author: CHAPMAN, Justice.

text:
    Martin BEIN et al., Appellants, v. J. D. McPHAUL, Appellee.
    No. 7147.
    Court of Civil Appeals of Texas. Amarillo.
    May 7, 1962.

      Key, Carr, Carr & Clark, Lubbock, for appellants.
    Timberlake & Wassell, Lubbock, for ap-pellee.
   CHAPMAN, Justice.

Appellants, Martin Bein and wife, Eu-gina Bein, and James H. Brown and wife, Deana Brown, sought damages in the Court below against Mrs. Inez Sloan, d/b/a Sloan’s Nursing Home, and J. D. McPhaul for alleged violation of a building restriction in Bender Terrace Addition to the City of Lubbock by the construction of a nursing home to be used for the care of aged people on Lot 92 in the addition. A motion for summary judgment was granted J. D. McPhaul. Appellants dismissed as to Inez Sloan, d/b/a Sloan’s Nursing Home and have perfected their appeal from the take nothing judgment against them.

All emphasis herein are ours.

The first point of error asserted is that there was a disputed issue of material fact as to whether Bender Terrace Addition to the City of Lubbock was developed pursuant to a scheme of development for residential purposes only and the only other point is that “ * * * there were disputed issues of material fact regarding the defendant’s being estopped to deny that Lot 92 * * * was restricted exclusively to residential uses.” We shall consider the points together.

The addition consists of 313 lots carved from approximately 92 acres of land platted and dedicated at different times over a 2}4-year period in 9 separate tracts or segments of land. Each dedication deed contains the applicable restrictive covenants for that particular tract.

Appellants own lot 81 and the West 60 feet of lot 80 of the tract, or segment, of the addition consisting of lots 52 through 87. The plat and dedication deed consisting of these 35 lots show recordation on March 3, 1959. The Browns and Beins purchased their lots respectively on the dates of June 16, 1959 and in September, 1959.

Appellee owns lot 92, which was platted and dedicated on May 5, 1959 and filed for record on June 4, 1959.

Paragraph 9 of the covenant affecting appellants’ property provides as follows:

“ * * * Notwithstanding anything to the contrary herein contained the provisions of this instrument shall apply only to lots 52 through 87, both inclusive of said Bender Terrace Addition.”

Paragraph 9 of the covenant affecting appellee’s property reads as follows:

“ * * * Notwithstanding anything to the contrary herein contained the provisions of this instrument shall apply only to lots 93 and 94 of the said Bender Terrace Addition, except paragraph 3 hereof which applies to lot 92.”

Paragraph 10 of the same instrument provides:

“ * * * Lot 92, being zoned R-3, shall be subject to the erection of a multi-family dwelling in accordance with ordinances promulgated by the city of Lubbock.”

It is also to be noted that paragraph 10 just quoted was amended by an instrument executed by all the lot owners of said tract: eg. the owners of lots 92, 93, and 94, and as amended reads as follows:

“ * * * Lot 92, being zoned R-3 may be used for a multi-family dwelling or any other purpose authorized under the R-3 classification of the zoning ordinances of the City of Lubbock.”

In the motion for summary judgment ap-pellee pleaded that the lots owned by appellants were a group of lots platted, dedicated, and restricted by a separate and distinct plat and dedication deed and that the restrictive covenants imposed thereon were entirely different to those imposed upon lots 92, 93, and 94.

The instruments filed in connection with the application for summary judgment confirmed the pleadings just recited and also showed the Lubbock City Ordinance promulgated on February 12, 1959 wherein the area containing lots 88 through 92 was zoned R-3, and also showed maps or plats showing the R-3 zoning and the buffers between the residential only property and the Brownfield Highway, part of which was lot 92 and part of which showed lots zoned for church property. These maps are herewith reproduced:

The record also shows an affidavit made by the Vice-President of Bender Terrace Addition, Inc. ever since the corporation was formed, accompanied by plats showing that the restrictive covenants imposed against the various sections of the áddition were all different from one another, each particular section being independent of the other and each being platted, dedicated, and restricted according to the ideas of the developers; that of the 313 lots included in the 9 separate sections a number were restricted for single family residences, some for apartments, some for duplexes, at least one for a church, and several for any purpose permitted under the R-3 classification; that the developers never had any intention of developing the 92-acre tract into lots limited solely to single family residences for the reason that a substantial portion lies along the Brownfield Highway and another portion adjacent to the Smiley-Wilson Junior High School; that the plan of the developers was to have portions zoned R-2 and R-3, which permitted duplexes, apartments, doctor’s clinics, etc.; that they never held out to the public otherwise and that such was public information and knowledge in view of the fact that they made application for such zoning on several occasions.

Appellants allege the Bender Terrace Addition was developed pursuant to a scheme to make it an attractive, exclusive, residential district and that said allegations are not controverted in the affidavit. We believe what we have said about the record in the preceding paragraphs and what we shall say hereafter show a complete contradiction of the allegations to the effect that the entire addition was developed pursuant to a scheme to make it exclusively a residential district, as do the plats reproduced above, and that the record shows as a matter of law that the entire addition was not developed pursuant to such a scheme.

The record shows the covenants, each segment by their own terms, affect and pertain only to the particular segment or tract being dedicated, that the land embracing Lot 92 was zoned R-3 prior to the time the lots owned by appellants were platted, and that at the time they purchased their lots anyone examining the records would have learned of these separate conditions included in the nine different segments. The record also shows that paragraph 10 of the restrictions affecting that segment which included Lot 92 was amended by agreement of all the lot owners of that segment of the addition which, together with the rules promulgated by the City of Lubbock for R-3 zoning, permitted it to be used for a multi-family dwelling or any other purpose authorized under the R-3 classification of the zoning ordinance of the city. That type zoning ordinance permitted churches, convalescent homes, multi-family dwellings, nurseries, hospitals, apartment houses, museums, art gallery’s, etc.

We think an analysis of the plats reproduced above shows considerable study and careful planning by which the developers were careful to make a buffer zone between the C-4 commercial area across the Brownfield Highway to the west and north and the R-l residential zoning of the area south of 27th St. and east of the alley at the rear of Lot 92. In any event it shows a condition or situation contrary to appellants’ contention that the entire Bender Terrace Addition, with its nine separate and distinct segments, each containing its separate covenants was developed pursuant to a scheme of development for residential purposes only. The dedication deeds recite the consideration for their execution was the special benefit to the remainder of the property of the dedicator and we believe the record shows very clearly that the buffer zone method used would certainly be of special benefit to the other areas owned by the developers. Additionally, each dedication deed provided the covenants therein were to run with the land and should be binding on all parties claiming under them for a period of 25 years “from the date these covenants are recorded.” Since the segments contained different restrictions and were dedicated at different times these facts themselves showed a lack of uniformity or common plan and showed a lack of mutual and reciprocal burdens on all lots similarly located. Gray v. Lewis, Tex.Civ.App., 241 S.W.2d 313 (N.R.E.). Even if we were to say a general, uniform plan for development was shown, which is not true in the instant case, not only would it have been necessary to show that fact, Calvary Temple v. Taylor, Tex.Civ.App., 288 S.W.2d 868, but it would also have been necessary to show it was intended that the restrictive scheme should enure to the benefit of all owners of property in the addition. Monk v. Danna, Tex.Civ.App., 110 S.W.2d 84 (Writ Dismissed).

An affidavit by N. W. Whitwell that a salesman by the name of Eledge contacted him on behalf of Bender Terrace Addition, Inc. and represented to him that the entire addition was being developed pursuant to a scheme to make it exclusively a residential district is simply a conclusion of law and fact made by the affiant. It does not even show that the salesman represented he was making statements on behalf of the developers and shows no authority in either the salesman or affiant to bind the developers nor to represent the addition was restricted in such manner that it would be a highly exclusive residential area, or even exclusively residential. Additionally, the affidavit stated the affiant was advised that some lots near the cul-de-sac on 27th St. were restricted so apartments could be built thereon. Of course a builder, as the record shows Mr. Whitwell was, would be presumed to know that apartment houses carried R-3 zoning and its permissible use. Further, there is no statement in the affidavit that any representation made by the salesman was ever communicated to appellants so as to bring appellee within the rules of an estoppel. The affidavit does not, even by a conclusion of the affiant, seek to show what connection, if any, Meek, Osborne and Terrell had with the developers who platted and dedicated the addition. Such affidavits would constitute no evidence of the facts sought to be established in this case in view of the abundance of actual and constructive summary judgment evidence to the effect that the addition was not developed pursuant to a scheme of development for residential purposes. The conclusion of the affiant that Ray Eledge contacted him on behalf of the addition would not be admissible in evidence in a trial on the merits to show he had the authority to speak for the developers but was only a conclusion or opinion by the affiant that he contacted him on behalf of the developers of the addition. This is not sufficient under Rule 166-A, V.A.T.R. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 399; Munoz v. Heights Savings & Loan Association, Tex.Civ.App., 319 S.W.2d 945; Heath v. City of Abilene, Tex.Civ.App., 337 S.W.2d 179, 180; Farmers State Bank v. First State Bank of Liberty, Tex.Civ.App., 317 S.W.2d 768; Franklin Insurance Co. v. Rogers, Tex.Civ.App., 316 S.W.2d 116.

Several affidavits were also made to the effect that some signs were erected in or near the addition which contained the word “restricted” but they did not swear to the limitations to which the signs attempted to restrict the addition. The fact that they could only remember the word “restricted” would not raise even an inference that it was restricted exclusively to residential use, even though the word “restricted” lead them to so believe.

The owner of land may impose such conditions and restrictions as he sees fit and proper provided they do not contravene public policy and the contracts are not otherwise illegal. Curlee v. Walker et al., 112 Tex. 40, 244 S.W. 497.

“Whether a person not a party to a restrictive covenant has the right to enforce it depends upon the intention of the parties in imposing it. This intention is to be ascertained from the language of the deed itself, construed in connection with the circumstances existing at the time it was executed.” Russell Realty Co. et al. v. Hall et al., Tex.Civ.App., 233 S.W. 996 (Writ Dismissed). Therefore, as a matter of law, appellants purchased their lots knowing that the provisions of their plat and dedication applied only to Lots 52 through 87 and knowing- either personally or constructively of the R-3 zoning to the west and north of the lots they purchased and hence that the addition was not developed pursuant to a scheme of development for strictly residential purposes. A person is bound by restrictive covenants attaching to property of which he has actual or constructive notice and is chargeable with notice of all conditions, restrictions, exceptions, or reservations appearing in his chain of title concerning which he is put on notice. Chandler v. Darwin, Tex. Civ.App., 281 S.W.2d 363; Spencer et ux. v. Maverick, Tex.Civ.App., 146 S.W.2d 819, Syl. 5.

In construing the covenants restricting the use of the land and the methods by which each segment was restricted without regard to the others the trial court had the right to resolve all doubts in favor of the freer use of the property and against restrictions. Southhampton Civic Club et al. v. Couch, 159 Tex. 464, 322 S.W.2d 516; Baker et al. v. Henderson, 137 Tex. 266, 153 S.W.2d 465.

As heretofore stated, this is an ap-j peal from a summary judgment granted ap-pellee. The burden was upon the movant, J. D. McPhaul, to show there was no genuine issue of fact as to the cause of action asserted by plaintiffs below, appellants here. Gulbenkian et al. v. Penn, 151 Tex. 412, 252 S.W.2d 929.

“When a motion for summary judgment is supported by affidavits, depositions, stipulations or other extrinsic evidence sufficient on its face to establish facts, which if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate relief under subdivision (f) of Rule 166-A.” Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500. It follows from what we have said throughout this opinion that we do not believe appellants showed opposing evidentiary data which raised an issue as to a material fact. Accordingly, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McNEILL, Justice.

license: Public Domain

text:
    VETERANS OF FOREIGN WARS, POST NO. 837, et al., Appellants, v. Yvonne Jones BYROM et vir, Appellees.
    No. 6537.
    Court of Civil Appeals of Texas. Beaumont, Texas.
    April 12, 1962.

      James Kerr, Beaumont, for appellants.
    D. H. O’Fiel, Eugene L. Lefler, Beaumont, for appellees.
   McNEILL, Justice.

Appellant, Veterans of Foreign Wars, Post No. 837, located at Beaumont, Texas, on April 23, 1957, as lessor, executed a lease on a tract of land fronting 203.6 feet on 11th Street in said City to Yvonne Jones Byrom, et vir, lessee. The lease was for a period of two years at a monthly rental of $200.00 per month. During the term of this lease a dispute arose between appellant Veterans of Foreign Wars, Post No. 837, and appellee, Veterans of Foreign Wars, Post No. 1806, also located in Beaumont, as to which of these bodies owned the leased tract of land.

This dispute not having been settled, Yvonne Jones Byrom, et vir, filed suit in the District Court against the two Posts as defendants, alleging the existence of the lease and the dispute over title to the land between the two Posts and praying that a Receiver be appointed to protect lessees’ interest. The court appointed a Receiver. Both Posts appeared in the suit and filed separate answers, each of which admitted the existence of the lease, and each Post filed a cross action over against the other for title to the land involved. Motion for summary judgment in its behalf was made by Post No. 1806 against Post No. 837. This motion was granted, the Receiver discharged, and judgment awarded Post 1806 for title to the land.

Post No. 837 has appealed from this action. The one point of error presented by appellant Post No. 837 asserts that the trial court erred in granting the motion for summary judgment based on the findings of such judgment:

“POINT OF ERROR
“The court below erred in granting the Motion for Summary Judgment based on the finding in such Judgment ‘that the Defendant, Beaumont Post No. 837, Veterans of Foreign Wars of the United States is the same identical corporate entity as the Farrell D. Minor, Jr., Post No. 837, Veterans of Foreign Wars of the United States, and the same identical corporate entity as Beaumont Post No. 837, Veterans of Foreign Wars, Inc. and that said corporate entity is still in existence, and that the said corporate entity has operated under various assumed names, all using the Number 837; but that its charter used by the National Headquarters of the Veterans of Foreign Wars of the United States has been forfeited and cancelled; and the Court being further of the opinion that all questions concerning title to the property in controversy and constituting the subject matter of this suit are moot.’ ”

In order to understand the controversy between the two Posts it is necessary to state the following: On February 21, 1950, there was filed in the office of the Secretary of State of Texas a charter for the Beaumont organization in the name of The Farrell D. Minor, Jr., Post No. 837, Veterans of Foreign Wars of the United States at Beaumont, Texas. This incorporation was under Chap. 9, Title 32 of the Revised Civil Statutes of the state, as amended, Vernon’s Ann.Civ.St. art. 1396 et seq. About a year later Beaumont Post No. 1806, Veterans of Foreign .Wars of the United States was incorporated. Sometime in 1955, by charter from the Veterans of Foreign Wars of the United States, the two above mentioned posts were consolidated under the designation of Beaumont Post No. 837, Veterans of Foreign Wars of the United States. And thereafter, on June 19, 1955, Beaumont Post No. 1806 executed a deed to the subject land to Beaumont Post No. 837, Veterans of Foreign Wars, Inc. Somewhat later, Beaumont Post • No. 1806, appellee herein, was reorganized and received a charter from the .Veterans of Foreign Wars of the United States as such reorganized post. Immediately after the reorganization of said post, a deed was made to the land involved, executed by the officers of Beaumont Post No. 837, appellant herein, conveying said land to the reorganized Post No. 1806. Whether this deed was properly executed provoked this suit. It was dated May 10, 1958, and recited “that the Farrell D. Minor, Jr. Post No. 837, Veterans of Foreign .Wars of the United States, a corporation duly organized and existing under and by virtue of the laws of the State of Texas, and being the same corporate entity as Beaumont Post No. 837, Veterans of Foreign Wars, Inc., which was named as grantee in a certain deed dated June 19,1955 * * The deed was executed by grantor “Farrell D. Minor,- Jr. Post No. 837, Veterans of Foreign Wars of the United States.”

During the pendency of the above described Byrom suit, to-wit, on May 26, 1961, the National organization of Veterans of Foreign Wars canceled the charter of appellant, Beaumont Post No. 837. Shortly thereafter the Motion for summary judgment in behalf of appellee Post No. 1806 was filed.

After the action of the Commander in Chief of the National organization canceling the charter of Beaumont Post No. 837 granted by it, the Department of Texas, Veterans of Foreign Wars of the United States, intervened in the above suit and alleged that upon forfeiture of the charter granted by the National organization on May 26, 1961, intervenor became entitled to all the properties and effects belonging to said Post No. 837. It further pleaded that said appellant Post No. 837, on May 10, 1958, and before the forfeiture of its charter took place, duly executed and delivered its deed to appellee Post No. 1806 for the property here involved, and intervenor disclaimed any interest in the title to said property and suggested to the court that the subject matter of the suit is moot and there no longer exists any controversy with reference to title to said property.

