author: SHARPE, Justice.

text:
    SOUTHERN PACIFIC COMPANY, Appellant, v. Charles C. ALEX, Appellee.
    No. 256.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 26, 1967.

      Bell, Gwin & Furse, by Austen H. Furse, Bay City, for appellant.
    Christensen, Davis & Stephenson, by Alex Guevara, Jr., Houston, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from a judgment rendered after jury trial that appellee, plaintiff below, recover $690.00 from appellant, defendant below, because of damages sustained to appellee’s automobile when it collided with the engine of appellant’s train in Bay City, Texas on April 11, 1961,

We have concluded that appellant’s points 11 and 12 which assert that the trial court erred in overruling appellant’s motion for directed verdict and in overruling appellant’s motion to disregard findings and for judgment non obstante veredicto should be sustained.

The verdict of the jury in response to sixteen special issues was in substance as follows: (1) appellant failed to keep a proper lookout, (2) which was a proximate cause of the damages; (3) appellant’s train did not emit a timely signal calculated to warn persons about to use the crossing in question, (3A) which was negligence, and (4) a proximate cause of the damages. The jury refused to find that appellee failed to keep a proper lookout (Issue 5), and did not answer the conditionally submitted issue of proximate cause (Issue 6). The jury also found that appellee failed to apply his brakes in time to avoid the collision (Issue 7), but that this was not negligence (Issue 8), and the conditionally submitted issue on proximate cause was not answered (Issue 9). In answer to special issue 10, the jury found that ap-pellee failed to stop his vehicle within 50 feet of, but not less than 15 feet from the nearest rail of appellant’s railroad though the train was plainly visible and in hazardous proximity to the crossing, but thát such failure was not negligence (Issue 11), and the conditionally submitted issue 12 concerning proximate cause was not answered. The jury refused to find that appellee was operating his vehicle at an excessive speed (Issue 13), and the conditionally submitted issue 14 on proximate cause was not answered. In answer to issue 15 the jury found that the collision was not the result of an unavoidable accident, and in answer to issue 16 that appellee’s damages amounted to $690.00.

Appellee testified in substance as follows: On April 11, 1961, between 9 and 10 o’clock in the morning he was driving his automobile in a northerly direction on Avenue I in Bay City, Texas. There was a drizzling rain and the street was wet and slick. Appellant’s train was traveling from east to west and approached Avenue I from appellee’s right going toward his left. There was a house, some shrubs and a tree to appellee’s right on the east side of Avenue I. Appellee saw the nose of a diesel engine as it came around the edge of the house or tree on the right and heard a whistle at the same time. That was the first time he heard any sound from the engine. Appellee applied his brakes and attempted to turn to the right — toward the direction from which the train was coming. The brakes held but the tires slid on the pavement and the left front fender of appellee’s car collided with the engine at about its front wheel. Appellee’s car was not on the railroad track prior to or at the time of the collision. Appellee frequently travelled Avenue I, was familiar with the crossing in question and had seen trains using it. On cross-examination appellee identified four photographs of the crossing which appellant then offered in evidence. These photographs showed the general layout of the crossing and surrounding objects. Two of them showed a standard railroad cross-buck sign on the West side of Avenue I, which appellee said was located there at the time of the accident. Appellee testified that the railroad track is elevated with reference to the rest of the street and the hedges or shrubs to the right. The hedges on the right were at least six feet high and the train was higher, perhaps as much as fifteen feet.

With reference to the distances involved, appellee on direct examination said that at the time he first saw the train and heard the whistle sound, his car was about forty to fifty feet from the track. On cross-examination, appellee first estimated such distance at “forty, fifty or sixty feet.” Later he testified several times that such distance could have been as much as eighty feet. On re-direct examination, appellee again testified that his car could have possibly been as much as eighty feet from the track when he saw the engine and heard the whistle, and finally answered a question propounded by his own counsel as follows:

“Q. Mr. Alex, as you approached this railroad track, and from Defendant’s Exhibits, we have shown that there was a tree and a house there, do you believe that you were fifty, sixty, or seventy or eighty feet from the intersection, from the crossing ?
“A. I still believe I was fifty or sixty feet, and it could’ve been a little more or a little less.”

With reference to the distance of the engine from Avenue I when appellee first saw it and heard the whistle, appellee on direct examination said the engine was about twenty or twenty-five feet away. On cross-examination, appellee estimated that the train was fifteen or twenty feet from the crossing at that time. Later, he said the train could have been more than forty feet from the crossing when he saw and heard it.

With reference to the speed of the car and the train, appellee testified that his car was traveling at thirty miles an hour before he saw the train, that he took his foot off the accelerator and “it decreased, not much in speed.” Appellee estimated the speed of the train at about fifteen miles per hour.

Appellee further testified that the right window of his car was up and the left, on the driver’s side, was part way down. He said he was not particularly looking for a train on the occasion in question. Ap-pellee further said that the whistle could have sounded prior to the time he heard it and saw the train. He would not say that the train did not whistle prior to that time. Appellee said that thirty miles per hour is the normal speed limit, and one should be able to drive at that rate even when ap-preaching the railroad crossing in question knowing that trains sometimes cross there; that one should allow a certain distance in which to stop for a railroad crossing that is known to be frequently used by trains on a day when the pavement is slick. Appellee said he knew he was supposed to stop within fifty feet and not less than fifteen feet from the rail when a train was plainly visible, but he did not stop on the occasion in question. Other evidence in the case was more unfavorable to appellee than his own testimony, but we disregard it in reaching our decision.

Article 6701d, Sec. 86(d), Vernon’s Ann. Civ.St., reads as follows:

“Sec. 86. Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad and shall not proceed until he can do so safely when:
“(d) An approaching train is plainly visible and is in hazardous proximity to such crossing.”

It thus appears that appellee’s own testimony established the following: (1) The train was approaching the crossing in question; (2) The train was “plainly visible” to appellee as he approached the statutory stopping area, or in any event just after he entered it and when his car was at least forty feet from the nearest rail; (3) The train was in “hazardous proximity” to the crossing when it became “plainly visible” to appellee; and (4) Ap-pellee failed to stop his car within the statutory stopping area of within fifty feet but not less than fifteen feet from the nearest rail. Under these conditions, appellee was under a duty to stop his car within the statutory stopping area. Article 6701d, Sec. 86(d), V.A.C.S.; Missouri-Kansas-Texas Railroad Company v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956); Williams v. Texas-New Mexico Railway Company, 334 S.W.2d 510 (Tex.Civ.App., El Paso, 1960, n.w.h.); Missouri Pacific Railroad Co. v. Burns, 382 S.W.2d 761, (Tex.Civ. App., Waco, 1964, n.w.h.). Appellee’s failure to so stop established that he violated the statute, constituting negligence per se. Such negligence as a matter of law was a proximate cause of the collision in question. The accident would not have happened if appellee had complied with the duty to stop his car under the conditions prescribed by the statute.

We are of the opinion that the evidence did not raise issues as to whether (1) appellee could not have stopped his automobile within the statutory stopping area by the exercise of ordinary care after appellant’s train became plainly visible and in hazardous proximity to the crossing, or (2) if appellee could not have so stopped, that his inability to do so was not caused by his own negligence. In this situation the trial court should have granted appellant’s motion for directed verdict at the close of all the evidence. However, even if such issues had been raised by the evidence they were neither submitted to the jury nor requested by appellant. Appellee, therefore, failed to carry his burden of establishing that this violation of the statute was legally excusable because of impossibility of complying with it. See Missouri-Kansas-Texas v. McFerrin, supra, and the Article “Special Issues Under Article 6701d, Section 86(d), of the Texas Civil Statutes” by Hon. Robert W. Calvert, then Associate Justice, now Chief Justice of the Supreme Court of Texas, 34 Texas Law Review 971 (1956). The trial court erred in failing to disregard the jury finding on special issue eleven and in refusing to render judgment in favor of appellant pursuant to motion filed by it.

Since appellant was entitled to judgment in any event, we deem it unnecessary to discuss appellant’s points one through ten.

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


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    ALPHA ENTERPRISES, INC., Appellant, v. The CITY OF HOUSTON et al., Appellees.
    No. 15016.
    Court of Civil Appeals of Texas. Houston.
    Jan. 26, 1967.
    Rehearing Denied Feb. 16, 1967.
    Charles A. Easterling and Presley E. Werlein, Jr., Houston, for appellant.
    Wm. A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, and Joseph G. Rollins, Senior Asst. City Atty., Houston, for appellees.
   COLEMAN, Justice.

By this suit appellant seeks to prevent appellees from enforcing that portion of the Fireworks Ordinance of the City of Houston, Texas, declaring “the presence of any fireworks within the jurisdiction of the City in violation of this Article is hereby declared to be a common and public nuisance. The Fire Marshal is directed and required to seize and cause to be safely destroyed any fireworks found within the jurisdiction in violation of this Article. * * * »

At a trial to the court without a jury, judgment was rendered denying the relief prayed for. No findings of fact or conclusions of law were requested and none were filed other than as reflected in the judgment.

The judgment recites that “the Court * * * is of the opinion that the City Council of the City of Houston, Texas, acted in good faith in enacting or passing the subj ect Ordinance Number 8941, and the said City Council did not act fraudulently, arbitrarily, unreasonably or capriciously in enacting or passing said Ordinance Number 8941, and that said subject Ordinance Number 8941, which prohibits the storage of fireworks in the City of Houston, Texas, is constitutional and valid, and that Plaintiff is not entitled to any injunctive relief herein, * *

Ordinance Number 8941 was not introduced into evidence. Only Sec. 15-66 of Art. IV. of the Code of Ordinances of the City of Houston is found in the statement of facts. As recited it declares the presence of fireworks within the City “in violation of this Article” to be a public nuisance and directs certain officials to seize and destroy fireworks found within the City “in violation of this Article.”

There is testimony that Ordinance 8941 was enacted by the City Council in 1953 and appellees state in their brief that Ordinance 8941 prohibits the storage of fireworks within the City. Appellant pled that the ordinance prohibited the storage of fireworks within the City. Since the case was tried on the theory that the storage of fireworks within the City was prohibited without exception, and since all parties have briefed the case on that basis, we accept as true the statements that the storage of all types of fireworks is absolutely forbidden by the terms of the Ordinance.

The question, then, is whether the City is authorized to declare that the presence of fireworks of any kind and in any quantity and for any length of time constitutes a nuisance wherever they may be located within the City because the storage of fireworks within the City has been made unlawful by Ordinance.

The City of Houston is a home rule city authorized by its charter to exercise all powers that have been or hereafter may be granted to municipalities by the Constitution or laws of Texas. Art. 1068(7), Vernon’s Ann.Civ.St., provides that the City Council shall have power to prohibit the keeping of buildings for the storing of gunpowder and other combustible, explosive or dangerous materials within the City. Section 6 of the same Article authorizes the City to prohibit the use of fireworks. Section 19, Article 1175, V.A.C.S., provides that each city shall have the power to define all nuisances and prohibit the same within the city and outside the city limits for a distance of 5,000 feet.

The ordinance under attack here was held valid in Treadgill v. State, 160 Tex.Cr.R. 658, 275 S.W.2d 658, 1954, where the Court said:

“It appears that it is now definitely settled by the courts of this and other jurisdictions that fireworks constitute such danger to the public health and safety as to constitute them a nuisance, and the sale thereof may be prohibited by municipalities in the exercise of their police power, [citing authorities]
“The conclusion is expressed that the legislature was authorized to confer upon the City of Houston the right to prohibit the maintenance of the nuisance beyond the city limits as a necessary attribute of the power, in the first instance, to prohibit nuisances dangerous to the public health and safety of the city.”

In Stoughton v. City of Fort Worth, 277 S.W.2d 150, Tex.Civ.App., Fort Worth 1955, n. w. h., the court upheld an ordinance of the City of Fort Worth declaring the presence of any fireworks within the jurisdiction of the City of Fort Worth in violation of the ordinance a nuisance. The Court said:

“Although it is only in clear cases that courts are warranted in going behind the findings of a legislative body that a certain thing is a nuisance and determining the contrary, nevertheless, a city cannot by ordinance make that a nuisance which is not one in fact. Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810; Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513; Stockwell v. State, 110 Tex. 550, 221 S.W. 932, 12 A.L.R. 1116; Murphy v. Wright, Tex.Civ.App., 115 S.W.2d 448; 20 R.C.L., p. 389, sec. 12. The controlling question, therefore, seems to be whether the transporting, storing, selling, and hauling of fireworks within 5,000 feet of appellee’s city limits constitute a public nuisance per se.
“Without doubting the power of a court to strike down a city council’s definition of a nuisance when the act or condition so denounced does not tend to be injurious to public good, we may not do so when the act or condition sought to be prevented is almost if not quite universally held to be inherently dangerous and to constitute a hazard to property and ‘a menace to the life, limb and health’.”

In Cannon v. City of Dallas, 263 S.W.2d 288, Tex.Civ.App., El Paso 1953, n. w. h., the Court upheld the validity of an ordinance prohibiting the possession, storage, transportation or use of fireworks of all kinds. The Court stated that it is common knowledge that the use of fireworks in crowded areas is dangerous to both life and property and upheld the trial court’s finding of fact that fireworks and firecrackers are inherently dangerous to life, limb, and property.

In Ex Parte Clark, 139 Tex.Cr.R. 385,140 S.W.2d 854, 1940, the Court upheld the validity of an ordinance of the City of Dallas, Texas, prohibiting the sale, offering for sale, or possession for the purpose of sale, of any combustible fireworks of any kind in said city as a legitimate exercise of the police power bearing a reasonable relation to the protection of the peace, lives, health and property of its inhabitants, and in particular protection from fire hazards.

Appellant points to the well established rule of law that neither a municipality nor the state may by legislation make that a nuisance which is not in fact a nuisance. Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810 (1923); Stockwell v. State, 110 Tex. 550, 221 S.W. 932 (1920).

In Trueheart v. Parker, 257 S.W. 640, Tex.Civ.App., San Antonio 1923, n. w. h., opinion by Chief Justice Fly, the Court said:

“A hall used for dancing is not a nuisance per se; yet, if accompanied with drunkenness, swearing, loud and boisterous language, or disorderly conduct, it may become a nuisance. Unless a dance hall is condemned by law, whether it is or is not a nuisance is a question of fact to be tried as any other fact by a jury. * * *
“A nuisance, broadly stated, is anything that works an injury, harm, or prejudice to an individual or the public. According to definitions formulated from numerous decisions, a nuisance will embrace everything that endangers life or health, offends the human senses, transgresses laws of decency, or obstructs, impairs, or destroys the reasonable, peaceful, and comfortable use of property. * * * Acts which are denounced as illegal by law, when the perpetration of them invade the rights of others will be nuisances per se, but other acts in their nature may not be nuisances but may become by their location, situation, surroundings, or the method in which the acts are given utterance, or the manner in which a business or performance is conducted. A thing which is at all times and under any set of circumstances a violation of the rights of others is a nuisance per se. In other cases certain facts might create a nuisance, but about which honest differences might exist. 20 R.C.L. §§ 1 to 6, inclusive.”

In sustaining the Ordinance of the City of Fort Worth declaring the presence of fireworks within the City a nuisance and declaring unlawful the using, storing, manufacturing, or transporting of fireworks of any description, Trueheart v. Parker, supra, was quoted with approval by the Ft. Worth Court of Civil Appeals in Stoughton v. City of Fort Worth, supra, and Parker v. City of Fort Worth, 281 SW.2d 721 (1955).

In City of Fort Worth v. Atlas Enterprises, 311 S.W.2d 922, Tex.Civ.App., Fort Worth 1958, ref., n. r. e., the same Court held that the transport of fireworks in interstate or intrastate commerce was not a nuisance in that there was no evidence that the prohibition of such activity would preserve the health, safety, comfort or welfare of any citizen of the City and upon the additional grounds that the part of the ordinance in question conflicted with certain general laws of the State of Texas and with the Commerce Clause of the United States Constitution, Art. 1, § 8, Cl. 3. In its opinion the Court said:

“There is no question about the authority to enact the ordinance falling within the police power. In so far as the ordinance operates as a legitimate exercise of the police power it is to be upheld. Such an ordinance can, ordinarily, absolutely prohibit a use which is a nuisance, for that is a legitimate object of the City’s jurisdiction in such respect. However, if it is not in fact a nuisance it cannot be effectively declared to be one by ordinance (see authorities cited in the case of Parker v. City of Fort Worth, supra) and the City’s authority in respect to it is limited to that of reasonable regulation to the extent of the requirements of necessity, for it cannot be prohibited.
“Upon the matter of the power of a municipal corporation to declare and define nuisances, it is noticed in McQuillin, Municipal Corporation, 3rd Ed., sec. 24.84, that classification of the subject matter may be made as follows: First, those which ⅛ their nature are nuisances per se, or are so denounced by the common law or by statute; second, those which in their nature are not nuisances but may become so by reason of their locality, surroundings, or the manner in which they may be conducted, managed, etc.; third, those which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds. Governing bodies of municipal corporations are entitled to denounce conclusively articles and acts falling within the first and third classifications, but as to those falling within the second classification the prevailing judicial view is that the power possessed is only to declare such of them to be nuisances as are in fact so.
“A business authorized or regulated by state statute cannot be prohibited by city ordinance, and ordinances which are in conflict therewith on the same subject are necessarily void. Murphy v. Wright, Tex. Civ.App., Fort Worth 1938, 115 S.W.2d 44g_ * * *”

In each of these cases the City of Fort Worth was seeking to enforce its ordinance by injunction. The Court of Civil Appeals held, in the Atlas case, that the portion of the ordinance declaring the presence of fireworks within the city a nuisance was void and ineffective. The court deciding Atlas held that “fireworks in their nature (and irrespective of quantity) are not nuisances but may become so by reason of their locality, surroundings, or the manner in which they may be handled or manipulated,” and, therefore, the question of nuisance should be determined by applying McQuillin’s second classification. We are inclined to the view that there may be an honest difference of opinion in impartial minds as to whether or not all fireworks by nature are nuisances.

In this case appellant seeks to enjoin the City and certain of its officials from summarily seizing and destroying fireworks which it stores within the City. By the ordinance in question the Fire Marshal is required to seize and destroy and fireworks found in the City in violation of this article. The storage of fireworks within the City constitutes a violation of the article. The cases previously discussed demonstrate that the City was acting within the power granted by the Constitution and laws of the State in prohibiting the storage of fireworks within the City. Treadgill v. State, supra. The City, therefore, was also acting within its powers in denominating the presence of fireworks within the City in violation of the Ordinance a nuisance and providing for its summary abatement. Skipper-Bivens Oil Co. v. State, 115 S.W.2d 1016, Tex.Civ.App., Austin 1938, writ ref.; Sportatorium, Inc. v. State, 104 S.W.2d 912, Tex.Civ.App., Dallas 1937, writ dism.; State ex rel. Shook v. All Texas Racing Ass’n, 128 Tex. 384, 97 S.W.2d 669, Tex.Sup. 1936; Jenkins v. City of Waxahachie, 392 S.W. 2d 482, Tex.Civ.App., Waco 1965, ref., n. r. e.

Appellant has pointed out that the cases upholding the validity of ordinances prohibiting the storage and sale of fireworks were decided prior to the enactment of Art. 1725, Vernon’s Ann. P.C., which prohibits the sale or use of all fireworks within the State of Texas except ICC Class C Common Fireworks. By this Act manufacturers, distributors, jobbers, and retailers of permissible fireworks were licensed, and the sale, possession, and methods of storage of such fireworks were regulated.

Appellant asserts that since he is licensed as a fireworks distributor and stores his fireworks at a place which meets the requirements and specifications recommended by the State Fire Marshal, the State of Texas has determined that his business is a lawful one so that the ordinance in question conflicts with a general State law and is, therefore, ineffective.

“ * * * no ordinance of a city operating under a home rule charter can contain any provision inconsistent with our Constitution, or the general laws of this State.” Berry v. City of Fort Worth, 132 Tex. 599, 124 S.W.2d 842 (1939).

In City of Fort Worth v. McDonald, 293 S.W.2d 256, Tex.Civ.App., Fort Worth 1956, ref., n. r. e., the Court upheld a temporary injunction preventing the enforcement of a city ordinance declaring pinball machines or marble boards nuisances per se and their ownership, operation or exhibition a misdemeanor on the ground that such an ordinance was inconsistent with a statute levying occupation taxes on owners of skill or pleasure coin-operated machines, including marble machines. The Court said:

“From time to time, Texas courts have held that municipalities have no power to prohibit pursuit of occupations regulated by State law. Chronologically cited, the following decisions are in point: Ex parte Powell, 1902, 43 Tex.Cr.R. 391, 66 S.W. 298; Ex parte Ogden, 1902, 43 Tex.Cr.R. 531, 66 S.W. 1100; Ex parte Goldburg, 1918, 82 Tex.Cr.R. 475, 200 S.W. 386; Bielecki v. City of Port Arthur, Tex.Com. App., 1929, 12 S.W.2d 976; Murphy v. Wright, Tex.Civ.App., Fort Worth, 1938, 115 S.W.2d 448; Berry v. City of Fort Worth, 1939, 132 Tex. 599, 124 S.W.2d 842. All except the last involved conflict of the municipal ordinance with a revenue statute, as does this case.”

Art. 1725, V.A.P.C., is clearly a regulatory as well as a licensing Act and the ordinance of the City of Houston would clearly be inconsistent therewith except for the provisions of Sec. 14 thereof reading:

“Be it further enacted, that any Acts, laws or parts of laws in conflict herewith are hereby repealed to the extent of the conflict. However, this Act shall not repeal or affect any town, city or municipal ordinance which prohibits the sale and use of fireworks within the town, city or municipal boundaries which is in effect before the effective date of this Act, or that may be enacted after the effective date of this Act. Provided, however, that nothing herein shall be construed to limit or restrict the powers of cities, towns or villages as defined and delegated by Title 28, Revised Civil Statutes of Texas, to enact ordinances prohibiting or imposing further regulations on fireworks; and provided, however, that any ordinance or ordinances heretofore enacted by any city under the authority of the above mentioned Title shall remain in full force and effect until thereafter amended by such city.”

The provision that this Act should not be construed to limit or restrict the power of cities granted by Title 28, R. C.S., to enact ordinances prohibiting fireworks and preserving ordinances previously enacted by any city under the authority of Title 28, R.C.S., prevents the application of the rule of Berry v. Fort Worth, and City of Fort Worth v. McDonald, supra, to the ordinance in question.

The judgment of the trial court is affirmed.

WERLEIN, J., not sitting.


author: STEPHENSON, Justice.

text:
    TRINITY RIVER AUTHORITY OF TEXAS, Appellant, v. Charles S. McMURREY et al., Appellees.
    No. 6869.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 12, 1967.
    Rehearing Denied Feb. 1, 1967.

      Preston E. Johnson, Liberty, Clark, Thomas, Harris, Denius & Winters, Austin, for appellant.
    Ross Hightower, Livingston, Arnold Smith, W. C. McClain, Conroe, Robert H. McCanne, Houston, for appellees.
   STEPHENSON, Justice.

This is an eminent domain suit brought under the authority of Art. 7880-126, Vernon’s Ann.Civ.St. The Trinity River Authority of Texas will be called “District” and the landowners “claimants” in this opinion.

The District filed its petition in the Second Ninth District Court asking for the formation of a tribunal for the purpose of condemning certain land, a part of which was located within the Judicial District of the Second Ninth District Court. The land was appraised and a decree was entered by the tribunal. The claimants appealed from such decree to the Ninth District Court and the District appealed to the Second Ninth District Court. This case was tried in the Ninth District Court and the District is appellant.

The District’s first point of error is that the Judge of the Ninth District Court erred in usurping the jurisdiction of the Second Ninth District Court. It is argued that the claimants’ appeal bond was prematurely filed, that claimants did not give notice of appeal to the proper official and that the court appointing the tribunal had jurisdiction. We do not find it necessary to pass upon any of these contentions. The judge of the Ninth District Court sat as judge of the Second Ninth District Court and entered an order and transferred the case filed by the District in the Second Ninth District Court to the Ninth District Court, and then entered an order in the Ninth District Court consolidating the two appeals. A portion of § 10A, Art. 199, V.A. C.S., reads as follows:

“Sec. 10A. In all counties wherein the Ninth Judicial District of Texas and the Second Ninth Judicial District of Texas have concurrent jurisdiction, either of the Judges of said Courts may, in their discretion, either in term time or vacation, transfer any case or cases, civil or criminal, that may be pending in his court, to the other district court in said county, and the judges of said courts may, in their discretion, exchange benches from time to time; ”

We hold that the transfer of the case was authorized by this statute, and that the consolidation of the two cases would cure any error that might have been made by claimants during the course of perfecting their appeal.

The District next contends that the court erred in its findings of fair market values because the expert witnesses called by the claimants used an incorrect measure of market value. There is no provision for trial by jury in this type of case, consequently this case was heard and determined by the court alone. Three expert witnesses were called by the claimants and each expressed the opinion that the highest and best use for which the tracts of land involved in this suit were adapted was for rural subdivision purposes. The land in question had not been subdivided into lots and it would have been improper to show what the price of lots would be, and there is no such evidence in this record. However, it is entirely proper for a witness to give his opinion as to the present market value of land, taking into consideration its adaptability to subdivision for residential purposes and the cost of converting it to such use. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808. The values established by the Court were all within the limits of the testimony as given by the expert witnesses. One of these witnesses on cross-examination gave a definition of “market value” which contained an element not found in the usual and accepted definition. The witness Allen testified as follows :

“A. My definition of ‘market value’ is when you have a willing seller, a willing buyer, both completely familiar with the highest and best use of the property and both having the ability to put the property to its highest and best use, negotiating the sale at a price acceptable to each.”

However, no such definition was given by the other two expert witnesses, and if error, was not demonstrated to be harmful under Rule 434, Texas Rules of Civil Procedure. The point is overruled.

The District also contends that there was no evidence, and insufficient evidence to support the findings by the court as to fair market value and just compensation. In passing upon the “no evidence” point we consider only the evidence favorable to such findings and in passing upon the “insufficient evidence” point we consider the entire record. As mentioned in the previous paragraph the testimony of the three expert witnesses support such findings together with other evidence in the record. The testimony of the expert witnesses called by the District did no more than raise an issue for the court to determine. The findings by thelcourt are not so contrary to the evidence as to be clearly wrong or manifestly unjust. The points are overruled.

The District’s last point is that the trial court erred in overruling its motion for new trial in the nature of a bill of review. The judgment was entered March 6, 1966, and the District’s motion for new trial was filed March 17, 1966. This motion was overruled by operation of law May 2, 1966. A new pleading entitled “Motion for a New Trial of the Nature of a Bill of Review” was filed and presented by the District to the trial court May 25, 1966. During the course of the trial, on direct examination, one of the claimants, Charles D. McMurrey, testified as follows:

“Q Now, Mr. McMurrey, tell us this. What are the facts with reference to whether or not this land in question is subj ect to overflows ?
A The land—
Q From the river.
A Sir?
Q From the river.
A From the river? The land doesn’t —does have backwater. It comes up on it in various places when the river is real high. However, this backwater stays in the drainage ditches or in the area of drainage pretty much and it does not get back up on the tract where we are operating farming or back up on the parts away from the drainage ditches. Primarily, it’s the drainage ditches that have the backwater.
Q Have you ever known of this property being inundated as a result of high water, flood waters from the Trinity River ?
A Many years ago, I know of no case recently where flood water has caused any particular problem, but this, I say many years ago, this was back when I was a child.
Q All right. Then within your recollection, has there been any trouble with water flooding the property in question?
A We have had no trouble, no, sir.”

It is alleged in this motion: That a large segment of the McMurrey land was flooded by the high waters of the Trinity River May 12, 1966 and that it was then discovered by the District that the testimony set out above was false. That the District was not negligent in failing to discover this information earlier. That a search of the records then revealed that such land had been flooded frequently in the past. That such land had been inundated 14 times in the past 30 years. That the testimony of Charles D. McMurrey was false and influenced the trial court in making erroneous findings as to the value of the lands involved in this case. This motion was overruled by the trial court without a hearing, by an order stating that the motion was not timely filed and came too late.

A part of Rule 329b, § 5, T.R.C.P., reads as follows:

“5. Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial. After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law. The failure of a party to file a motion for new trial within the ten (10) day period prescribed in subdivision (1) of this rule shall not deprive the court of jurisdiction to set aside a judgment rendered by it, provided such action be taken within thirty (30) days after the judgment is rendered. * * * ”

A recent expression by the Supreme Court of Texas as to bills of review is set out in Hanks v. Rosser, (Tex.) 378 S.W.2d 31, as follows:

“Relief by bill of review is made available in this state by Rule 329b(5) of the Texas Rules of Civil Procedure. The rule does not prescribe the standards by which the actions of a defaulting party must be measured except to say that the bill must be ‘for sufficient cause’ and be ‘filed within the time allowed by law.’ This bill, beyond question, was filed within the time allowed by law. The question is whether ‘sufficient cause’ existed.
“Since the rule does not attempt to specify what ‘sufficient cause’ is, the courts have done so in particular cases. A bill of review proceeding is an equitable one designed to prevent manifest injustice. But while manifest injustice to the defaulting party is a material consideration, another is the necessity for there being finality to judgments. The litigating parties are entitled to know when the contest is at an end; and pth-ers, including title examiners and purchasers and sellers of land and interests in land have a need for knowledge as to whether or not litigation involving title to land has been finally concluded.
“The general rules on the granting of a bill of review are set out in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). This Court there said that before a litigant can successfully set aside a final judgment, he must allege and prove, within the time allowed, (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence on his own part.”

Measuring the allegations • set out in the motion filed by the District with the requirements, set forth in the Hanks v. Rosser and Alexander v. Hagedorn cases, supra, it is apparent that there is a deficiency. Assuming that a meritorious defense was alleged, the District did not plead that it was prevented from making such defense because of fraud, accident or wrongful act of the opposite party. Also, even though the conclusion is alleged that the District was not negligent in failing to discover that the land had been flooded frequently in the past, this court is inclined to conclude otherwise. No act or acts on the part of claimants is or are set forth which would have prevented the District from making an investigation which would have disclosed such information. A careful reading of the testimony given by the claimant Charles D. McMurrey does not reveal perjury.

If this had been a case involving the usual motion for new trial, timely filed, based upon newly discovered evidence, the burden would have been upon the District to show that there was no lack of diligence upon its part to discover the facts now alleged prior to the trial. However, in this case the motion for new trial had already been overruled by operation of law and there is no provision under our rules for a second motion for new trial.

The District relies upon the case of Missouri-Kansas-Texas Ry. Co. v. Evans, 151 Tex. 340, 250 S.W.2d 385, to support its position on this point. In this case a supplemental motion for new trial setting up the newly discovered evidence was filed more than 20 days after the original motion for new trial but before the amended motion for new trial had been acted on. The trial court heard both the amended and supplemental motions for new trial and overruled both. We believe that these facts distinguish the Evans Case, supra, and this present case. We find no abuse of discretion on the part of the trial court in overruling the District’s motion and no harmful error. Rule 434, T.R.C.P.

Affirmed.


author: PHILLIPS, Chief Justice.

text:
    Walter W. FLUGRATH, Appellant, v. BRICKSTONE PRODUCTS CORPORATION, Appellee.
    No. 11461.
    Court of Civil Appeals of Texas. Austin.
    Jan. 25, 1967.

      Leo A. Oliver, San Antonio, for appellant.
    Golder H. Russell, P. Otis Hibler, San Antonio, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from an order granting defendant’s plea of privilege.

Appellant, the plaintiff below, entered into a contract with the abovementioned defendant appellee wherein appellee was to cover the outside of a dwelling house that appellant built in New Braunfels, Comal County, Texas, with Brickstone which is apparently a trade name for a building material applied in the manner of plaster.

Appellant’s suit alleged that numerous cracks appeared in the Brickstone that was applied to the side of the house; that ap-pellee repaired the cracks only to have other cracks appear which appellee again repaired after which the cracks reopened and finally that appellee failed and refused to remedy the above described condition. For this alleged breach, appellant sought certain money damages.

As stated above, the trial court granted appellee’s plea of privilege from which order appellant has perfected his appeal to this Court.

Appellant is before this Court on fourteen points of error, however inasmuch as we sustain his fourteenth point, it will be unnecessary to discuss the others.

Appellant’s fourteenth point is the error of the Court in overruling his plea of privilege because the defendant is a corporation and the cause of action or a part thereof arose in Comal County, Texas.

Vernon’s Ann.Tex.Rev.Civ.Stat. Art. 1995, Subd. 23 provides that no person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: Thus follows a number of exceptions including number 23 which, among other provisions, states that suits against a private corporation may be brought in the county in which the cause of action or part thereof arose.

It is under this exception that appellant seeks to prevail here.

Appellant’s petition and controverting plea to appellee’s plea of privilege (said controverting plea having adopted the petition as a part thereof) name appellee as a corporation and describe the cause of action as arising in Comal County.

True, in the hearing on the plea, appellant sought to sustain venue under several other sections, however, Tex.R.Civ. P. 86, which requires a controverting plea to state specifically the grounds relied upon to confer venue does not require a plaintiff, as against a plea of privilege, to plead specifically which particular exception of the venue statute applies. See this Court’s opinion in Gugenheim v. Anheuser-Busch, 198 S.W.2d 950 (Tex.Civ.App. 1946, no writ).

Appellant alleged and proved a cause of action against appellee which arose in Comal County, the county in which the suit was filed.

By motion, appellee contends that this appeal should be dismissed by virtue of the fact that the bond was not in an amount of at least double the probable amount of the costs in the trial court and the cost of the statement of facts and transcript as fixed by the Clerk. Appellee further contends that although the bond was timely filed it has been altered on its face without any indication that such allegations were timely made.

We overruled this motion inasmuch as there is no question about the timely filing of the bond but only a question of amendment which was permissible under Tex.R. Civ.P. 430.

The judgment of the trial court is reversed and the cause remanded to Comal County for trial.

Reversed and remanded.

O’QUINN, J., not sitting.


author: CADENA, Justice. MURRAY, Chief Justice

text:
    CITY OF SAN ANTONIO, Appellant, v. Donato RAMUNDO, Appellee.
    No. 14498.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 30, 1966.
    Second Motion for Rehearing Denied Jan. 25, 1967.

      Lang, Byrd, Cross, Ladon & Oppenheimer, Bernard Ladon, San Antonio, for appellant.
    Stahl & Sohn, San Antonio, for appellee.
   CADENA, Justice.

On Motion for Rehearing.

The opinion handed down in this case on November 23, 1966, is withdrawn and the following is substituted therefor.

This is a personal injury case in which the City of San Antonio appeals from a judgment, based on a jury verdict, rendered against it in the amount of $18,750.00, in favor of plaintiff, Donato Ramundo. It is undisputed that plaintiff was injured while he was a passenger on a bus operated by the City as a part of its transit system.

City contends that plaintiff is precluded from recovering because of the variance between the factual statements contained in the notice of injury which he filed with the City and the facts, upon which the judgment is based, as found by the jury.

Section 150 of the Charter of the City of San Antonio exempts the City from liability for personal injuries unless the injured person, within ninety days after the injury, gives written notice to designated city officials stating, among other things, “when, where and how” the injury occurred. Plaintiff timely filed a written notice stating that on May 11, 1964, while he was a passenger on a City bus, he was injured as a result of being “caused to fall in said bus when the driver started and then negligently and suddenly stopped the bus.”

In both his original petition and his amended petition plaintiff, without mentioning negligent conduct on the part of any other person, attributed his injuries to the negligence of the operator of the bus. His amended petition specifically charged nine separate acts or omissions on the part of the bus driver which were alleged to constitute negligent conduct.

In its amended answer the City contended that a City policeman who was operating his motorcycle in front of the bus stopped his vehicle suddenly, without giving any indication of his intention to do so, thereby causing the bus driver to bring the bus to a sudden stop. In answer to City’s amended answer, plaintiff filed a supplemental petition in which, after denying generally the allegations in the City’s amended answer, he asserted that if “in fact” there was a motorcycle in front of the bus, the bus driver was negligent in failing to keep a proper lookout and in not having the bus under such control as would permit him to bring it to a smooth and safe stop in the event a vehicle in front of the bus stopped suddenly. He further alleged that the emergency, if any, which confronted the bus driver was the result of the bus driver’s negligence.

The jury’s verdict absolved the bus driver of all negligence. However, in answer to special issues submitted at the request of the City, the jury found that a City policeman had stopped his motorcycle suddenly in front of the bus without giving any warning of his intention to do so, and that this act of the policeman was the sole proximate cause of plaintiff’s injury. The judgment in favor of plaintiff is, thus, necessarily based on the jury findings relating to the conduct of the policeman rather than on the alleged negligence of the bus driver to which plaintiff attributed his injuries in his notice of claim.

The purpose of notice provisions such as the one before us “is to advise the municipality in what the negligence consists and give it an opportunity to investigate * * *, thereby enabling it to better guard against fraudulent and unfounded claims and to settle the claim and avoid litigation, or to prepare for trial if it decides not to make settlement.” City of Waco v. Landingham, 158 S.W.2d 79, 80 (Tex.Civ.App., 1940, writ ref'd).

The problem of determining whether a variance between the statements in the notice of injury and the proof adduced at the trial will bar plaintiff’s recovery is, essentially, a question of the degree of inconsistency between the matters alleged in the notice and those proved. If the discrepancy is such as to mislead or tend to mislead municipal officials in investigating the claim and preparing for trial, the variance is fatal. In such a case the City has not been given the information required to serve the purpose of the notice provision and should not be called upon to defend a different cause of action than that which it prepared to defend on the basis of the facts alleged in the notice. Anno: 52 A.L.R.2d 966, 975 (1957).

The variance here was of such a nature that to uphold the judgment would defeat the purpose of the notice requirement. The notice alerted the City to a claim based on the negligence of a municipal employee engaged in the performance of a proprietary function. The judgment in favor of plaintiff is based on the conduct of a member of the police department. As plaintiff points out in his brief, the City failed to plead the doctrine of municipal immunity from liability for injuries resulting from the negligence of an employee engaged in the performance of a governmental function. Further, as plaintiff points out in his brief, the City introduced no evidence tending to show that, at the time of the accident, the policeman in question was engaged in the performance of duties of a purely governmental character. The production of such evidence was essential to the successful interposition of the defense of governmental immunity. The fact that a person is employed as a member of a municipal department which performs governmental functions is not of itself determinative of the question of liability of the City where, as here, the record affirmatively reflects that members of such department also perform proprietary duties. 40 Tex.Jur.2d, Municipal Corporations, § 619, p. 305; City of Meridian v. Beeman, 175 Miss. 527, 166 So. 757.

Despite the renunciation of the doctrine of governmental immunity by the courts of several other jurisdictions, our Supreme Court has not, as yet, expressly abandoned the rule. True, there have been successful flanking attacks upon the doctrine in such cases as Crow v. City of San Antonio, 157 Tex. 250, 301 S.W.2d 628 (1957); City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180 (1960); and Dancer v. City of Houston, 384 S.W.2d 340 (Tex.Sup.1964). But, to date, the citadel has withstood all frontal assaults. Because, perhaps, of the statement by the Supreme Court in City of Austin v. Daniels, supra, to the effect that a city, “When acting in a governmental capacity * * * is not liable in damages for torts of its employees” (335 S.W.2d at p. 754), Texas city attorneys have evidenced no reluctance to rely on the defense of governmental immunity. Nor have our Courts of Civil Appeals hesitated to uphold such defense. Mayes v. City of Wichita Falls, 403 S.W.2d 852 (Tex.Civ.App., 1966, writ ref'd n. r. e.); Bean v. City of Monahans, 403 S.W.2d 155 (Tex.Civ.App., 1966, writ ref'd n. r. e.); Luvaul v. City of Eagle Pass, 408 S.W.2d 149, Tex.Civ.App., Corpus Christi, Oct. 27, 1966, (application for writ of error pending).

It must be assumed, then, that a Texas municipal attorney, when confronted with a claim based on the asserted negligence of a city policeman, would not, in protecting the interests of his client, ignore the defense of governmental immunity. The City’s failure to plead such defense in this case, as well as its failure to come forward with the proof necessary to support it, is not surprising in view of the fact that plaintiff’s notice, as well as his pleadings, asserted a claim not subject to such defense. Plaintiff now seeks to recover on a cause of action which the City, relying on his notice, was not prepared to, and did not, defend. Under these circumstances, the variance must be held to be fatal.

The closest Texas case in point, although it does not involve the nebulous distinction between governmental and proprietary functions, is City of Waco v. Landingham, supra. There the notice stated that plaintiff’s injury was due to the action of a city employee in, suddenly and without warning, putting in motion a truck from which plaintiff was attempting to alight. Plaintiff’s petition attributed his injury to the negligence of the city in furnishing to the crew a truck with defective brakes, so that, when plaintiff attempted to alight from the truck which had been brought to a complete stop, the vehicle started moving down an incline without having been put in motion by anyone, causing plaintiff to miss his footing and fall. The proof offered by by plaintiff supported the allegations in his petition, and was not in accordance with the facts set out in the notice. The Waco Court of Civil Appeals held that the discrepancy between the facts set out in the notice and the facts proved at the trial was such as to defeat the purpose of the notice requirement, and that such variance was, therefore, fatal.

Plaintiff insists that the Landingham case is inapplicable because the charter provision there involved required that the notice state the “circumstances” under which the injury occurred and the “conditions causing same,” while the San Antonio Charter merely requires a statement of “when, where and how” the injury occurred. Relying on such cases as City of Abilene v. Fillmon, 342 S.W.2d 227 (Tex.Civ.App., 1961, writ ref'd n. r. e.), and City of Houston v. Watson, 376 S.W.2d 23 (Tex.Civ.App., 1964, writ ref’d n. r. e.), plaintiff contends that a requirement that the notice state “how” the injury occurred does not require a statement of the “cause” of the injury.

Insofar as here pertinent, the word “how” means “in what manner or way, by what means or process; from what reason; from what cause.” Webster’s International Dictionary (2d Unabridged ed., 1959). As used in notice provisions, the word “how,” if it is to serve the purpose of the notice requirements, must be intended to require a statement of a means or cause for which the municipality might be held responsible. Thus, in Stoors v. City of Denver, 19 Colo.App. 159, 73 P. 1094, where the applicable provisions required a statement of “when, where and how” the injury occurred, a notice stating that plaintiff slipped and fell on a public way was held defective for failure to state “how” (i. e., through what defect in the way) the injury occurred.

We agree that, as stated in City of Houston v. Watson, supra, notice provisions do not “require the injured party to state the acts and omissions of negligence he expects to rely on in court with the same particularity and meticulosity that may be required in pleadings.” 376 S.W. 2d at p. 29. Nor do we hold, since such a holding is not required, that plaintiff here was required to specify the facts and circumstances on which he relied in asserting that the driver’s act in suddenly stopping the bus constituted negligence. The holding in Watson was merely that the statement in the notice describing the cause of the accident as the negligent failure of the city to maintain a street in a safe condition for travel was broad enough, in its context, to include a failure to make reasonable inspection. A holding to the effect that the description of the cause of an injury is sufficient cannot be easily expanded into a holding that the notice need not state the cause of the accident. There is nothing in the Watson opinion to indicate that a statement attributing an injury to the defendant’s negligence in maintaining a street would support a recovery based on the negligent operation of a garbage truck.

Nor does City of Abilene v. Fillmon, supra, support plaintiff’s contention. The Court there, as we are here, was concerned with the question of compliance with a “when, where and how” notice provision. The opinion in that case clearly supports the view that, under such a provision, it is necessary for claimant to describe the cause of injury. This necessity, said the Court, arose “by reason of the requirement for a statement of ‘how the injury occurred’.” 342 S.W.2d at p. 229. Such language cannot serve as authority in support of the contention that a notice requirement such as that before us does not contemplate a statement of the cause of the injury.

Our holding is, of course, limited to the facts of the case before us, in which the record reflects a variance of such a nature that plaintiff is now seeking to support a judgment based on a cause of action to which a particular defense might have been successfully interposed had the municipality been reasonably alerted to the nature of plaintiff’s claim, while the notice to the City described a claim based on facts setting forth a cause of action to which the omitted defense was not applicable.

Plaintiff’s first four cross-points, asserting that the findings of the jury absolving the bus driver of negligence are contrary to the great weight and preponderance of the evidence, are without merit and are overruled.

Plaintiff’s request for additional findings is denied, since this opinion states the reasons why the judgment below is reversed, and the findings requested by plaintiff are not necessary in order to obtain a full review of our holding upon application for writ of error.

Plaintiff’s motion for rehearing is overruled. The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing.

MURRAY, Chief Justice

(dissenting).

The majority have reversed and rendered the judgment of the trial court because the notice of injury furnished the City in an attempt to comply with Section 150 of the Charter of San Antonio was fatally defective.

Section 150 of the Charter of the City of San Antonio reads in part as follows:

“LIABILITY OF THE CITY AND LIMITATIONS THEREON. Before the City shall be liable for damages for the death or personal injuries of any person * * *, the person injured, * * * shall give the City Manager or the City Clerk notice in writing of such * * * injury * * * within ninety days after same has been sustained, stating in such written notice when, where and how the * * * injury * * * occurred, *

Appellee was injured on May 11, 1964, while a passenger on a bus operated by the City of San Antonio as a common carrier of passengers, and thereafter on July 22, 1964, appellee notified the City Manager and City Clerk of San Antonio in writing as follows :

“On May 11, 1964, Donato Ramundo was a passenger on one of the buses operated by the Transit Board of Trustees of San Antonio and the City of San Antonio. At about 7:30 A.M., at about the intersection of West Martin and North St. Mary’s Street, in the City of San Antonio, Mr. Ramundo was caused to fall in said bus when the driver started and then negligently and suddenly stopped the bus.
“In accordance with Section 150 of the Charter of the City of San Antonio we, as representatives of and attorneys for Mr. Ramundo, hereby give notice of said accident and injuries sustained by Mr. Ra-mundo.
“As a result of such accident, Mr. Ra-mundo sustained injuries to his head, back, right arm, leg and hand, neck and a compression fracture of T-12 vertebra. Mr. Ramundo is still under the care of his doctors and the full extent of his injuries and disabilities have not yet been determined. The best estimate that can be made at this time is that he has been damaged in excess of $10,000.00.”

On July 22, 1965, appellant filed its “FIRST AMENDED ORIGINAL ANSWER” containing the following allegations :

“ * * * That when the traffic signal turned to green, a ‘3-wheeler’ motorcycle of the type commonly used by the City of San Antonio Police Department and being driven by a City of San Antonio Policeman in the regular course of his duties started its forward movement and Mr. Harvey simultaneously started the forward movement of his bus. That at that time Mr. Ramundo was standing up in the aisle of the bus even though he did not intend to alight from the bus until it reached the next block. That for some reason unknown to the defendant, the policeman brought his motorcycle to a sudden and unexpected stop without giving any sign or signal of his intention so to do, creating an emergency, and causing Mr. Harvey to mash down on the brakes of his bus bringing the same to a sudden stop. That in so doing, Mr. Ra-mundo was thrown to the floor of the bus and another passenger, who had just gotten on the bus at Martin Street, was also thrown to the floor. * * *
“This defendant says that the action of the motorcycle policeman in bringing his motorcycle to a sudden stop without any type of signal or warning, causing the operator of the bus to quickly step on his brakes and bring the bus to a sudden stop was the sole proximate cause of the accident in question.” (Emphases mine.)

Appellee’s first witness was Arnold Harvey, who was the driver of the bus on the occasion in question, and his testimony was in support of the above allegations.

The jury found, among other things, that the policeman driving the three-wheeler motorcycle was proceeding in a southerly direction on St. Mary’s Street in front of the bus, and that the policeman suddenly stopped the motorcycle without signaling his intention to do so and this act was the sole proximate cause of the accident.

The majority have held that the notice given to appellant by appellee was fatally defective because it alleged that the accident was caused by the negligence of the bus driver in suddenly stopping the bus when, according to the verdict of the jury, the accident was caused by the sudden stopping by a policeman of his motorcycle in front of the bus, thus forcing the bus driver to mash his brakes and suddenly stop the bus.

The City does not deny that the bus was suddenly stopped and that appellee was thrown to the floor of the bus and injured, but does contend that the bus driver was not negligent as he was forced to make the sudden stop in order to prevent hitting the policeman and his motorcycle.

Appellee denied that there was a policeman in front of the bus which caused the sudden stop, but the jury believed the City’s bus driver who was seated high up in the front of the bus and in a much better position to see what was happening, and especially was this so after appellee had been thrown to the floor of the bus. The report of the bus driver shows that immediately after the accident he secured nine courtesy cards from people on the bus. This information is not furnished to the injured passenger. Ex parte Ladon, 160 Tex. 7, 325 S.W.2d 121. In fact, the entire record shows that the City, through its employees, was in a much better position to know how the accident happened than was appellee who was thrown to the floor of the bus and injured.

In my opinion the written notice furnished the City by appellee fully met the requirements of Section 150 of the City Charter. There is no question but that notice was given as to “where” and “when” the accident occurred, but the City contends it did not meet the requirement as to “how” it occurred. I think it does; it states in effect that the bus driver suddenly stopped the bus and caused Ramundo to fall to the floor. This is how the accident happened. The fact that the City was able to prove on the trial that it was not the negligence of the bus driver, but the negligence of another employee, that caused the accident is not sufficient to show a variance rendering the notice fatally defective.

The requirements of Section 150 of the City Charter are perfectly legal and unless appellee has complied therewith he has lost his claim against the City. ■

The majority say that “The purpose of notice provisions such as are before us 'is to advise the municipality in what the negligence consists * * ” