The first time the appellants made objections to such statement, the court overruled the objection and instructed counsel for appellees to confine his remarks to the pleadings and so instructed appellees’ counsel numerous times thereafter. However, the court consistently overruled appellants’ motion for a mistrial.

Appellants in their application for guardianship in addition to alleging that Mrs. Lowery was a spend-thrift and a person incapable of taking care of her business affairs, that Mr. Lowery because of his age and senility was incapable of taking care of his business affairs, it was alleged that each was of unsound mind. “A person of unsound mind” as defined by the Texas Probate Code includes “insane persons.” Paragraph (y) of Section 3 of Chapter 1 of the Texas Probate Code, V.A.T.S. entitled Definition and Use of Terms provides that “ ‘[pjersons of unsound mind’ are persons non compos mentis, idiots, lunatics, insane persons, and other persons who are mentally incompetent to care for themselves or to manage their property and financial affairs.”

“Insanity” is a sort of generic term, comprehending "all kinds of mental unsoundness and derangement; Ex parte McKenzie, 116 Tex.Cr.R. 144, 28 S.W.2d 133 (1930). As a general rule the terms “a person of unsound mind” and “an insane person” are regarded as synonymous. Reiche v. Williams, 183 S.W.2d 587 (Tex. Civ.App., 1944) writ refused for want of merit; Tex.Jur.2d, Vol. 31, page 419, Section 1.

Black’s Law Dictionary, Fourth Edition, defines “insane” as “unsound in mind; of unsound mind; deranged, disordered, or diseased in mind.”

Vol. 31, Tex.Jur.2d, page 420, Section 2, under Forms of Insanity states that “insanity may assume as many various forms as there are shades of differences in the human character. Among the forms which the courts have had occasion to notice are religious or emotional insanity, senile dementia, monomania, peranoia, insane delusion, and kleptomania. * * * ”

The record does not show that counsel for appellees at any time during any stage of the trial stated that appellants were trying to prove their parents were lunatics or idiots.

In response to one of appellants’ objections, counsel for appellees stated to juror O. F. Christopher in the presence of other members of the jury panel, “It is their contention that Mr. and Mrs. Lowery are persons of unsound mind, that they are incapable of taking care of their own business. Therefore, they want to have a guardian appointed who is Mr. O. L. Lowery. Now, there will be a charge submitted to you, and there will be questions, and the question will be, * * * 'Do you find from a preponderance of the evidence that Della Lowery is a person of unsound mind?’’ Then the Court will tell you what unsound mind means, and he will instruct you to answer the question yes or no, and it is from your answer of yes or no that a judgment will be rendered in this cause of action. * *

Counsel for appellants in connection with their numerous objections to the statements complained of stated in the presence of the jury that as to whether the appellees are insane is not the issue in the case and that they are not trying to declare them to be insane. Moreover, the court defined “unsound mind” in his charge as follows: “You are instructed that by the term ‘unsound Mind’ used above is a person who is mentally incompetent to care for himself or manage his property and financial affairs.”

Only once did appellants move the trial court to instruct the jury not to consider the objectional remarks of counsel for ap-pellees. The court promptly instructed the jury as follows: “The Court will instruct the jury in the charge to the issue to he tried in this lawsuit, and they will be governed thereby.”

Appellees’ counsel in his argument to the jury made the following statement: “The only thing that Marion said about Mrs. Della Lowery was that she was domineering. Well, I say this to you, Mr. Holt, that if we are going to declare every man in this nation of ours insane and of unsound mind because his wife is domineering, * * To this argument appellants’ counsel made the following objection: “Your Honor, * * *. We object to this testimony, trying to declare anyone insane. That has not been the issue in this case. * * Whereupon counsel for appellees stated: “I withdraw it and apologize to the Court and to the jury. I meant to say of unsound mind.” We do not think this argument particularly in view of appellees’ counsel’s withdrawal of the remark, his apology to the court and explaining that he meant to say unsound mind was reasonably calculated to, and probably did, cause the rendition of an improper judgment. Texas Rules of Civil Procedure, rule 434. Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App., 1964) no writ hist.

There is no contention made that the evidence was not adequate to support the verdict of the jury and the judgment of the court.

Appellants have not cited any statute, rule, or other authority to support the contentions they now urge before this court.

We do not believe that these statements and remarks of counsel for appellees were of such nature as to prejudice the jury or to mislead them as to the issues or contention of appellants when considered in the light of the entire record in this case.

Viewing the entire record in the light of the authorities above cited, we do not believe that the statements of appellees’ counsel complained of by appellants constitute reversible error.

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


author: WILSON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Elma B. RAMPY, Appellee.
    No. 4292.
    Court of Civil Appeals of Texas. Waco.
    Dec. 31, 1964.
    Rehearing Denied Jan. 21, 1965.

      Ramey, Brelsford, Hull & Flock, Donald Carroll, Tyler, for appellant.
    Hugh Reed, Jr., Fairfield, Rex Houston, Henderson, for appellee.
   WILSON, Justice.

The principal questions in this workmen’s compensation case concern good cause for late filing of claim under Art. 8307, Sec. 4a, Vernon’s Ann.Tex.Civ.St., res judicata, and variance between the injury claimed and that proved. Judgment was rendered for claimant-appellee on a jury verdict in Freestone County. The extent and duration of incapacity, and injury in the course of employment are not in issue here.

Claimant worked for an oil well servicing firm located in Henderson County. His duties, as a member of a well servicing crew required him to work at various sites in several counties served by his employer, including Henderson, Anderson and Freestone Counties, all of which are contiguous. There is evidence to show claimant sustained a heat stroke or heat exhaustion in each of the latter three counties in the order listed in April and May, 1962. Each was a distinct and separate accident, occurrence or injury. There is evidence to show that the first occurrence was on an uncertain date in April or early May, 1962, after which claimant was off work about a week. He then had no medical attention. There is evidence to show another such episode occurred in Anderson County late in May, 1962, “along either the 24th or 26th,” at which time he was carried home by his foreman, but there was again no medical treatment. There is also evidence to show a third heat stroke or exhaustion in Freestone County the latter part of May, 1962, (on the 24th, 26th or 31st). On this latter occasion claimant was taken to a hospital where he received medical treatment. His first day in the hospital is shown by its records to have been May 31, 1962. Claimant’s testimony as to dates and location of these occurrences was equivocal and uncertain. The evidence shows he sustained brain damage and loss of memory from the heat strokes or heat exhaustion.

Claimant filed a claim with the Industrial Accident Board June 26, 1962, giving the date of injury as May 24, 1962 and the place as Freestone County. He stated the names of the hospital and the attending physician. Previously the employer’s first report of injury had been filed with the Board stating the date of injury was May 31st and the place was Anderson County. On June 28th the Board wrote claimant advising that the employer had reported a different date of injury, and requesting that claimant “please clarify” the date. The caption of this letter showed “Freestone County.” It did not request clarification as to place of the injury claimed. Claimant responded on July 6, 1962: “I had the date wrong; it was the 31st of May instead of the 24th. I did get too hot on the 24th, but did not go to a doctor at the time.” This letter did not refer to the county of injury.

There is testimony that in June, 1962 claimant’s employer and the carrier’s claim agent told him his injury was sustained on May 31st “either in Henderson County or in Anderson County” not in Freestone County; and that the agent took a statement from him, stating “they were reporting it”, and his “compensation would start In a few days.”

Thereafter claimant employed counsel who filed an “amended” claim form July 16, 1962, alleging an injury which occurred on or about April 16, 1962 in Henderson County. The attorney’s transmittal letter noted, “It is my understanding that he has heretofore filed a claim with you concerning a reoccurrence of his injury some time in May.” On August 2, 1962 another “amended” notice and claim form was filed by claimant’s attorney alleging injuries “1st, on or about April 16, 1962” in Henderson County; “2nd, about May 31, 1962” in Anderson County. The Board wrote the attorney concerning the “discrepancy” in dates, but did not refer to the place of injury.

The Board entered an order denying ap-pellee’s claim, reciting “date of injury on or about 4-16-62 & 5-31-62.” This order will be considered subsequently. Claimant appealed to the District Court of Henderson County, alleging that he was injured on or about April 16 in Henderson County and again on or about May 31, 1962 in Anderson County. The pleading did not refer to a Freestone County injury. On a jury verdict to the effect that claimant did not sustain the injury claimed in Henderson County, a take-nothing judgment which subsequently became final was rendered in April, 1963 by the Henderson County District Court.

May 7, 1963 claimant’s attorney filed another notice and claim, alleging he suffered heat stroke or heat exhaustion May 3, 1962 in Henderson County, and still another alleging he was so injured May 26, 1962 in Freestone County, again naming the doctor and hospital. On May 27, 1963 the Board denied these claims on the ground that “we have already entered a decision in the claim of Elma B. Rampy for heat exhaustion while in the employ” of his employer. The appeal from this decision constitutes the present action.

Claimant’s petition in the present suit alleged heat stroke or heat exhaustion on May 26, 1962 in Freestone County. He filed a trial amendment alleging he had three “heat episodes”: Henderson County May 3, 1962, Anderson County May 25th or 26th, 1962, and Freestone County on or about May 31, 1962, the latter being the injury which required his hospitalization and caused his permanent disability.

Defendant denied the claim was filed within the statutory period and denied ex-_ istence of good cause for the failure. Claimant pleaded as good cause that “on or about a date he had believed in good faith was April 16, 1962, but which his employer subsequently proved was actually May 3, 1962 he had a mild heat stroke or exhaustion; that on or about May 26, 1962 he had his most severe occurrence in Freestone County,” and on May 31 in Anderson County he “fell out” and became completely unable to work. He believed in good faith, as did his employer, it was alleged, that his disability was caused by the occurrence of May 31, 1962 in Anderson County. Other averments were made concerning confusion in dates and places, and representations made to claimant by his employer and appellant’s agent as to the date and place of his injury. He alleged his belief continued until, in the Henderson County trial, the carrier contended his disability arose May 26, 1962 in Freestone County.

Appellant pleaded the Henderson County judgment in bar as res judicata.

The jury found in effect, as material here, that claimant suffered heat exhaustion in Freestone County on or about May 31, 1962; that in June 1962 appellant’s agent and the employer advised claimant they were reporting his injury “as a Henderson or Anderson County injury”, and told him he should so report, and he would begin receiving compensation when he did so; that he relied on these statements; that the Board’s letter caused him to discontinue action on his Freestone County injury until May, 1963; that he continued his belief his disability resulted from the Henderson or Anderson County injuries until the time or reasonably near the time he filed his May, 1963 Freestone County claim; that claimant’s brain damage and loss of memory disabled him from prosecuting his Freestone County claim; that the matters found constituted good cause for failure to sooner file his Freestone County claim.

Appellant’s first three points assert absence or inadequacy of evidence to show good cause on the part of claimant or his attorneys to sooner file a claim. Although neither of the parties appear from the briefs to have considered the matter, we are convinced the record does not show claimant failed to file a claim on the Freestone County injury within the statutory period. Within a month after May 31, 1962 he filed a claim alleging a heat stroke or exhaustion in Freestone County assigning date of injury as May 24, 1962, (changed to May 31, 1962 in response to the Board’s letter that the employer said this was the actual date of injury). The Board carried every claim ever filed for appellee under the same file number. It did not act on a claim for a Freestone County injury until it entered the order appealed from in this case. The Board’s records designate it as a Freestone County injury. The claim was filed on June 26, 1962, within the statutory time. In our opinion the question of good cause for failure to file the claim in time is not in the case.

It is suggested by appellee’s counsel in oral argument that the Board’s order of November 30, 1962 disposed of the Freestone County injury claim filed June 26. When claimant’s attorney forwarded amended notice and claim to the Board on July 13, 1962 (referring only to Henderson and Anderson County injuries) he noted that claimant had previously filed a claim for “reoccurrence of his injury on some date in May.” Additional amended claim was forwarded by the attorney to the Board July 31, 1962. Again only Henderson and Anderson County injuries were listed. The attorney requested this claim (form on which was enclosed in his transmittal letter) to be set for hearing. The ensuing notice of hearing forms and subsequent Board correspondence listed Anderson as the county of injury. Freestone County is not mentioned. One of these forms was appellant’s. The Board’s order of November 30th denying compensation recited its finding that claimant failed to establish injury “as alleged”. We do not find Freestone County mentioned in these proceedings. In our opinion the Board did not determine it by the November, 1962 order. 100 C.J.S. Workmen’s Compensation § 657, p. 993.

If our conclusion that the Freestone County injury claim was filed in time is incorrect, and the good cause was an issue properly litigated, we are nevertheless of the opinion that the evidence is adequate to establish good cause.

Appellant’s contention concerning res judicata is founded on the argument that the Henderson County judgment adjudicated an injury claimed to have occurred on or about May 31, 1962, which is the same date as the Freestone County claim involved in the present suit. Neither the pleadings, the jury verdict nor the judgment in the Henderson County suit referred to an injury in Freestone County. The jury verdict in that suit answered only that claimant did not sustain heat exhaustion “in Henderson County.” If the Henderson County District Court had no jurisdiction to adjudicate the Freestone County injury claim, as we believe, its judgment is not res judicata here. Todd Shipyards Corp. v. Texas Employment Commission, 153 Tex. 159, 264 S.W.2d 709, 713. It is “identity of injury”, not identity of date which determines whether the Henderson County court had jurisdiction, and whether its judgment determined the Freestone County injury claim. Booth v. Texas Employers’ Ins. Ass’n, 132 Tex. 237, 123 S.W. 2d 322, 324; Maryland Casualty Co. v. Jackson, Tex.Civ.App., 139 S.W.2d 631, 633, writ dis., C.J. Cf. Brown v. Texas Employers’ Ins. Ass’n., Tex.Civ.App., 276 S. W.2d 314, writ ref. n. r. e.; Safety Casualty Co. v. Brown, (5 Cir.) 229 F.2d 889; Zurich General Accident & Liability Ins. Co. v. Daffern, (5 Cir.) 81 F.2d 179, 180. In a second action “between the same parties on a demand differing from that in the first action, the judgment in the first action is an estoppel only as to the points controverted, on the determination of which the finding or verdict was rendered.” State v. Selby Oil & Gas Co., 135 Tex. 146, 139 S.W.2d 781, 782. The Henderson County judgment was not conclusive in the present action.

Other points have been considered and are overruled.

Affirmed.


author: PER CURIAM.

text:
    Robert HAINSWORTH, Appellant, v. Crawford MARTIN, Secretary of the State of Texas, et al., Appellees.
    No. 11262.
    Court of Civil Appeals of Texas. Austin.
    Jan. 20, 1965.
    Rehearing Denied Feb. 3, 1965.

      Robert W. Hainsworth, Houston, for appellant.
    Waggoner Carr, Atty. Gen., John Reeves, Pat Bailey, Asst. Attys. Gen., Wallace Shropshire, County Atty., Joseph Darnell, Jr., Asst. County Atty., Austin, James E. Barlow, Criminal Dist. Atty., William J. Condon, Asst. Criminal Dist. Atty., San Antonio, for appellees.
   PER CURIAM.

The appellant here and plaintiff below brought this suit asking for a declaratory judgment concerning the validity of the method of apportionment adopted by the Legislature in the Apportionment Act of 1961 and asked that the county judges in those counties having two or more representatives in the State Legislature be enjoined from making returns of the elections for members of the Legislature in general and special elections and from performing other duties required by law in respect to such elections. The suit names the present Secretary of State, Attorney General and other public officials as defendants, these officials having been substituted as defendants from those previously holding these offices and having originally been made defendants when this suit was first filed.

It should be noted at the outset that appellant is not questioning here the validity of the number of representatives apportioned to the various counties of the State. Appellant’s argument is that the Constitutions of the Federal and State governments require the State to divide those counties to which more than one representative is apportioned into separate and distinct legislative districts. Thus, instead of the candidates for the Legislature running at large for various places designated on the ballot, these candidates in multicandidate counties would be assigned districts from which they would run.

Judgment in the trial court was for the defendants and denied the injunctive relief sought.

Appellant is before this Court on five points of error. The first four allege violations of the Federal and State Constitutions which we will discuss in the order presented. The fifth point is the error of the court in denying the injunctive relief sought.

At the trial of this case, appellant called numerous witnesses who, for the most part, were duly elected members of the Legislature and from these witnesses elicited testimony to the effect that they had never during their lifetimes known of a negro to serve in the Texas Legislature; that they had known of instances where qualified negroes had offered themselves as candidates for the Legislature but that they had not been elected; that if districts were set up within the counties a negro or other member of a minority race would have a better chance of election; that there are 17 counties in the State of Texas that are entitled to two or more representatives.

Appellant presented detailed testimony as to the population of the abovementioned 17 counties, the number of whites and negroes in each and that the last negro to serve in the Texas Legislature was in the 1880’s.

The crux of appellant’s argument is that if the larger counties were divided into representative districts that are separate and distinct as to area and population, such a division would afford a legislative candidate who was a negro or who was from a minority racial group a fairer and more equal opportunity to be elected to the State Legislature. This contention is based on the argument that at the present time ne-groes and other minority groups live together in certain neighborhoods that presumably would be segregated into the voting districts desired.

Appellant presented a very able argument to this Court as to the merits of his case, however, his arguments are political in nature and their consideration should be by the legislative branch of the government and not the courts. For this reason and also for the other reasons hereinafter detailed, we must hold that the judgment of the trial court was correct.

Several recent opinions of the United States Supreme Court have foreclosed appellant’s contention that the present method of selecting members of the Legislature in multimember counties is in violation of the 14th Amendment of the Federal Constitution.

In June of 1964, in an opinion styled Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, wherein the Supreme Court of the United States required the states to reapportion certain election districts so as to effect a more equal representation for equal numbers of people, multimember districts were specifically approved. This point was fortified on the same day that Sims was handed down by Lucas v. Forty-Fourth General Assembly of the State of Colorado, 377 U.S. 713, 84 S. Ct. 1459, 12 L.Ed.2d 632, wherein the court pointed out in Footnote 21, at 84 S.Ct. 1483:

“We do not intimate that apportionment schemes which provide for the at-large election of a number of legislators from a county, or any political subdivision, are constitutionally defective. Rather, we merely point out that there are certain aspects of electing legislators at large from a county as a whole that might well make the adoption of such a scheme undesirable to many voters residing in multimember counties.”

Again in Sims the U. S. Supreme Court cited with approval the law from Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L. Ed.2d 481:

“ * * * Wesberry clearly established that the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.”

Thus under the law the vote of one citizen is equal to that of another “without regard to race, sex, economic status, or place of residence within a State.”

Sections 26 and 26a of Article III of the Texas Constitution, Vernon’s Ann. St., merely provide the manner in which members of the House of Representatives shall be apportioned among the several counties. See this Court’s opinion in Miller v. James, Tex.Civ.App., 366 S.W.2d 118. These sections do not require the apportionment of districts within the counties.

Nor do we believe that Section 3 of Article 1 or Section 19 of Article 1 of the Texas Constitution uphold appellant’s contention for the same reasons given by the United States Supreme Court in Sims and Lucas cited above.

Inasmuch as we hold that appellant’s contentions do not invalidate the reapportionment Act, we need not discuss the appellant’s fourth point respecting the injunction sought.

The judgment of the trial court is affirmed.

Affirmed.

      . House Bill 349, Acts of the 57th Legislature, Articles 193 and 195, Vernon's Ann. Civil Statutes.

      . Section 26. “The members of the House of Representatives shall be apportioned among the several counties, according to the number of population in each, as nearly as may be, on a ratio obtained by dividing the population of the State, as ascertained by the most recent United States Census, by the number of members of which a House is composed; provided, that whenever a single county has sufficient population to be entitled to a Representative, such county shall be formed into a separate Representative District, and when two or more counties are required to make up the ratio of representation, such counties shall be •contiguous to each other; and when any one county has more than sufficient population to be entitled to one or more Representatives, such Representative or Representatives shall be apportioned to such county, and for any surplus of population it may be joined in a Representative District with any other contiguous county or counties.”
      Section 26a. “Provided however, that no county shall be entitled to or have under any apportionment more than seven (7) Representatives unless the population of such county shall exceed seven hundred thousand (700,000) people as ascertained by the most recent United States Census, in which event such county shall be entitled to one additional Rep-presentative for each one hundred thousand (100,000) population in excess of seven hundred thousand (700,000) population as shown by the latest United States Census; nor shall any district be created which would permit any county to have more than seven (7) Representatives except under the conditions set forth above.”

      . Section 3. “All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate emoluments, or privileges, but in consideration of public service.”
      Section 19. “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”


author: McDonald, Chief Judge.

text:
    BELLMEAD STATE BANK, Appellant, v. Thomas M. CAMPBELL, Appellee.
    No. 4302.
    Court of Civil Appeals of Texas. Waco.
    Nov. 12, 1964.

      John B. McNamara, Jr., Waco, for appellant.
    John B. Faulkner, Waco, for appellee.
   McDonald, Chief Judge.

This is an attempted appeal from a final judgment of the Trial Court entered on August 28, 1964. Appellee filed motion to dismiss the appeal for want of jurisdiction.

The judgment of the Trial Court recites no notice of appeal. The Trial Court, on August 28, 1964, further entered an order overruling appellant’s motion for judgment non obstante veredicto; and on September 11, 1964 entered a second order overruling appellant’s motion for judgment non ob-stante, and on September 11, 1964 entered another order explaining why the second order overruling appellant’s motion for judgment non obstante was entered.

Appellant filed no appeal bond, but deposited cash in lieu of appeal bond with the District Clerk on October 9, 1964.

Appellant caused Transcript to be filed in this court on October 23, 1964, and requested and received an extension of time for filing Statement of Facts.

Appellee’s motion to dismiss the appeal asserts appellant did not give notice of appeal as required by Rule 353 Texas Rules Civil Procedure; and that appellant failed to timely file appeal bond or cash deposit in lieu thereof, as required by Rule 356 T.R. C.P.

Appellant answered such motion, asserting that upon completion of the Statement of Facts in this case, “same will affirmatively show that appellant has given notice of appeal as required by law, and that a deposit of cash in lieu of appeal bond has been made and filed as required by law.”

Assuming without deciding that the Statement of Facts when filed will reflect that notice of appeal was given as required by law, the Transcript before us is sufficient for a determination of whether appellant’s cash deposit, in lieu of appeal bond, was timely made.

Rule 356 T.R.C.P. provides that cash deposit in lieu of appeal bond must be made with the Clerk within 30 days after rendition of judgment (or order overruling motion for new trial). As noted, judgment was entered on August 28, 1964. There was no motion or order overruling motion for new trial. Cash deposit in lieu of appeal bond was made with the Clerk on October 9, 1964. Since such deposit was made-more than 30 days after judgment, it came too late. Glidden Co. v. Aetna Cas. & Surety Co., 155 Tex. 591, 291 S.W.2d 315; Page v. City of Corsicana, CCA (n. w. h.), 305 S.W.2d 377; Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853; 3 Tex.Jur.2d p. 564, et seq.

It cannot be contended that time should be computed from September 11, 1964, the date the Trial Court entered its second order overruling motion for judgment non obstante, because such is an interlocutory order and not appealable.

In any event the Trial Court cannot, by its own initiative, make any order affirming its former judgment, and thereby extend the time for perfecting appeal. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853.

It is the policy of this court to exercise its discretion liberally in permitting an appeal to any aggrieved party, but here we have no discretion, as the requirement for filing bond or cash deposit in lieu, within the time fixed by the Rule, is mandatory and jurisdictional.

Appellee’s motion is sustained and appeal dismissed for want of jurisdiction. Dismissed.


text:
    J. C. PENNEY COMPANY, a Corporation, et al., Appellants, v. Mrs. Tott GORMAN et vir, Appellees.
    No. 4300.
    Court of Civil Appeals of Texas. Waco.
    Jan. 7, 1965.
    Dawson, Dawson & Price, Corsicana, for appellants.
    Fender & Clinton, Mexia, for appellees.
   WILSON, Justice.

Plaintiffs’ plea controverting defendants’ plea of privilege in this “slip and fall” case asserted venue under Subdivisions 4, 9a, 23 and 29a, Art. 1995, Vernon’s Ann.Tex.Civ. St.

Plaintiff testified, “I stepped in this slick place and lost my balance. It was shiny, and it was just more of a splatter or dab of something. It was wet or shiny or glossy.” She described a spot about one inch wide and two or three inches long on the floor of appellants’ store, which “seemed like it smeared.” She did not know what the substance was; she did not know how long it had been there or how it came to be there. “It could have been some ice cream there on the floor,” she testified. Defendant did not use wax on the floor. It had last applied a commercial filler called “Sole-grip” three months before, when the floor was last cleaned.

There is no direct evidence as to who put the lippery substance on the floor, what it was, or how long it had been there. There is no evidence of appellants’ actual or constructive knowledge of the presence of a foreign substance. There is no evidence of negligence. Sherwood v. Medical & Surgical Group, Tex.Civ.App., 334 S.W. 2d 520, writ refused; The Great Atlantic & Pacific Tea Co. v. Giles, Tex.Civ.App., 354 S.W.2d 410, writ ref. n. r. e., and cases cited.

Other points are overruled. The judgment is reversed and the cause remanded. Appellate Procedure in Texas, Sec. 18.11.


author: COLEMAN, Justice.

text:
    JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Appellant, v. W. E. COOPER et ux., Appellees.
    No. 14468.
    Court of Civil Appeals of Texas. Houston.
    Jan. 7, 1965.
    Rehearing Denied Jan. 28, 1965.

      Vinson, Elkins, Weems & Searls and James Greenwood, III, Houston, for appellant.
    Winkelman, McCully & Christensen and John T. McCully, Houston, for appellees.
   COLEMAN, Justice.

T?his is a suit for benefits under a group medical and hospitalization insurance policy. At the conclusion of all testimony, the trial court instructed a verdict for the plaintiff. The question to be determined is the existence or not of an issue of fact as to whether, on the date of the termination of her employment with the Bell Finance Company, Thelma M. Cooper was totally disabled, as that term is defined in the policy of insurance, and, if she was, whether such disability continued throughout the period for which benefits are claimed.

Appellant Insurance Company concedes that the date of termination of Mrs. Cooper’s employment was April 14, 1960. Under the terms of the policy the coverage ceased automatically on the date of termination of the employment of the employee, subject to the provisions of the policy denoted “Extended Benefit Period”, (found in Section L of Plaintiff’s Exhibit 2), reading as follows:

“If, on the date his Major Medical Expense Insurance hereunder ceases, an employee is totally disabled as a result of an accidental bodily injury or disease as described above and is thereby prevented from performing any and every duty of his occupation, the covered medical expenses incurred by the employee after said date and during the continuance of such total disability shall be considered as having been incurred while insured under this coverage, for the purpose of determining a benefit before the end of the calendar year next following the calendar year in which his insurance ceased.”

Similar provisions contained in insurance policies have been considered by the Supreme Court of this state in numerous cases. In the case of Commonwealth Bonding and Casualty Ins. Co. v. Bryant, 113 Tex. 21, 240 S.W. 893, the Court considered an accident policy providing benefits for total disability in the event the insured sustained bodily injuries through accident which would immediately, continuously, and “wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation.” The Court held that the insured was entitled to the benefits provided by the policy if his injuries rendered him “substantially unable, in the exercise of ordinary care, to perform every material duty pertaining to his occupation.”

This holding was subsequently approved in Great Southern Life Ins. Co. v. Johnson, Tex.Com.App., 25 S.W.2d 1093, where the Court quoted with approval from 6 Cooley’s Briefs on Insurance, 5536: “It (total disability) * * * does not mean absolute physical disability of the insured to transact any kind of business pertaining to his occupation, but exists if he is unable to do any substantial portion of the work connected therewith.” Both of these cases were quoted from and approved by the Supreme Court in Prudential Insurance Company of America v. Tate, 162 Tex. 369, 347 S.W.2d 556. See also Connecticut General Insurance Company v. Reese, Tex.Civ. App., 348 S.W.2d 549.

In Kemper- v. Police & Firemen’s Ins. Ass’n, Tex.Com.App., 44 S.W.2d 978, the court held that, “as a general rule it can be said that a person is totally disabled from the time of injury until the time of death when during all such time his condition is such that common prudence, and the exercise of ordinary care, would require him to desist from the performance of his duties.” This case was cited with approval by the Supreme Court of Texas in Texas Employers’ Insurance Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, by the Commission of Appeals in Metropolitan Life Ins. Co. v. Wann, 130 Tex. 400, 109 S.W.2d 470, 115 A.L.R. 1301, opinion adopted, and by the Courts of Civil Appeals in numerous cases.

In the Wann case, supra, the court said:

“No general rule can be announced governing the question of when one is totally disabled to pursue a gainful occupation. The term total disability is relative depending, among other things, upon the capabilities of the insured. No distinction is made by the courts between an accident policy and a life insurance policy containing a disability clause. An injury which might render an uneducated laboring man unable to pursue a gainful occupation might not impair at all the ability of a professional or business man to do so. Kem-per v. Police & Firemen’s Ins. Ass’n (Tex.Com.App.) 44 S.W.(2d) 978; Winters Mutual Aid Association Circle v. Reddin (Tex.Com.App.) 49 S.W.(2d) 1095; Great Southern Life Ins. Co. v. Johnson (Tex.Com.App.) 25 S.W.(2d) 1093; Buis v. Prudential Ins. Co., 229 Mo.App. 190, 77 S.W.(2d) 127; Duhaime v. Prudential Iris. Co., 86 N.H. 307, 167 A. 269; Aetna Life Ins. Co. v. Person, 188 Ark. 864, 67 S.W.(2d) 1007.”

The controlling issue in this case is whether an ordinarily prudent person in the exercise of ordinary care would have refrained from working under the same or similar circumstances. Whether it would have been physically possible for appellee to have worked was not an ultimate issue, but was merely evidentiary.

It is appellant’s contention that a fact issue was raised by testimony that on April 14, 1960, the day of appellee’s release from her first confinement in the hospital, she called to see whether she could return to work; that she gave a statement to an investigator for appellant in which she stated that she could have worked during the period between hospital confinements. It is argued that these bits of evidence are strengthened by the doctor’s testimony that appellee was in better condition when she was released from the hospital the first time than she was when she entered the hospital, when this testimony is considered in light of the fact that she was able to do her work on the day prior to the first hospital confinement.

Appellee testified that while she waá in a weakened condition, and was very nervous on April 14, since her leave of absence was over, she thought that she could have done some work and would have tried to do it. She also testified that she could not have done her work.

Appellee was employed as a clerk and her duties involved sitting at a desk, talking over the telephone, walking around, filing instruments and the like. The doctor testified that on April 14 appellee could walk and answer a telephone. This testimony, however, goes no further than to raise an issue of fact as to whether it was physically possible for appellee to perform some of the duties of her employment.

Only one doctor testified at the trial. It was his. testimony that appellee was suffering from Cirrhosis of the liver, complicated by retention of fluid in the general tissues of the body and specifically in the abdomen. He testified that the special diet she had while in the hospital, together with the medication and rest, improved her condition. He also testified that this disease caused a disturbance in the nutritional element causing the patient to feel bad and to become physically weaker. He testified that she was in no condition to return to work and that in his opinion if she had attempted it she would have collapsed. He also testified that her working would have aggravated the handling of her fluid. This testimony is significant in view of his testimony that her medical problem was very serious because of her tendency to accumulate fluid in the abdomen caused by an obstruction to the return venus blood in turn causing collateral circulation to carry the blood around the liver. He testified that oftentimes these veins in the gullet will dilate and become varicose, presenting the possibility of a rupture of one of the veins.

The doctor further testified that during the period between hospital confinements appellee was under his care; that she was given a high protein, low fat and high carbohydrate diet and was put on diuretics and other medications. Some of the medications were given daily by injection. On April 18 a minor operation was performed in his office for the removal of tissue for diagnostic purposes. On May 10 she reentered the hospital and major surgery was performed, which admittedly disabled her for the remainder of the period for which benefits are claimed.

While as a general rule expert medical opinion is not binding on the jury and may be discarded in favor of opinions given by lay witnesses concerning many matters pertaining to sickness or good health, on some subjects only the opinions of experts have any value as evidence, since it cannot properly be assumed that laymen can form correct opinions either from their own knowledge and experience or from opinions expressed by lay witnesses. The diagnosis and proper treatment of the disease of cirrhosis of the liver would appear to be such a subject. Scott v. Liberty Mutual Ins. Co., Tex.Civ.App., 204 S.W.2d 16, writ ref., n. r. e.; Travelers Ins. Co. v. Blazier, Tex.Civ.App., 228 S.W.2d 217, writ dism.

In view of the uncontroverted medical testimony, the fact that appellee was physically able to perform the duties of her occupation, if we assume it to be true, would not raise an issue for the jury on the question of whether an ordinarily prudent person in the exercise of ordinary care would have refrained from working. That is a question concerning which, under the evidence in this case, reasonable minds could not differ.

Affirmed.


author: TIREY, Justice.

text:
    Frank TAYLOR, Appellant, v. Eddie Parks MARTIN, Appellee.
    No. 4303.
    Court of Civil Appeals of Texas. Waco.
    Dec. 31, 1964.
    Rehearing Denied Jan. 21, 1965.

      Strasburger, Price, Kelton, Miller & Martin, A. D. Bynum, Dallas, for appellant.
    Dunnam, Dunnam & Dunnam, Waco, for appellee.
   TIREY, Justice.

This is an appeal from an order overruling the defendant’s plea of privilege to be sued in Limestone County, the county of his residence. Appellant’s Point One is: .

“The trial court erred in overruling defendant’s plea of privilege because plaintiff wholly failed to prove any act or omission of negligence by the defendant as required by Article 1995, subdivision ■9a, Vernon’s Annotated Texas Statutes.” We sustain this point and it will require the judgment of the trial court to be reversed and rendered and the cause transferred to the District Court of Limestone County, T exas.

Appellee brought this action in the District Court of Hill County against Frank Taylor, a resident of Limestone County, seeking recovery of personal injuries alleged to have been sustained through the negligence of Ruth Stuart Taylor. Mrs. Taylor was not made a party to the action and is not before the court. Defendant filed his plea of privilege in statutory form and plaintiff filed his controverting affidavit asserting venue under Sub-division 9a of Article 1995, V.A.T.S., aforesaid. The cause was tried before the court without the aid of a jury.

Plaintiff went to trial on his original petition. The pertinent parts thereof are: (1) That the defendant is a resident of Limestone County; (2) That on “May 1, 1964, said defendant’s wife, Ruth Stuart Taylor, while operating a motor vehicle owned by defendant, negligently caused her motor vehicle to collide with a motor vehicle in which plaintiff was an occupant, proximately causing plaintiff to suffer and sustain severe physical injuries to her body, her damages in the sum of $50,000.00.”

There is no testimony in the record to the effect that the defendant Taylor was with Mrs. Ruth Stuart Taylor at the time of the accident, or that he was in any manner connected with the accident. Plaintiff does not allege any act or acts of negligence on the part of Frank Taylor. Neither do the pleadings allege there was any agency or control by the defendant over the driver of the automobile which allegedly struck the automobile in which the plaintiff was a passenger. It is appellee’s contention that under the above record that venue lies in Hill County, the place of the accident, because the community estate is liable for all torts of the wife. Moody v. Clark, Tex. Civ.App., 266 S.W.2d 907, (n. r. e.); Turner v. Turner, 385 S.W.2d 230 (Sup.Ct., Noveiriber 25, 1964, Tex.Sylb. No. 8). Appel-lee contends since Mrs. Taylor committed .a tort, that she, as a matter of law, is always an authorized representative of the •community estate, including the husband’s .share therein, and since the personal estate of the husband is not sued, but only the community estate, that he has carried his "burden of establishing the venue facts necessary to sustain venue in Hill County. We are not in accord with this view.

The pertinent parts of Sub-division 9a, of Art. 1995, V.A.T.S., applicable herein .are:

■“9a. Negligence. — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff ■to establish by the preponderance of the evidence to sustain venue in a county •other than the county of defendant’s residence are:
“1. That an act or omission of negligence occurred in the county where .•suit was filed;
“2. That such act or omission was :that of the defendant, in person, or -that of his servant, agent or representative acting within the scope of ;his employment.”

We are of the view that the evidence is sufficient to sustain the court’s implied finding to the effect that the negligence complained of occurred in Hill County, but we are of the further view that the evidence wholly fails to satisfy the requirement of Section 2 aforesaid. It is without dispute that defendant was not there in person and had nothing whatsoever to do with -the accident. We likewise think the evidence is wholly insufficient to show that defendant’s wife, at the time of the accident, was acting as his servant, agent or representative, acting within the scope of defendant’s employment. There is an absence of testimony to show where Mrs. Taylor was going, or what her mission was in making the trip, and there is certainly nothing to show that at the time she was acting under the authority, or that she was in any wise under the control of her husband while she was operating the car. It is our view that under the undisputed factual situation here, it was necessary to prove actionable negligence of the defendant in person, or that of his agent, servant or representative acting within the scope of his employment, and this plaintiff wholly failed to do. See Cravens v. Watson, Tex.Civ.App., 293 S.W.2d 839, (n. w. h.). Moreover, there is no showing that Frank Taylor himself was guilty of any act of negligence. Neither was it shown that there was any agency between Frank Taylor and his wife, Ruth Stuart Taylor. The plaintiff wholly fails to allege and prove that Frank Taylor or his authorized agent committed any negligent act in Hill County and, therefore, venue cannot be sustained in Hill County as against Frank Taylor. Moore v. Hoover, Tex.Civ.App., 150 S.W.2d 96, (n. w. h.).

Finally, we think it is well settled in Texas that a husband is not liable for the torts of the wife, unless she is acting in the capacity of the husband’s agent, and acting in the scope of her employment as such agent. In Missouri-Kansas-Texas R. Co. v. Hamilton, Tex.Civ.App., 314 S.W.2d 114, (n. r. e.) we find this statement:

“It has long been the law in Texas that the relation of husband and wife does not create the one as general agent of the other.” Citing many cases.

The San Antonio court in the recent case of Graham v. McCord, Tex.Civ.App., 384 S.W.2d 897, dated November 18, 1964, in discussing a similar situation to the one here, and particularly as it involves Article 1995, V.A.T.S., Sec. 9a, sections 1 and 2 aforesaid held that plaintiff had to prove:

“That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.”

This, plaintiff here wholly failed to do. In other words, plaintiff wholly failed to show that the tort of Mrs. Taylor was that of her husband, and this being true, no venue facts were established that would authorize the maintenance of the suit against Taylor in Hill County. See foregoing cases and authorities there cited. Under the foregoing view, it is our duty to reverse and render this cause.

Reversed and rendered, and the cause is hereby transferred to Limestone County pursuant to the provisions of Rule 89, Texas Rules of Civil Procedure.


text:
    H. G. GRIMMET et al., Appellants, v. Clara Lee WASHINGTON et vir, Appellees.
    No. 14471.
    Court of Civil Appeals of Texas. Houston.
    Jan. 7, 1965.
    Rehearing Denied Jan. 28, 1965.
    Al Taylor, Houston, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellants.
    Talbert, Giessel, Cutherell, Barnett & Stone, Tom W. Foster, Houston, for ap-pellees.
   COLEMAN, Justice.

This is a suit for damages for personal injuries sustained when the car in which appellants were riding was struck from the rear by a car driven by appellee. The jury found no acts of primary negligence on the part of appellee, and found acts of negligence on the part of appellant Coberley, the driver of the vehicle in which appellants were riding. A take nothing judgment was entered.

Appellants’ points of error are to the effect that all of the answers returned by the jury to the special issues submitted concerning negligence and proximate cause are so against the great weight and preponderance of the evidence as to be clearly wrong.

In summary, it was the testimony of appellants that Coberley was driving Grimmet home after work. Coberley turned onto Yale Street about three or four blocks from the scene of the collision. He intended to turn left onto 33rd Street. About one-half block from the intersection of Yale and 33rd Streets he looked into his rearview mirror and the nearest vehicle he saw was about a block away. He activated his left turn signal and proceeded to come to a normal stop without again checking the traffic to his rear. He was forced to stop because of heavy approaching traffic, and he remained stopped IS to 30 seconds before he was struck from the rear by appellee.

Appellee testified that she was following in a line of traffic about three car lengths behind when the car in front of her stopped suddenly. She saw his brake light come on and immediately attempted to apply her brakes, but they failed. She swerved to the right, but, to avoid collision with other cars, immediately turned back to the left and collided with the Coberley car. She testified that had her brakes not failed she would have been able to avoid the collision.

The investigating officer testified that the point of impact, determined by the presence of debris, was 29 feet south of the south line of 33rd Street. Only one set of skid marks was visible. These began at the point of impact and extended 31 feet to the rear of appellee’s vehicle. It was his opinion that they were made by that vehicle. The 'Coberley car came to rest 104 feet from the point of impact in the same traffic lane. The damage to the vehicle indicated that they had collided at an angle. The principal damage to appellee’s vehicle was to the right front. He tested the brakes on ap-pellee’s vehicle and found no visible defects. Both drivers made written statements at the scene.

The Coberley statement read: I was stopped on Yale waiting to make a left turn onto 33rd Street with signal on. The other car hit me, and I heard no brakes or nothing before it hit me in the rear.”

The Washington statement read: "I was driving north on Yale approximately 25-30 miles an hour. I was following approximately one car length behind him when he stopped to turn left. I applied my brakes, but my right front struck his rear.”

Mrs. Washington’s testimony was rather inconsistent. Her testimony that her brakes failed was attacked by evidence that no repairs were made on the brakes after the accident. The testimony was sharply conflicting and it is rather difficult to reconcile either version of the accident with the physical facts.

The jury might reasonably have decided that Mrs. Washington was overtaking the Coberley vehicle and was approximately three car lengths behind it when she saw the brake light. She immediately applied her brakes but that considering reaction time the collision occurred before the vehicle began to slide. If the Coberley vehicle was going slower, it might well have been stopped suddenly without leaving visible skid marks. The jury found that Coberley failed to keep a proper lookout and stopped suddenly.

The only issue concerning the negligence of Mrs. Washington asked whether or not she failed to properly apply her brakes. The jury answered that she did not so fail. We are unable to say that this answer is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    McDONALD & COMPANY, Appellant, v. J. C. KEMPER, Jr., Appellee.
    No. 16589.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 8, 1965.

      Crocker & McDonald, Scott McDonald, Fort Worth, for appellant.
    Max E. Clark, Fort Worth, for ap-pellee.
   RENFRO, Justice.

Kemper Cruise Inn, Inc., by J. C. Kemper, Jr., president, executed an exclusive written agency contract authorizing McDonald & Company to sell its property in the J. Ar-mendaris Survey, Tarrant County, for the sum of $197,500 or such sum as it would accept. The contract provided for payment to McDonald the regular fee prescribed in the commission schedule of the Fort Worth Real Estate Board. McDonald & Company sued J. C. Kemper, Jr., for $10,327.62, alleging it had procured a purchaser ready and willing to enter into a contract for the purchase of said property; that for personal reasons defendant elected to sell his capital stock rather than the property of the corporation ; that the capital stock was sold at a price of $172,127.05; plaintiff had both a Real Estate Broker’s License and a Security Dealer’s License.

Both parties moved for summary judgment.

Judgment was entered for defendant.

The facts are undisputed.

Defendant owned all the stock in Kemper Cruise Inn, Inc. He decided a week or ten days after making the contract with plaintiff it would be more advantageous to him to sell the stock rather than dissolve the corporation, but did not tell plaintiff of his decision. Plaintiff procured Wilbur Wright as purchaser on terms acceptable to defendant. On June 9, 1963, plaintiff’s representative met with defendant and Wright. On that occasion a work sheet, dated June 9, 1963, was prepared, which showed the purchase price to be $174,400. The work sheet showed an item of “$10,464 commission due McDonald to be paid in cash out of $18,000 cash down payment.” Defendant initialed the work sheet. He admitted, by deposition, that was his understanding of the amount the commission would be. At his request $7,500 paid by Wright was held by plaintiff in escrow. Defendant refused to pay the commission because the stock rather than •the assets of the corporation was sold. He never told plaintiff he would not pay commission for that reason.

His sale to Wright was closed on July 1, 1963.

The fact that defendant decided to sell all the stock, 100% of which was owned by him personally, instead of the corporate assets, would not alone defeat plaintiff of recovery. It was plaintiff's diligence and efforts that brought the parties together. The manner in which defendant and Wright consummated the deal was simply a means to the end desired. The trade as completed simply involved a method for accomplishing the sale of defendant’s property to the buyer on terms which defendant deemed advantageous to himself. Cranke v. Trinity Gravel Co., 272 S.W. 604 (Dallas Civ.App., 1925); see Trinity Gravel Co. v. Cranke, 282 S.W. 798 (Tex.Com.App., 1926); Hard v. Hall, 318 S.W.2d 108 (Fort Worth Civ. App., 1958, reversed on other grounds); Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960).

Defendant insists plaintiff cannot recover because a party suing upon an express contract for personal services cannot recover upon proof of services rendered to other parties and not according to the contract; that sale of the stock was not a transfer of the property itself as set out in the contract. McClory v. Schneider, 51 S.W.2d 738 (Amarillo Civ.App., 1932, dism.).

The legal fiction of corporate entity •may be disregarded where the fiction is used as a means of perpetrating fraud or is relied upon to justify wrong. First National Bank in Canyon v. Gamble, 134 Tex. 112, 132 S.W.2d 100, 125 A.L.R. 265 (1939); Continental Supply Co. v. Forrest E. Gilmore Co., 55 S.W.2d 622 (Amarillo Civ. App., 1932, dism.).

Defendant owned 100 per cent of the stock of the corporation, hence rights of no other stockholders were involved. He had full authority to run the corporation himself. Defendant admitted he changed his mind and sold 100 per cent of the stock, rather than the corporate property, because it was to his, not the corporation’s, advantage. He admitted he never told plaintiff about his changed plans until after plaintiff secured a willing and ready purchaser. He accepted plaintiff’s buyer and used plaintiff’s efforts to close the deal on a stock sale basis. He never denied he owed plaintiff a commission but on the contrary approved and initialed a work sheet showing the full amount of plaintiff’s commission. Under the particular facts of this case the corporation and defendant were one. If an individual owner of a corporation uses it only for individual purposes, they will be considered to all intents and purposes one and the same. State Nat. Bank v. Encinal Mercantile Co., 277 S.W. 398 (San Antonio Civ.App., 1925, ref.).

As stated in First National Bank in Canyon v. Gamble, supra: “The bank and the loan company, as shown by the undisputed evidence, * * * are separate entities not in fact but only by legal fiction. The peculiar facts are such that adherence to the fiction would promote injustice and lead to a most inequitable result”; so in this case to allow defendant to escape payment of the commission to plaintiff would promote injustice.

In our opinion, under the record, the plaintiff’s motion for judgment for $10,460 should have been granted. We so render judgment.

That part of the case pertaining to attorney’s fees is reversed and remanded for the purpose of allowing the trial court to hear evidence on and determine the matter of attorney’s fees.

Reversed and rendered in part; reversed and remanded in part.


author: WALTER, Justice.

text:
      COLLINS CONSTRUCTION COMPANY OF TEXAS, Inc., Appellant, v. A. O. TINDALL et ux., Appellees.
    No. 3938.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 15, 1965.
    Rehearing Denied Feb. 5, 1965.
    Hardy Hollers, Austin, for appellant.
    Turner & Seaberry, Eastland, for ap-pellees.
   WALTER, Justice.

A. O. Tindall and wife filed suit against Collins Construction Company of Texas, Inc., for damages sustained by them as a result of an alleged nuisance created and maintained by Collins near Tindalls’ home. Based on a verdict, judgment was rendered for the Tindalls for $3,691.00. Collins has appealed.

Collins contends that the court erred in overruling its motion for an instructed verdict and its motion for a new trial because Tindalls neither pleaded nor proved negligence on the part of Collins in carrying on its rock crushing operation and because the undisputed evidence shows that it was engaged in a lawful use of its property and there was no pleading or proof that such operation was a nuisance, as a matter of law.

Collins was engaged in highway construction on U.S. 80 in Eastland County. Collins began a rock crushing operation near Tin-dalls’ home which continued for about three months.

As the trial developed, Tindalls abandoned their claim for damages resulting from blasting operations. They contended that appellant’s operation caused great quantities of obnoxious dust to cover their home and premises; that the dust interfered with their proper enjoyment and use of their home; that it destroyed some of their property and affected their health. They alleged that such operation constituted a nuisance. Collins filed a general denial and, by trial amendment, alleged that its location was the cite designated by the highway department and that it operated it in a reasonable manner.

The jury found that the dust from Collins’ operation coming onto the Tindalls’ premises constituted a nuisance and that Collins did not act in a reasonable manner in operating its rock crushing facilities.

A. O. Tindall testified substantially as follows: My wife and I live on Mrs. O’Donnell’s place between Eastland and Ranger where we have lived for seven years and have been engaged in the ranching business. Collins began a rock crushing operation in August, 1962, about 650 feet South of our home. The operation continued for about three months. During this operation the dust was so bad that one could not see a car on the highway from our house. At times there was so much dust in our home that you could not see from one room to another. We called Collins and they sent their Mr. Young to see us. I took him in the house and he could hardly stay, he wanted to leave. The dust was so bad that the men shearing sheep wanted to leave. The trees in our front yard were white as snow from dust. At times the dust from Collins’ operation could be seen for about four miles. He was asked “They could have moved it east or west and gotten it away from you?” and he answered “Yes, sir.” I called Mr. Collins in Austin and protested to him but it did no good, in fact they put in an additional machine. He was asked “Were you and your wife able to live out there all time these operations were going on?” and he answered “Well, my wife was working over here three days a week over here at town and it’d be so bad that when you come in we’d have to wash the dishes and you’d have to wash the tables off and everything, and it’d just stick on the tables and everything, and I’d get up and take the hose and go outside and wash off where we slept, the windows and every-, thing and try to clean it up when we stayed there. Sometimes we came over here to Mr. Overstreets, they was out of town and they told us to go up there any time we wanted to, and it would just be so bad we’d feel bad, and we’d just go over there and stay all night.” The dust affected my eyes and it gave me headaches. Dr. Whittington gave me dust shots every other day. At one time my eyes got so bad that we had to leave and go to my mother-in-law’s home. I still have trouble with my eyes. Dr. Whittington moved to Fort Worth and I am still going to him for treatment. I put medicine in my eyes three times a day. Dr. Treadwell has also prescribed medicine for my eyes. I have paid him and Dr. Whittington over $100.00 for such treatment.

We have put building paper over the windows of our home in an effort to keep the dust out. My wife also put some sheets over the windows but the dust continued to pour in like talcum powder. My wife would clean the house in the morning before she went to work and when she returned in the afternoon the dust would be all over everything in the house. The dust damaged our air conditioner, T.V. set, clock, sewing machine, radio and furniture.

The only question involved in King v. Columbian Carbon Company, 5 Cir., 152 F.2d 636, was whether or not a land owner was without recourse for damages caused to his land by the non-negligent, purposeful and permanent operation of a lawful business, which operation the owners knew, when their plant was being constructed, would continually damage the land of the owner. In deciding this question, the court discussed the cases of Fletcher v. Rylands, L. R. 1 Exch. 265, 1 Eng. Rul. Cas. 236; Turner v. Big Lake Oil Company, 128 Tex. 155, 96 S.W.2d 221; Cosden Oil Company v. Sides, Tex.Civ.App., 35 S.W.2d 815 and other landmark cases on the subject and concluded by saying:

“Our conclusion is that nuisances may exist without negligence and in such situations it, of course, is not requisite that negligence be alleged, but in all cases where negligence has created, or contributed to the creation of, the nuisance such negligence should be alleged. * * *
“The property of an individual may not be damaged for public use without just compensation, and assuredly it may not be damaged for private use without such compensation. As a concession to industrial progress and social utility the law will not abate a useful and lawful enterprise even though it be a nuisance, but further than that the law does not recede. It still requires payment for unwarranted, unreasonable, and substantial damage done to the property of another which is caused by the construction and operation, however skillful, of an industrial plant in a locality undevoted and unadapted thereto.
“What is a reasonable use, or whether a particular use is a nuisance, cannot be determined by any fixed general rules but depends upon the facts of each particular case, such as location, character of the neighborhood, the nature of the use, extent and frequency of the injury, and the effect upon the enjoyment of life, health, and property of the plaintiff. 31 Tex.Jur. 424, § 13.”

In Columbian Carbon Company v. Tholen, Tex.Civ.App., 199 S.W.2d 825, at page 828, (Writ Ref.), the court said:

“In Texas, contrarily to the appellant’s view, it is not thought that negligence — in the sense and respects so insisted upon by it as being indispensable —is a requisite to liability for such a private nuisance as was found to have grown out of the voluntary, intentional conduct on the part of this appellant in operating its plant — situated as it was with reference to the appellee’s home, with the consequences it knew were inevitably resulting and would indisputably continue to so result therefrom.
“To state the distinction another way, it is only where an act or a condition can become a nuisance solely by reason of the negligent manner in which it is performed or permitted, that no right of recovery can be shown independently of the existence of negligence, as appellant here contends. That rule is thus stated in 31 Texas Jurisprudence, page 421, Sec. 11:
“ ‘As a general rule, proof of negligence is not essential to imposition of liability for the creation or maintenance of a nuisance. That is so although the nuisance complained of may be the consequence of negligence. A nuisance does not rest on the degree of care used, but on the degree of danger or annoyance existing even with the best of care. Consequently, if a nuisance exists, the fact that due care was exercised against its becoming a danger or annoyance is no excuse. However, where the act or condition in question can become a nuisance only by reason of the negligent manner in which it is performed or permitted, no right of recovery is shown independently of the existence of negligence.’ ”

We hold that in cases of this character it is not necessary to plead and prove negligence.

Appellant contends the court erred in overruling its objection to the definition of the term nuisance and in refusing to give its definition. Appellant objected to the court’s definition because it constituted a comment upon the weight of the evidence and permitted a recovery against it while in the lawful use of its property in a reasonable manner and set forth in its objection what it considered a correct definition of the term. Appellees contend that appellant waived this objection because it did not request the court to give its suggested definition and tender such definition to the court. Our Supreme Court in Yellow Cab & Baggage Company v. Green, 154 Tex. 330, 277 S.W.2d 92, has held contrary to appellees’ contention. The court said:

“We hold that in a case where the trial court gives a definition or an instruction in connection with a special issue, and a party is not satisfied with the instruction or definition given, all that is necessary to be done by the complaining party is to file an objection to the court’s instruction or definition specifically and clearly pointing out wherein it is claimed the given instruction or definition is insufficient or is in error. It is not necessary for the objecting party to tender with his objection a substantially correct instruction or definition. Rule 274, Vernon’s Annotated Texas Rules of Civil Procedure.”

Neither the definition given by the court nor the definition suggested by appellant are taken verbatim from Columbian Carbon Company v. Tholen, Tex.Civ.App., 199 S.W. 2d 825, but both are substantially the same as the one approved in that case. The definition given contained all the material elements of a proper definition.

Appellant contends the findings of the jury on the damage issues are excessive. We have considered this point in the light of all the facts and circumstances in the record and have concluded that such findings are not excessive. World Oil Company, Inc. v. Hicks, 129 Tex. 297, 103 S.W.2d 962; Dallas Railway & Terminal Company v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017; Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835; Gulf, Colorado & Santa Fe Ry. Co. v. DeLeon, Tex.Civ. App., 373 S.W.2d 886, (Writ Ref. N.R.E.).

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment- is affirmed.


author: BATEMAN, Justice.

text:
    COOPER CONCRETE COMPANY, Appellant, v. Harold HENDRICKS et al., Appellees.
    No. 16425.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 8, 1965.
    Rehearing Denied Feb. 5, 1965.

      L. P. Snell, Jr., Dallas, for appellant.
    Clifford S. Dillard and David C. McCord, Dallas, for appellees.
   BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted therefor.

Harold Hendricks sued Cooper Concrete Company, a corporation, for damages for breach of contract. He alleged an oral contract between himself and appellant whereby the latter agreed to construct for him a storm and bomb shelter, which appellant warranted would be properly constructed and suitable for its intended use; that the warranty was breached in that, due to faulty construction of the shelter, rain water ran or seeped into it, making it entirely useless and worthless. Hendricks alleged his damages to be the entire price he paid for the shelter, $2,517.42, plus the value of certain articles of personal property damaged by the water in the shelter, plus the cost of removing the shelter from his premises.

Appellant answered by numerous special exceptions, a general denial and a special plea that accumulation of water, if any, in the shelter did not occur through defective construction, but from some other independent cause. It also impleaded W. V. Spence, trading as Ace Waterproofing & Caulking Co., alleging that it had employed Spence to apply waterproofing to the shelter, which .Spence guaranteed would keep the shelter waterproof for two years. Appellant prayed for judgment against Spence in the amount of any judgment recovered by Hendricks against appellant.

The jury found in response to special issues that: (1) appellant failed to construct the shelter in a manner suitable for the purposes for which it was being constructed; (2) the shelter was constructed in such manner that water seeped or leaked into it; (3) which seepage or leakage was caused by the unworkmanlike manner in which appellant did the work or had it done; (4) the reasonable market value of the shelter in its present condition was $2,317.42; but (5) if it had been constructed according to contract its value would have been $2,517.42; (6) (7) no damage was caused to the personal property; (8) it would cost $264 to fill the place occupied by the shelter; (9) $200 would reasonably compensate Hendricks for appellant’s having performed the contract in an unsuitable manner; (10) Spence warranted his waterproofing solution, but (11) (12) (13) (14) did not breach such warranty; (15) the water seepage was caused by faulty concrete work of appellant, but (16) the defect in construction could be repaired without impairing the structural efficiency of the shelter.

We think that under this verdict judgment should have been for Hendricks against appellant for $200 and that appellant take nothing against Spence. However, the court sustained Hendricks’ motion to disregard the findings in answer to Special Issues 4, 5, 9 and 16 and rendered judgment for him against appellant for $2,767.42, and denying appellant’s action over against Spence. The court properly disregarded the findings made in response to Special Issues 4 and 5, as there was no evidence to support them, but this is not true as to Special Issues 9 and 16. . .

Although, as established by undisputed evidence and numerous photographs, a substantial quantity of water seeped or leaked into the shelter shortly after it was built, and Hendricks testified that the shelter was worthless to him, Randall Cooper, appellant’s president and general manager, testified that it would cost from $150 to $250 to make the shelter suitable. Appellant also offered the testimony of Trig Bell and Wendell Halpin, both of whom were employed by appellant in a supervisory capacity and were familiar with the shelter in question. They both testified that they believed the defect creating the problem could be corrected by waterproofing the shelter. Bell said it cost between $180 and $200 to have this shelter waterproofed and that he .had had other shelters of about the same size waterproofed for around $200. This testimony must be accepted as evidence of some probative force in support of these findings. Rule 301, Vernon’s Texas Rules of Civil Procedure, authorizes such findings to be disregarded only when they have no support in the evidence.

The general rule in such cases is that “the correct measure of damages resulting from the breach of a building contract is ordinarily the reasonable cost of remedying the defects which constitute a breach of the contract, provided such contract has been ‘substantially performed’ and the defects in its performance can be remedied without impairing the building as a whole; but if such defects cannot be remedied without impairing the structural efficiency of the building, the measure of the damages is the difference between the value of the building as constructed and its value had it been constructed according to plans and specifications.” Tucker v. Northcutt, Tex.Civ.App., 248 S.W.2d 750, 751. See also Atkinson v. Jackson Bros., Tex.Com. App., 270 S.W. 848, 38 A.L.R. 1377; Totten v. Houghton, Tex.Civ.App., 2 S.W.2d 530, 534, no wr. hist.; McBurnett v. Smith & McCallin, Tex.Civ.App., 286 S.W. 599, 601, no wr. hist.; Loggins v. Gates, Tex.Civ. App., 301 S.W.2d 525, 527, wr. ref. n. r. e.; 13 Am.Jur.2d, Building, etc. Contracts, p. 82, § 80. Under this rule, the findings in response to Special Issues 9 and 16 determined the correct measure of damages. Being supported by evidence, they could not properly be disregarded. Appellant’s first, second and fourth points, asserting error in disregarding the findings made in response to Special Issues 9 and 16, and in rendering judgment for more than $200, are sustained.

By its third and fifth points of error appellant asserts that Special Issue 8, inquiring as to the cost of filling the shelter so that it would be as it was prior to its construction, should not have been submitted, and that it was error for the court to refuse to disregard the answer of $264, because the special issue did not contain the correct measure of damages. At the time the charge was submitted the court could not know what the correct measure of damages was; it depended on whether the jury found, in response to Special Issue 16, that the defect in construction could be repaired without impairing the structural efficiency of the shelter. If the answer to Issue 16 had been in the negative, Issue 8 would possibly have become material as determining a part of the correct measure of damages. Therefore, we cannot say that it was erroneously submitted, and the third point is overruled.

However, in view of the affirmative answer to Special Issue 16, we think Issue 8 became immaterial and the jury’s answer thereto should not have formed the basis of any part of the judgment rendered. We cannot tell from the record whether it did or not, but in any event the court erred in overruling appellant’s motion to disregard it. The fifth point is sustained.

Appellant’s points of error 6 through 16 complain of error in overruling eleven of appellant’s special exceptions to the plaintiff’s petition. We find no error in any of the rulings complained of, certainly none which could be said to have caused the rendition of an improper judgment. Rule 434, T.R.C.P. These points are therefore overruled.

By its points of error 17 through 20, appellant says the court erred in rendering judgment against it for $2,767.42 because there was no evidence, or the evidence was insufficient, to support the jury’s answers to Special Issues 1, 2, 3 and IS. We have carefully reviewed the entire record and conclude that, while the evidence of the exact cause of the entry of water into the shelter is not strong, the appellant’s president and general manager did testify that it could not be used as a shelter in its then condition and that it would cost $150 to $250 to make it suitable. This, coupled with Hendricks’ testimony and the photographs showing the water standing several inches deep in the shelter, in our opinion was sufficient evidence to warrant submission of the issues in question and to support a judgment against appellant for the reasonable cost of repairs, as found by the jury. The points, as stated, are overruled.

The judgment is reversed and remanded to the court below with instructions to enter judgment on the verdict in favor of Harold Hendricks against Cooper Concrete Company in the sum of $200, with interest from December 6, 1963 at the rate of six per cent per annum, and that Cooper Concrete Company take nothing by its cross action against W. V. Spence, trading as Ace Waterproofing & Caulking Company, without prejudice to the right of any party to file a motion for new trial, and for such other proceedings as may be proper and lawful. The costs of the trial court are taxed against appellant, and all costs incident to the appeal are taxed against the appellee, Harold Hendricks.

Reversed and remanded.