We have examined the record and think the court’s findings complained of in appellant’s only point are- established by the uncontradicted evidence. The burden of appellant’s whole argument here; is summed up in its brief as follows: In order for the trial court to rule as he did it was “necessary for him to find facts with reference to the corporate status of the appellant. In order for the court to hold as a matter of law that appellant is entitled to the land in controversy, the court must find as a matter of law that Beaumont Post No. 837, appellant, is a Texas corporation. The record, with reference to this fact, is void. Appellant did not apply for a corporate charter and has not been issued a corporate charter of the State of Texas.” The first paragraph of appellant’s First Amended Original Answer upon which it went to trial reads:

“All parties hereto are residents of Beaumont, Jefferson County, Texas, the said Post 837 being duly incorporated under and by virtue of the laws of this State * *

This allegation precedes the general denial in said answer. In addition to said answer, the first paragraph of appellant’s cross action reads:

“The cross-plaintiff .of Veterans of Foreign Wars of the United States Post 837 is a corporation; duly incorporated by virtue of the laws of the State of Texas with its principal place of business in Beaumont, Jefferson County, Texas, the cross-defendant Post 1806 of the Veterans of Foreign Wars of the United States is a duly incorporated organization under and by virtue of the laws of the State of Texas with its principal place of business in Beaumont, Jefferson County, Texas.”

Appellee’s cross action upon which it went to trial contained this allegation:

“This cross-plaintiff would show unto the Court that both the Cross-Plaintiff and the Cross-Defendant are corporations, duly incorporated under and by virtue of the laws of the State of Texas, and having their offices and ■principle places of business in Beaumont, Jefferson County, Texas.”

“What has been alleged by both parties will be accepted as establishing the fact in respect of which the allegation is made — both by the trial court and by the appellate court.” 33 Tex.Jur., p. 643. See, also, Fort Worth Warehouse & Storage Co. v. Maddocks, Tex.Civ.App., 33 S.W.2d 227; Wilson v. Beck, Tex.Civ.App., 286 S.W. 315 (321). Neither party either by sworn or unsworn pleadings denied that it or its adversary was incorporated. In such instance the allegation itself is sufficient proof thereof. 14 Tex.Jur .2d 592-594.

The trial court did not err in rendering the judgment it did. It found that the appellant, Beaumont Post No. 837, Veterans of Foreign Wars of the United States, is the same identical corporate entity as the Farrell D. Minor, Jr., Post No. 837, Veterans of Foreign Wars of the United States, and the same identical corporate entity as Beaumont Post No. 837, Veterans of Foreign Wars, Inc. The corporate charter granted to this Post by the State of Texas contained the provision that the Post “shall at all times remain under the jurisdiction of and be governed according to the Constitution and By-laws of the Veterans of Foreign Wars of the United States.” The order of the Commander in Chief of said National organization canceling the charter of said Post has been accepted as an accomplished fact by all interested parties. This order concludes with the provision: “The Commander, Department of Texas, will at once recover the charter, rituals, paraphenalia and all monies and other property of the Post in accordance with the provisions of the National By-laws.” Since this order has not been assailed, we accept it as having been made under proper authority. It will be recalled that the charter granted to this Post by the State provided that it had accepted the provisions of, and was incorporated under, the provisions of Chap. 9, Title 32 of our Civil Statutes, as amended. Article 1403 of this chapter provides that “upon the demise of any subordinate body so incorporated, all property and rights existing in such subordinate body shall pass to, and vest in, the grand body to which it [is] attached * * *.” We need not decide, in this instance, whether the National organization of the Department of Texas is the grand body.

The charter granted by the State of Texas to appellant Post 837 provided that the Post shall at all times remain under the jurisdiction of, and be governed according to the Constitution and By-laws of, the Veterans of Foreign Wars of the United States. When the Post’s charter issued by the National organization was canceled and the property of the Post ordered disposed of in accordance with the provisions of the National bylaws, this, in practical effect, constituted a “demise” of said Post or subordinate body within the meaning of that term as used in Art. 1403 so that thereafter said Post may not assert beneficial title to the property. Compare, Humble Oil & Ref. Co. v. Blankenburg, 149 Tex. 498, 235 S.W.2d 891.

The judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    Barbara June MUNCY et vir, Appellants, v. GENERAL MOTORS CORP. et al., Appellees.
    No. 16045.
    Court of Civil Appeals of Texas. Dallas.
    March 16, 1962.
    Rehearing Denied May 11, 1962.

      Jones, Brian & Jones, Marshall, and Wm. Hurwitz, Longview, for appellants.
    Gordon Wellborn, Henderson, Bur ford, Ryburn & Ford, Spencer C. Relyea, III, Strasburger, Price, Kelton, Miller & Martin, and W. Richard Davis, Dallas, for ap-pellees.
   DIXON, Chief Justice.

This is an appeal from an order sustaining a plea of privilege. •

Appellants Barbara June Muncy and her husband Charles Muncy, residents of Kil-gore, Gregg County, Texas, filed suit in Dallas County, Texas for personal injuries sustained by Barbara June Muncy in an automobile mishap in Kilgore, Gregg County, Texas.

The defendants, appellees here, are C. L. Lane and wife, Alice Hudnall Lane, and the latter’s mother, Nellie Hudnall, a widow, all three of whom are residents of Over-ton, Rusk County, Texas, and Davis Smith, individually and doing business as Smith Chevrolet Company, a resident of Henderson, Rusk County, Texas. Also a defendant is General Motors Corporation, a Delaware Corporation, with a permit to do business in the State of Texas, its principal office and place of doing business in Texas being located in Dallas, Dallas County, Texas, where the suit was brought.

C. L. Lane and wife, Alice Hudnall Lane, Nellie Hudnall, and Davis Smith filed pleas of privilege seeking to have the suit transferred to Rusk County, Texas for trial. In reply appellants filed their controverting affidavits seeking to retain venue in Dallas County, under Subdivisions 4, 23, 27 and 29a of Art. 1995, Vernon’s Ann.Civ.St. Only Barbara June Muncy and her husband Charles Muncy have appealed from the order sustaining the plea of privilege.

EVIDENCE

On the early afternoon of September 15, 1960 appellee Alice Hudnall Lane was driving a 1960 model Chevrolet four-door automobile which Mrs. Lane and her husband had purchased new on August 27, 1960. Sitting to the right of Mrs. Lane on the front seat was her mother Mrs. Nellie Hud-nall. On the back seat was her five year old son.

Mrs. Lane parked the car head-in at an angle against the curb on the Main Street in Kilgore, Texas in front of Duncan’s Variety Store. The curb at this point is six to eight inches in height. The sidewalk is sixteen to eighteen feet in width.

After parking the car Mrs. Lane took the ignition key from the ignition switch. She testified that she thought she had turned the switch off, but the evidence is plain that she had not done so. The 1960 model Chevrolet was so designed and constructed that it was possible to take the ignition key from the switch without turning off the motor and without taking the car out of gear. That is evidently what happened on this occasion, for there is uncontradicted testimony that the motor was still running after Mrs. Lane had taken the ignition key from the switch and had alighted from the car, unlocked the rear door, and taken her young son from the rear seat.

Meantime Mrs. Hudnall had found that she could not leave the car from the right side where she had been sitting because another car had been parked so close that the door on the right side would not open wide enough to enable her to make her exit. Therefore she slid across the front seat from right to left in order to leave the car through the front left door.

While Mrs. Hudnall was attempting to leave the car through the left front door, the car motor, which had been running quietly, suddenly and with a loud roar began running “wide open”. At the same time the car lurched and started in motion, bounced against the curb two or three times, then jumped the curb, ran across the sidewalk against the front wall of Duncan’s Variety Store, where it again bounced two or three times before some unknown person either cut off the motor or threw the car out of gear.

Unfortunately, appellant Mrs. Barbara June Muncy was a sidewalk pedestrian in front of Duncan’s Variety Store when the runaway car crossed the sidewalk. She was pinned against the front wall of Duncan’s Variety Store and sustained serious injuries. One of her legs was almost severed and later had to be amputated. She sustained other injuries.

Did Mrs. Hudnall inadvertently step on the accelerator as she was sliding along the front seat from right to left in order to make her exit through the left front door? The accelerator pedal is cradled beside a hump in the middle where the drive shaft goes back under the floor board. In a deposition Mrs. Hudnall testified that she did not know whether she had stepped on the accelerator. She does not drive an automobile and does not know the brake pedal from the accelerator pedal. She did not remember whether she slid across the front seat feet first or body first. She testified that she did not know whether she was partly out of the car when it suddenly burst into action. However, she also testified that she thought she had one leg in the car at the time, which must have been her right leg. To get out on the left side she had to slide under the steering wheel with her body.

There is some disagreement between counsel as to Mrs. Hudnall’s testimony concerning whether she had “frozen” onto the accelerator, that is, whether she had pushed the accelerator to the floor and kept it there continuously with her foot. In view of this disagreement we believe it well to quote her testimony in regard to the subj ect:

“Q You know that you were planning or acting in the plan of moving your feet from the passenger’s side of that car over to the driver’s side?
“A Yes.
"Q And it was then that the automobile lurched and started up, you. know that?
“A I know that it did lurch.
“Q And you know that it lurched' after you started to move, don’t you?
“A Yes.
“Q And you know that you didn’t freeze or stick your foot on the accelerator and hold it down, don’t you ?
“A I don’t know the accelerator from the brakes.
“Q Then you know that you didn’t have your foot on anything there holding it down, don’t you?
“A I did not.
“Q Ma’am?
“A I did not.
“Q You do know that. Thank you. Now, was the door open on the driver’s side when you were attempting to get over to get out?
“A Yes.”

There is testimony to the effect that after the car hurst into action the roar of the engine and the motion of the car and the wheels were continuous and steady.

Davis Smith testified that his company had sold the car to the Lanes and had given it the usual pre-delivery inspection before delivering it to them and had found nothing wrong with it.

Alvin Doyle, Jr., an automotive expert, testified at some length concerning the design and construction of the 1960 model Chevrolet and the linkage system between the accelerator and the carburetor, including the spring whose function it is to bring the accelerator back to position when pressure on it is released. In connection with his testimony several exhibits were introduced including an actual carburetor of the same model as that used in the Lanes’ automobile. With the help of these exhibits Doyle described the various parts in the linkage system by which movement of the accelerator pedal is communicated to the accelerator and the transmission whereby the speed of the vehicle is regulated. He designated a number of points of friction and resistance in the carburetor and the transmission linkage. He further testified that the car, while parked with the motor running, would not have jumped the curb if the throttle had not in some way been opened with the car in gear.

Doyle’s testimony also includes this question and answer:

“Q On the next assumption, Mr. Doyle, let’s assume all of the facts I have stated to you and that the passenger instead of freezing on the throttle, was tramping on it; would it or not have remained stuck and in a continuous roar under the mechanical make-up of that model of Chevrolet if the throttle had been tramped on or jiggled?
“A No.”

Steve Selph, an automobile mechanic, towed the car after the accident to the Center Chevrolet Company at Kilgore, Texas, where it was stored for a time. Selph testified that he checked the car after the accident to see if anything was wrong with it. He checked the transmission to see if it would move or hang in gear, tested the accelerator linkage to see if it was working, inspected the carburetor and the gasoline feed, and operated the foot feed with the motor running. He found nothing wrong.

ADMISSIONS OF GENERAL MOTORS CORPORATION

In response to requests for admissions General Motors Corporation made certain answers which appellants assert are important in regard to the question whether appellants made out a bona fide cause of action against General Motors Corporation. Some of these admissions are:

(1) General Motors Corporation designed, manufactured, assembled and constructed the Chevrolet automobile sold by Smith Chevrolet Company to-the Lanes, which automobile was involved in the accident in question.
(2) The said automobile was designed and constructed to permit (a) withdrawal of the ignition key with the ignition switch in an “on” position without stopping the motor, and (b) withdrawal of the key with the ignition switch in “on” position and the car in drive gear without stopping the motor.
(3) The said automobile was designed (a) to prevent the key from being removed from the ignition switch when said switch was in “off” position, and (b) to prevent the key from being removed from the ignition switch when in “off” position to guard against leaving the ignition switch in “off” position but not locked.
(4) The said automobile was designed and constructed (a) without an indicator light to come on for the specific purpose of warning when the ignition key is removed from the ignition switch in an “on” position when (A) such switch is in “on” position and (B) when such switch is in “on” position and the motor is running.
(5) The automobile was designed and constructed without a buzzer to sound a warning for the purposes described in (4) above.
(6) A simple and uncomplicated design in construction of the automobile could have prevented removal of the ignition key from the ignition switch (a) when the switch is in “on” position ; and ■ (b) when the switch is in “on” position with the motor running.
(7) General Motors Corporation installed on some of its 1960 model cars other than Chevrolets and Cadillacs (a) an indicator light to show when the ignition switch is turned to “on” position if the parking brake is not released ; (b) a safety buzzer which may be pre-set to any desired speed to warn when the speed should be reduced; and (c) an ignition switch with an “ACC” position, which position (A) permits the use of the radio and other accessories without having the ignition on; (B) prevents removal of the ignition key when the switch is in on “ACC” position; and (C) prevents re-
moval of the ignition key when in “ACC” position should the radio be left on accidentally.
(8)General Motors Corporation could have installed devices on its 1960 model Chevrolets similar to the devices described in (7) above.

OPINION

Appellants’ first five points of error arc in substance as follows: (1) it was error to sustain the pleas of privilege on the theory that appellants’ pleading and proof failed to show (a) General Motors Corporation was a resident of Dallas County, Texas; (b) a bona fide cause of action against General Motors Corporation; and (c) a joinable cause of action against all defendants within the meaning of Subdivision 4, of Art. 1995, VACS; (2) it was error to sustain the pleas on the theory that appellants failed to plead and prove that General Motors Corporation had an agency or representative in Dallas County within the meaning of Subdivisions 23 and 27 of Art. 1995, VACS, and that appellants failed to prove that appellees are necessary parties within the meaning of Subdivision 29a of Art. 1995, VACS; (3) there is no evidence to support the judgment; (4) the evidence is insufficient to support the judgment; and (5) the judgment is so against the great weight and preponderance of the evidence as to render the judgment manifestly unjust.

The third, fourth and fifth of the above points are too general to require our consideration, therefore we shall not discuss them individually or separately. Phillips v. Le Gallez, Tex.Civ.App., 329 S.W.2d 922; Redman v. Cooper, Tex.Civ.App., 160 S.W.2d 318; Universal Life Insurance Co. v. Wallace, Tex.Civ.App., 149 S.W.2d 662. However, appellants’ first point requires a review of the evidence, so the purpose of the second, third and fourth points will in effect be accomplished.

Subdivision 4 of Art. 1995, VACS, provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.

Our courts by judicial construction have required plaintiffs who seek to invoke Subdivision 4 to establish certain venue facts which are not specified in the Statute. In addition to proving that one of the defendants resides in the county where suit is pending the plaintiff must prove that the defendants are properly joined and that plaintiff has a bona fide cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Park v. Wood, 146 Tex. 62, 203 S.W.2d 204. Appellees concede that appellants have adequately met the first two of the above requirements: that General Motors Corporation for venue purposes is a resident of Dallas County, Texas, where suit is pending, and that the non-resident defendants are proper parties to this suit. But ap-pellees contend that appellants have failed to prove a bona fide cause of action against General Motors Corporation which admittedly manufactured the automobile involved in the accident. It is conceded that General Motors Corporation had no privity of contract with appellants.

Formerly the general rule seems to have been that a manufacturer of an article was not liable to a person with whom the manufacturer had no privity of contract when such person was injured as a result of negligence in the manufacture of the article. However, the old rule has either been abandoned or modified in most jurisdictions in such manner as to admit of many exceptions. For discussion of the subject see Flies v. Fox Brothers Buick Co., 196 Wis. 196, 218 N.W. 855, 60 A.L.R. 357; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050; United States Radiator Corp. v. Henderson, 10 Cir., 68 F.2d 87; Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34 N.W.2d 853; and 65 C.J.S. Negligence § 100, pp. 618-633.

Appellants’ first contention under their point No. one is that General Motors Corporation was negligent and liable to appellants for designing and constructing the Chevrolet car as it is described under the heading “ADMISSIONS OF GENERAL MOTORS CORPORATION” here-inbefore set out. We find ourselves urn able to agree with appellants.

We believe that a correct statement of the rule in regard to a manufacturer’s liability in this particular is that which is found in “Restatement of the Law of Torts”, page 1073, § 395:

“A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its portable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured.”

See also same text on page 1084, § 398; Johnson v. Murray Co., Tex.Civ.App., 90 S.W.2d 920; J. C. Lewis Motor Co. v. Williams, 85 Ga.App. 538, 69 S.E.2d 816; Blitzstein v. Ford Motor Co., 5 Cir., 288 F.2d 738; Carpini v. Pittsburgh & Weirton Bus Co., 3 Cir., 216 F.2d 404; United States Radiator Corp. v. Henderson, 68 F.2d 87; Hartmon v. National Heater Co., 240 Minn. 264, 60 N.W.2d 804.

However, the undisputed facts of this case fail to bring it within the above rule. Mrs. Lane was well aware of the manner in which the ignition key and the switch were designed and constructed. She could have taken the car out of gear and stopped the motor from running while the car was parked. In fact she thought she had done so. She was not using the car in the manner and for the purpose for which it was intended — at least appellants have failed to prove that .the car was being so used. There is no showing in this case that the car in question was dangerous if used properly and in the manner and for the purpose for which it was intended.

Furthermore, the car was not being lawfully used. Art. 6701d, § 97, VACS, expressly provides that no person driving or in charge of a vehicle shall permit it to stand unattended without first stopping the engine, and effectively setting the brake thereon. In the absence of evidence to the contrary we shall not presume that General Motors Corporation designed the car for use in a manner violative of the law, or that it should have anticipated such illegal use as probable.

Appellants’ second contention under their point No. one is that the automobile was defectively made in that the accelerator would “stick” when wide open instead of coming back to its proper position when pressure was released on the accelerator pedal. Appellants claim that in this regard they made out a case against General Motors Corporation with independent evidence. In support of this contention appellants point to the testimony of Mrs. Hudnall that she did not “freeze” on the accelerator pedal, the testimony of another witness that the motor did not throttle down after it jumped the curb, but stayed at a steady grind and roar, and the testimony of Doyle, the automotive expert, who in response to a hypothetical question gave his opinion that if Mrs. Hudnall did not “freeze” onto the accelerator pedal with her foot, but if the pedal was tramped on or jiggled the accelerator would not have remained stuck and the motor would not have made a continuous roar.

Again we find ourselves unable to agree with appellants. Mrs. Hudnall was an interested witness and her testimony, though uncontradicted, did no more than raise a fact issue. We must presume that the trial court found all fact issues in such a way as to support the judgment. If the court disbelieved Mrs. Hudnall’s testimony, there was no evidence that she did or did not “freeze” onto the accelerator pedal with her foot. In such case there was no basis for the hypothetical question on which the automotive expert based his opinion. The testimony is that the car was given a pre-delivery inspection by the Smith Chevrolet Company of Rusk, Texas and nothing was found wrong with it. There is also testimony of the automobile mechanic Selph that he tested the accelerator linkage after the accident and inspected the accelerator and found nothing mechanically wrong. The court must have made an implied finding that the accelerator did not stick as a result of any defect or malfunction in its manufacture, and we are bound by said implied finding. James v. Drye, 159 Tex. 321, 320 S.W.2d 319.

Appellants’ first point on appeal is overruled.

In connection with their second point appellants take the position that they have proved a cause of action against the Lanes by showing that Mrs. Lane left the car unattended without cutting the motor off, against Mrs. Hudnall by showing that she negligently stepped on the accelerator in attempting to make an exit from the car, and against Smith by showing that he sold the Lanes a car designed to permit removal of the ignition key without cutting the motor off, and the accelerator and the linkage in such condition that it would stick or hang in open position. They further take the position that the above named parties are necessary parties to this suit as required in order to bring the case within the terms of Subdivision 29a of Art. 1995, VACS. They also take the position that General Motors is a foreign corporation with an agent and office in Dallas County, Texas, therefore the case comes within the terms of Subdivisions 23 and 27 of the Statute.

In support of their contention that the Rusk County defendants are necessary parties to this action appellants cite us to Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758 and Hill v. Melton, Tex.Civ.App., 311 S.W.2d 496, decided by this Court.

In our opinion in the latter case, of which opinion the present writer was the .author, though we reversed the judgment ■on other grounds, we did hold that where two defendants were sued as joint tort-feasors and the suit was maintainable ■where one defendant resided, the other defendant was a necessary party to the suit under Subdivision 29a, Art. 1995, VACS. We cited the Ladner case by our Supreme ■Court as authority for our holding. In the .Ladner case the Supreme Court said:

“Where the plaintiff, if he recovers, ■will be entitled to a joint judgment .•against two defendants * * * the ■other defendant is a necessary party ■within the meaning of Subdivision 29a.”

Upon reconsideration we have concluded that we gave the statement in the Lad-ner case too broad an interpretation and to that extent we were in error in our holding in Hill v. Melton, supra. In the Lad-ner case the Supreme Court was considering the question of contractual liability, •not the liability of joint tort-feasors. This is true also of the two cases cited by the Supreme Court in support of its holding .as above quoted.

There has not been a unanimity of holdings by our appellate courts in construing Subdivision 29a of Art. 1995, VACS. In First National Bank in Dallas v. Pierce (Comm.App. op. adopted) 123 Tex. 186, 69 S.W.2d 756 it was said that “necessary ■parties” is used in the new exception in the ■strict sense of the term as embracing “only those persons without whose presence before the court no adjudication of any of the subject matter involved in the litigation, ■can be had.”

But in Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, our Supreme Court said that the rule announced in First National Bank in Dallas v. Pierce, supra, “was too restrictive, and is not now followed by this Court”. The correct rule was said to be that the “other defendant is a necessary party within the meaning of Section 29a if the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly suable in that county can be obtained only in a suit to which both defendants are parties.” The opinion cited Pioneer Building and Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284; Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900.

The rule stated in the Union Bus Lines case, supra, has since been followed in many cases; but the rule there stated is itself susceptible to differing interpretations, as will be seen by a study of appellate opinions on the subj ect.

We have concluded that under the facts of the present case appellants, if they recover, can obtain the full relief to which they are entitled without joining the Rusk County defendants, therefore said defendants, appellees here, are not necessary parties within the terms of Subdivision 29a, Art. 1995, VACS. Lewis Boggus Motors, Inc. v. Hill, Tex.Civ.App., 340 S.W.2d 957; Liles v. Winters Ind. School District, Tex.Civ.App., 326 S.W.2d 182; Coleman County Tel. Co-op. Inc. v. Cunningham, Tex.Civ.App., 318 S.W.2d 461; Jaques Power Saw Co. v. Womble, Tex.Civ.App., 207 S.W.2d 206; Rogers v. Ft. Worth Poultry & Egg Co., Tex.Civ. App., 185 S.W.2d 165; Roberson v. Hunt, Tex.Civ.App., 179 S.W.2d 315; Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900. Appellants’ second point on appeal is overruled.

Appellants’ sixth point complains of the exclusion of certain evidence. Mrs. Lane in her deposition testified that after the accident the car was repaired by Smith Chevrolet Company. She had insisted that a new carburetor be put in. When Mr. Harrington brought the car back to Mrs. Lane, Mr. Harrington told her that a new carburetor had been put in. Objection was made in behalf of Smith to this testimony-on the grounds that such testimony was hearsay, that Mrs. Lane is not an expert and that the answers werfe an opinion and conclusion on her part. The objection was sustained.

Appellants say that the testimony should have been admitted on the ground that admissions of an agent are admission of his principal.

We see no error in the court’s ruling. Mrs. Lane herself testified that a new carburetor was put in at her insistence. This certainly does not convict Smith Chevrolet Company of selling and delivering a car with a defective carburetor. The testimony of Doyle, the automotive expert, had to do mainly with the linkage system, not the carburetor itself.

In any event the error, if it was error, was harmless, and under Rule 434, Texas Rules Civil Procedure, does not furnish a basis for us to reverse the judgment sustaining the pleas of privilege. Appellants’ sixth point is overruled.

The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Claudie A. HAM, Appellant, v. Ernest E. CAVETTE et ux., Appellees.
    No. 13923.
    Court of Civil Appeals of Texas. Houston.
    May 10, 1962.
    Rehearing Denied May 31, 1962.

      Tom S. Williams, Houston, for appellant.
    Levy & Levy, Richard D. Davis, Galveston, for appellees.
   WERLEIN, Justice.

This suit was brought by appellant against appellees to set aside an order of the District Court of Galveston County entered December 5, 1958 in Cause No. 90,-349 awarding temporary custody of appellant’s children to appellees, Ernest E. Ca-vette and Elizabeth Cavette, the maternal step-grandfather and maternal grandmother of said minors, and to obtain full custody of such children.

Appellant asserts that the trial court abused his discretion and committed reversible error in awarding the custody, care and control of his minor children to ap-pellees and not to him. In trying to determine whether there was an abuse of discretion by the trial court, we have carefully considered the entire record, which is quite voluminous. It would serve no useful purpose to set out more than a few salient facts.

Appellant and his first wife, Karlita, the daughter of Elizabeth Cavette, were married June 7, 1951 and divorced July 23, 1957. Custody of their two children; Kathy, who was born November 1, 1953, and Claudie Allin, Jr., who was born November 30, 1954, was awarded to Karlita. After the divorce Karlita married one Tom McKenzie. She died several months later, on March 17, 1958. Appellant married one Betty Carroll on October 6, 1957, and on April 3, 1958 appellant filed his original petition in said Cause No. 90,349 to obtain custody of said minors. On December 5, 1958 the District Court of Galveston County awarded temporary custody of the minors to the Cavettes. No further action was taken in that cause. On December 18, 1959 the present suit, Cause No. 93,721 in the District Court of Galveston County, was filed by appellant and on August 14, 1961 judgment was entered therein giving custody of the children to ap-pellees.

Admittedly appellant, prior to being divorced by Karlita, lived at times a wild and dissolute life, associating with gamblers and prostitutes, entertaining in night clubs and beer joints in many places, and working only periodically without any steady employment for any length of time, except for several years as an entertainer at the Imperial Club in Galveston. Appellant admitted at the trial in June 1958 that he had been arrested on certain charges involving morals but had not been prosecuted or convicted. He admitted other derelictions and improper conduct but asserted that he was converted a week before such trial and his religion known as Jehovah’s Witnesses would not permit him to return to the entertainment field, and that although he had previously believed what such sect taught, it was only a week before the trial that he had been immersed and had changed his manner of life. He didn’t gamble, smoke or drink.

Appellant testified that during all the period after the children were born until the time he and his wife separated on May 4, 1957, the children spent approximately one-third of the time with the Cavettes. The children have remained in the custody of the Cavettes continuously from the time their mother died in March, 1958 down to the present time.

The evidence shows that since March of 1958 appellees have been offered and given by appellant only $40.00 and a few articles of clothing towards the support of the children. At the time of the trial in June, 1958 appellant had been working for the Department of Agriculture, Soil Conservation, approximately two months and was making about $200.00 per month. Such employment would probably continue five or six months each year. He also did some commercial fishing and farming with his father. He testified that in the year 1958 he and his second wife earned approximately- $1,043.40 and in the year 1959 their combined earnings amounted to $1,954.95. He testified at the trial of the present case in September, 1960 that he was then making approximately the same weekly wage that he was making in June, 1958, and that he was still in debt approximately in the same amount of $1500.00 that he owed in 1958, and in addition he owed some $1,004.-50 to John Sealy Hospital. At the time of the trial of the instant suit he had a cottage with two bedrooms instead of one bedroom as in 1958. He paid $50.00 per month rent for such cottage and his average monthly food bill for himself and wife was about $30.00 per month. They ate vegetables from his father’s farm.

The order of the court entered December 5, 1958 permitted appellant to visit the children in Galveston each Sunday from 1:30 p. m. to 6 p. m. While there is a conflict in the evidence, there is much testimony to the effect that when the children returned from such visits with their father, they were highly nervous and upset, had nightmares and frequently vomited. The testimony also indicates that the children did not want to go with their father and preferred staying home with the Cavettes. Mr. Cavette was making some $6,000.00 per year, -and Mrs. Cavette was also earning money. They had a maid to look after the children when both were at work. The children had been baptized in the Catholic church in accordance with the desire of their mother expressed shortly before her death, and at the time of the trial Kathy was in the first grade and Claudie in kindergarten at Sacred Heart School. The Cavettes denied that they were doing anything to alienate the affections of the children for their father, although Mrs. Cavette admitted that at one time she had told the children that their mother’s death was caused from the treatment their father gave her.

The testimony of Mrs. Lockley, speaking for herself, and also for Mrs. Braud, both with the State Department of Public Welfare, was to the effect that the children were not ready for the gruesome explanations of life apparently expounded by their father during the times that he had them with him, and she recommended that the children be left with their grandmother, with the right of reasonable and controlled visitation by the father in the grandmother’s home, at least until the end of the school term and then that they be permitted to spend the summer with their father with the grandmother having the right to see them. The court postponed entering final judgment until August 14, 1961, at which time he entered his order giving the custody of the children to ap-pellees and giving appellant the right to visit the children the last Sunday of each month from 1:30 p. m. to 6 p. m. in Galveston, with the exception of August, and to have the children for a two weeks period with him at his home in Bay City, lasting from the first Sunday in August of each year to and including the third Sunday in August of each year.

There is much testimony to the effect that the Cavettes are suitable and proper persons to have custody of the children, that they are financially capable of taking care of them and rearing them in a proper manner, and that their home is a suitable one in which to rear such children. There is also much testimony to the ef-feet that the visitations of the children with their father resulted in their becoming highly nervous and manifesting ill effects, and that the father possessed no ■financial security more than he had at the time of the trial in June, 1958. The testimony is conflicting in many respects but there is ample testimony to support the court’s judgment in which he found that “Conditions surrounding the parties have not so materially altered or changed so as to require a change of custody.” The trial court also found and decreed, “It is in the best interest of said minors that their care, ■custody and control he continued and vested in Defendants and not vested in Plaintiff.”

It is appellant’s contention that since the court did not expressly find that appellant was an unfit person to have the custody and control of said children, he is entitled to their custody as a matter of law since he is their father and natural guardian. Appellant relies on cases such as Binion v. Mathis, Tex.Civ.App., 171 S.W.2d 512; State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, and Castro v. Castellanos, Tex.Com.App., 294 S.W. 525, holding that there is a presumption that the best interest of the child will be subserved by permitting the surviving parent to have custody of such child.

In Taylor v. Taylor, Tex.Civ.App., 42 S.W.2d 455, the court, through Justice Alexander, stated:

“The presumption is that the best interest of the children will be sub-served by awarding them to the natural parent, but this is a rebuttable presumption, and it is not necessary that the respondents prove that the natural parent is disqualified by immorality or misfortune. Dunn v. Jackson (Tex. Com.App.), 231 S.W. 351.”

Since no express findings and conclusions of law were filed by the court, we are required to review the evidence in the light most favorable to appellees, the prevailing parties. Silva v. Aranda, Tex.Civ.App., 223 S.W.2d 332. In so doing we have concluded that there is in the record evidence sufficient to rebut such presumption and to support the court’s findings expressed in his decree that it is in the best interest of said minors that their custody be continued and vested in appel-lees and not in appellant. The following statement in the opinion of Justice Norvell in Silva v. Aranda, supra, is applicable to the instant case:

“The record discloses that the credibility of witnesses was involved and the statement made by Chief Justice Pitts of the Amarillo Court of Civil Appeals in Thompson v. Haney, 191 S.W.2d 491, 493, is applicable here, viz.: ‘Under our system * * * the question of a minor child’s custody in such cases is addressed to the sound discretion of the trial court, who faces the parties and the witnesses, observes their demeanors and personalities, and feels the forces, powers and influences that cannot be discerned by merely reading the record. He is therefore in a better position to analyze the facts, weigh the virtues of the parties, and determine what will be for the best interests of the minor child. We must assume from the record in this case that the trial judge was endeavoring under the well-established rules of law to award the child to the person best fitted to care for it. It is a well-established rule of law that the judgment of the trial court in such a case will not be disturbed on appeal unless the award is so contrary to the great preponderance of the evidence as to show an abuse of discretion.’ ”

See Valentine v. Valentine, Tex.Civ.App. 1947, 203 S.W.2d 693, 696, where it is stated: “The trial court must look, in the light of all the circumstances, to the best interest of the child.”

The present case was brought to change the custody of the children from appellees to appellant. Under the order of the court, entered in Cause No. 90,349, giving temporary custody of the children to the maternal grandmother and maternal step-grandfather, the children have continued in the custody of appellees and have spent most of their lives in such custody. Prior to their mother’s death they had spent approximately one-third of their time with appellees. During such time and the following years strong bonds of affection have existed and still exist between them and appellees, and a relationship has been established to which their lives have been adjusted. It is apparent from the record that the trial court gave the case very conscientious and careful consideration in arriving at the conclusion that it was for the best interest of the children that their custody remain with their maternal grandmother and her husband.

Although the order of the court entered December 5, 1958 gave only temporary custody of the children to the maternal grandmother and maternal step-grandfather, we think the case of Taylor v. Meek, 1955, 154 Tex. 305, 276 S.W.2d 787, is persuasive in the instant case, which is a suit to change the custody of the children. In that case, as in this suit, the father attacked the trial court’s finding that it was to the best interest of the child to remain with the grandparents. The court stated: “The point is not well taken unless the law gives the father custody where there is no finding that he is not a fit person, because in this record there is evidence which does support the trial court.”

It cannot now be questioned that at the time of the court’s order of December 5, 1958 in the former suit, it was to the best interest of the children that they be not removed from the custody of the maternal grandparents. Since a change of custody disrupts the child’s living arrangements and the channels of a child’s affection, a change should be ordered only when the trial court is convinced that the change is to be a positive improvement for the child. Taylor v. Meek, supra. In our opinion the trial court in the present suit did not abuse his discretion in determining that it was in the best interest of said minors that their custody be continued and vested in appellees.

Judgment affirmed.


author: RICHARDS, Justice.

text:
    Katie B. MASON, Individually and as Independent Executrix and Trustee of the Estate of H. B. Mason, Deceased, Appellant, v. Hubert B. MASON, Jr., Appellee.
    No. 10964.
    Court of Civil Appeals of Texas. Austin.
    May 16, 1962.
    Rehearing Denied May 30, 1962.

      Cox, Brown & Daniel, Temple, for appellant.
    Richey, Sheehy, Teeling & Cureton, Waco, Taylor & Taylor, Temple, for ap-pellee.
   RICHARDS, Justice.

This is an appeal from a judgment of the 146th Judicial District Court of Bell County setting aside an order of the County ' Court of Bell County admitting to probate the will of H. B. Mason, deceased, and declaring such instrument to be a nullity.

On March 19, 1957, H. B. Mason died at Temple, Texas, leaving a last will which was admitted to probate in the County Court of Bell County, Texas on April 8, 1957. Following the probate of the will and the appointment of appellant Katie B. Mason, as independent executrix and trustee of the estate of the decedent, H. M. Mason, Jr., appellee, instituted separate proceedings in the County Court of Bell County, under the provisions of Sec. 93, Texas Probate Code, Vernon’s Civil Statutes, to contest the will. On March 28, 1960 a hearing on the contest was had by the County-Judge, sitting in probate, without the aid of a jury, and judgment was rendered by the Court denying the contest, from which judgment the contestant H. B. Mason, Jr. perfected his appeal to the District Court of Bell County.

On May 22, 1961 the appeal was tried de novo in the 146th District Court of Bell County with a jury. The only special issue submitted was whether at the time the decedent executed the instrument in question he was acting under the undue influence of appellant, to which the jury answered “Yes”. Appellant having filed a motion to disregard the jury finding on the special issue and motion for judgment non obstante veredicto, both of which were overruled, the Trial Court entered judgment denying probate of the will of the deceased, declaring it to be a nullity and not the will of the deceased, and vacated the order admitting the will to probate including that portion of the order appointing appellant independent executrix of the estate of the deceased under the terms of the instrument. Appellant filed her motion for a new trial, which was overruled and has perfected this appeal.

At the death of H. B. Mason he was survived by one son, H. B. Mason, Jr., appel-lee, his child by a prior marriage, a grandson, Richard Gregg Mason, a minor, the son of appellee, and Mrs. Katie B. Mason, appellant, his second wife. There was no issue born of his marriage with Mrs. Katie B. Mason, the latter however having a son, Billy Burton Ozier, the issue of her first marriage, who is the father of Michael Mason Ozier and Gary Pearson Ozier, minors, and a third child Mark Ozier who was born after the testator’s death.

Under the testator’s will appellee was to receive the income from a life estate in an undivided one-half interest in certain business property located in Temple, Texas, which had been the homestead of the testator during his first marriage, the remaining one-half undivided interest in the property having passed to appellee upon the death of his mother. Upon the death of appellee his life estate in the one-half interest in the business property was to vest in Mrs. Katie B. Mason as trustee for the benefit of Richard Gregg Mason and Michael Mason Ozier and Gary Pearson Ozier per stirpes subject to the terms and conditions of the trust. Appellee’s life estate in the property was not subject to sale, mortgage or other alienation.

Appellant received the family homestead and family automobile outright, together with a one-half interest in fee simple in any separate property owned by the testator at the time of his death. Appellant also received a life estate in all of the property both separate and community owned by the testator at the time of his death, subject to the life estate in the property specifically devised to appellee.

Appellant was appointed independent executrix and trustee of the estate with full power to manage, mortgage, pledge, sell and dispose of any of his estate during the life of the trust provided that the proceeds of such disposition should be reinvested by her and form a part of the estate. The will also provided that in the event of the resignation, incapacity or death of appellant, the Temple National Bank was to be substituted as independent executor and trustee-with all of the powers and,duties conferred upon appellant.

After the death of appellee and the death or incapacity of appellant, the Temple National Bank as trustee was to use one-half of the income from or the corpus of the estate for the support and education of the children of appellee and one-half for the-children of Billy Burton Ozier during their minority and as each child became twenty-one years of age the trustee was to deliver to such child its share of the estate to beheld by such child in fee simple, it being the intention of the testator that the corpus, of the estate should pass to the children of appellee and Billy Burton Ozier per stirpes' and not per capita. There was a further proviso that if the net income from the life estate to appellant should be insufficient for her maintenance in the same circumstances to which she was accustomed during the-lifetime of decedent, then appellee could use not to exceed 4 per cent of the corpus-, of the estate in any one year during the continuance of such condition, which right would terminate upon the cessation of the condition requiring the use of the corpus, of the estate over and above the net income-to be received by appellant under her life estate.

Appellant bases her appeal upon 20 assignments of error, which are argued under four groups. The first four assignments of error are directed to the jury’s finding in answer to the special issue upon the grounds. (1) that there was no evidence to support the jury finding or (2) that there was insufficient evidence to support such finding or (3) that the finding is against the great weight and preponderance of the evidence. The Sth and 6th assignments of error are based upon error of the Trial Court in admitting in evidence the inventory, appraisement and list of claims filed in Cause No. 5573, The Estate of H. B. Mason, deceased, in the County Court of Bell County, and the inheritance tax appraisement filed in connection with the same proceedings.

The 7th, 8th, 9th, 10th, 11th, 12th and 13th assignments of error are directed to the error of the Trial Court in permitting counsel for appellee to make inflammatory and prejudicial statements in their arguments to the jury and the 14th, 15th, 16th, 17th, 18th, 19th and 20th assignments of error complain of alleged misconduct of the jury in arriving at their finding in answer to the special issue.

At the outset we are confronted with the question of whether the failure of the contestant (appellee) to make all of the persons named in the will parties defendant in the proceedings instituted under the provisions of Sec. 93, Texas Probate Code, in the County Court of Bell County in Cause No. 5944, does not constitute such fundamental error as to necessitate the reversal of the judgment of the District Court setting aside the will and the remand of this cause to the District Court of Bell County, for the purpose of causing all persons named in the will to be impleaded as neces-ary and indispensable parties defendant, In re Ramon’s Estate, Tex.Com.App., 42 S.W.2d 1010, and a new trial.

In an action brought to set aside the probate of a will under the provisions of Sec. 93, Texas Probate Code (Art. 5534, Vernon’s Ann.Civ.St.), all persons named in the will are necessary parties. Buchanan v. Davis, Tex.Civ.App., 300 S.W. 985, 988, aff. Tex.Com.App., 12 S.W.2d 978, 980; Moody v. Moody National Bank of Galveston, Tex.Civ.App., 302 S.W.2d 695, 698, no writ history; Bevill v. Rosenfield, Tex.Civ.App., 113 S.W.2d 340, 342, error dism.; 32 Tex.Jur. “Parties”, Secs. 9 and 11. The absence of necessary or indispensable parties constitutes fundamental error which may be raised for the first time on appeal. Love v. Moore, Tex.Civ. App., 344 S.W.2d 466, no writ history; Barmore v. Darragh, Tex.Civ.App., 227 S.W. 522, no writ history.

It appears from both the judgment of the County Court of Bell County in Cause No. 5944, the original proceedings contesting the will, as well as from the pleadings filed in the instant case on appeal in the District Court of Bell County, that the only parties to the proceedings in the will contest were appellee as plaintiff and appellant, individually and as the independent executrix of the contested will as defendant. The record is devoid of any showing that the ultimate devisees and legatees of the estate of the decedent named in his will, namely the minors, Richard Gregg Mason, Michael Mason Ozier and Gary Pearson Ozier, were made parties defendant either at the time of the institution of the proceedings under Sec. 93, Texas Probate Code, in the County Court or upon appeal in the District Court of Bell County. Each of the minor children named in the will are persons whose interests will necessarily be affected by any decree that may be rendered and therefore are necessary or indispensable parties. Summerlin v. Reeves, 29 Tex. 85, 86, 88; Cook v. Pollard, 70 Tex. 723, 8 S.W. 512; Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, 477, and no judgment or decree should be rendered by a Court when it is apparent that all necessary and indispensable parties are not before it. Barmore v. Darrach, Tex.Civ.App., supra; Merritt v. Ryno, Tex. Civ.App., 268 S.W.2d 546, 547, no writ history.

Neither appellant nor appellee has assigned as error the failure to implead all of the persons named in the will of decedent who were necessary and indispensable parties to the contest proceedings. However, where the record affirmatively and conclusively shows that the Court was without power to render the judgment because all necessary and indispensable parties were not before it, as is the case here, it is the duty of this Court to consider and act upon the fundamental error disclosed by the transcript of the record. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 983; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266.

If the judgment of the Trial Court setting aside the probate of the will of H. B. Mason, Sr. and declaring it to be a nullity should be affirmed, one-half of the community estate and all of the separate estate of the decedent, which, as shown by the inventory and appraisement filed by the appellant in the probate proceedings in the County Court is valued at over $300,000.00, would immediately vest in appellee H. B. Mason, Jr., although it was the clear intention of the decedent as shown in his will that his grandson, Richard Gregg Mason, and any other children of appellee would ultimately receive one-half of his entire estate and the children of Billy Burton Ozier, the son of appel- • lant, would receive the remaining one-half of the estate. Therefore, it is manifest that the rights of appellee’s children under the will as well as the rights of the children of Billy Burton Ozier under the will are in direct conflict with the interest of and rights in the estate which appel-.lee would receive if the probate of the will was set aside and the instrument declared to be a nullity. In such event the grandchildren of appellant and the children of appellee would receive nothing from the testator.

To deprive the ultimate beneficiaries of their rights to be represented by attorneys ad litem in the will contest proceedings instituted by appellee under Sec. 93, Texas Probate Code, where their interests in upholding the validity of the will are clearly antagonistic to and in direct conflict with the interest of appellee in striking it down, in our opinion would be contrary to all .principles of justice and equity. Compare: Parr v. Parr, Tex.Civ.App., 207 S.W.2d 187, error ref., N.R.E.

After this cause had been submitted and argued, the Court requested counsel for appellant and appellee to furnish authorities for the purpose of demonstrating why the ultimate devisees and legatees of the decedent’s will, the minors above referred to, were not necessary and indispensable parties to the will contest proceedings in .the County Court of Bell County and upon appeal in the District Court of Bell County. Pursuant to such request both parties have filed supplemental briefs asserting in general that appellant in her capacity as independent executrix and trustee under the will was the only necessary party defendant and although all persons named in the will might have been proper parties, they were not necessary or indispensable parties thereto. .

In support of this contention, the case of Allardyce v. Hambleton, Tex.Civ.App., 68 S.W. 834, rev. on other grounds, 96 Tex. 30, 70 S.W. 76, is cited. This was a suit to annul certain provisions of a duly probated will brought under the predecessors of Arts. 3433, 3434 and 3435, in which the Court stated:

“In proceedings under the provisions of the statutes invoked by appellant’s counsel, the Executor or Ad-minstrator with the will annexed is the only party required to be cited to answer the application of the plaintiff. Art. 1993. (Art. 3434). No provision is made for making any other person a party defendant.” (Parenthetical matter supplied.)

The next case cited is Kramer v. Sommers, Tex.Civ.App., 93 S.W.2d 460, 465, error dism., a suit for the construction of a will, wherein the Court stated:

“The application filed in the county court was expressly authorized by the provisions of articles 3433, 3434, and 3435, and in article 3434 the executor or administrator is the only person named upon whom citation must be served. That was a special statutory procedure in which the executor was made the legal representative of all persons interested in the estate. * ⅜ And the proceeding being statutory, there is no basis for application of the common-law rule that all persons whose interests are to be affected must be made parties to the suit. It is therefore clear that there was no lack of necessary parties.”

Also cited are Cheeseborough v. Corbett, Tex.Civ.App., 155 S.W.2d 942, error ref. w. m., and Hunt v. Carroll, Tex.Civ.App., 157 S.W.2d 429, error dism., 140 Tex. 424, 168 S.W.2d 238, both cases citing Kramer v. Sommers, supra, and the latter Bevill v. Rosenfield, supra.

In Bevill v. Rosenfield, which was a suit to set aside an order of the Probate Court appointing an attorney to represent a decedent’s estate, the Court stated:

“Notwithstanding the recitals in the order of a necessity for such appointment, by reason of a contest of said will, we find under the pertinent statutes relating to a will contest that the executor or administrator is the only necessary adverse party to this particular action, all interested persons being represented through such statutory official. See Kramer v. Sommers, Tex.Civ.App., 93 S.W.2d 460, 465, which was a suit to void a will already probated.”

After quoting from the opinion in Kramer v. Sommers, the Court then stated:

“The contests in the original probate cause No. 15994 appear to have proceeded under the provisions of article 3433 et seq., R.S., as in the Kramer Case, supra. Yet, if article 5534 be invoked, where all persons named in the will are necessary parties to an action to set aside its probate, Buchanan v. Davis, Tex.Civ.App., 300 S.W. 985, appellant could not be brought into the case without his consent in the manner indicated in his pleadings.”

Prior to the adoption of the Texas Probate Code, effective January 1, 1956, the statutory provisions governing will contests were Arts. 3433, 3434 and 3435, Vernon’s Ann.Civ.St., Ch. 12, Title 54, (Estates of Decedents), V.C.S., and Arts. 5534, 5535 and 5536, Title 91 (Limitation of Actions), V.C.S. Arts. 3433 and 3434 provided that where a proceeding to annul or suspend a will which had been probated was instituted, the Clerk of the Court ■should issue a citation to the executor or administrator to appear and answer. Upon the adoption of the Probate Code, Arts. 3433, 3434 and 3435 were repealed. The table showing where the provisions of the repealed articles are governed by corresponding sections of the Texas Probate Code states that the provisions of Art. 3433 correspond to Sec. 11, Vernon’s Ann. P.C.; Art. 3434 to Sec. 33, P.C.; and Art. 3⅜35 to Sec. 15, P.C.

All of the cases cited which involved proceedings instituted under Art. 3433 et seq. were brought after the probate of the will for the purpose of annulling or suspending objectionable provisions or directions in the will or for reviewing incidental probate orders and not for the purpose of contesting and setting aside the will as a whole as not having been executed in conformity with legal requirements. We have been unable to find a single case brought under the provisions of Art. 3433 et seq. for the purpose of setting aside the probate of an entire will as not having been executed in the manner required by law as in the instant case.

Cheeseborough v. Corbett, supra, also cited, was a will contest, but it was not brought under Arts. 3433 et seq. since the will had not been probated. It involved an appeal from an order of the Probate Court denying an application contesting the probate of a will offered for but not previously admitted to probate. On appeal to the District Court, the sole beneficiaries under the will intervened. In the District Court the will was denied probate. From this judgment only the executor, not the beneficiaries under the will, appealed. It is clear that all persons interested in a decedent’s estate are parties to a proceeding brought to probate a will. This is so because such proceedings are in rem. It necessarily follows that all such persons are before the Court in a continuation, such as an appeal or appeals, of such proceedings. The Cheeseborough case is, therefore distinguished for two reasons: (1) the beneficiaries under the will intervened in the District Court, (2) they were parties to the continuance on appeal of the proceedings brought to probate the will.

In his brief appellee contends that although Sec. 33 of the Probate Code, which reads as follows:

(a) “When Citation or Notice Necessary. No person need be cited or otherwise given notice except in situations in which this Code expressly provides for citation or the giving of notice; provided, however, that even though this Code does not expressly provide for citation, or the issuance or return of notice of any probate matter, the court may, in its discretion, require that notice be given, and prescribe the form and manner of service and return thereof.”

does not specifically provide for service of citation upon the executor or administrator in will contest proceedings brought under Sec. 93, Probate Code, it is understandable that the Legislature omitted such specific provision from Secs. 11 and 93 considering that it was entirely covered and included in Sec. 33. Appellee bases this contention upon the theory that since the decisions above cited had been uniform and without conflict for nearly sixty years in holding that the executor or administrator with the will annexed was the only necessary party in a will contest, these decisions were based on rules independent of the statutes although the requirement that the provision for the issuance of citation to the executor or administrator had some persuasive effect.

With this contention we are unable to agree. Although Sec. 93, Probate Code, does not specifically designate who should be named as parties defendant in a suit to contest the validity of a will, which had been admitted to probate, nevertheless if the provisions of Sec. 33 are applicable and it is unnecessary to serve citation upon any designated person as defendant in such proceedings, Sec. 33 would be unconstitutional and void under the provisions of the due process clauses in the Fourth and Fifth Amendments of the Constitution of the United States and Sec. 19, Art. 1, Constitution of Texas, Vernon’s Ann.St., since no notice or hearing would be afforded to persons interested in the outcome of such proceedings. Under such construction it would be possible for a person who was desirous of contesting the validity of a will which had been admitted to probate to wait until one year and 364 days had elapsed from the date the will was probated and then file in the proceedings in the County Court a suit to contest the validity of such will without giving notice by citation or otherwise to the persons named in the will and have a judgment by default rendered on the last day permitted by the limitation period. Such a procedure would be in violation of the constitutional provisions above referred to.

It is our opinion that the failure of ap-pellee to make all of the persons named in the will parties defendant in the will contest proceedings instituted under the provisions of Sec. 93, Texas Probate Code, constitutes fundamental error.

The judgment of the 146th Judicial District Court of Bell County setting aside the probate of the will of H. B. Mason, deceased, and vacating the order admitting the will to probate is reversed and the cause remanded with instructions to im-plead and serve citations upon the minors Richard Gregg Mason, Michael Mason Ozier, Gary Pearson Ozier and Mark. Ozier as parties defendant and appoint guardians or attorneys ad litem to represent each or all of such minors to protect their respective interests and after service of citation has been had and the orders appointing the guardian or attorneys ad litem for such minor defendants entered, for a new trial of the issues involved.

In view of the foregoing disposition of this appeal, it is unnecessary to pass upon the twenty assignments of error urged by appellant or the sixteen cross points of error urged by appellee. The costs of this appeal are assessed against the appellee.

Reversed and remanded with instructions.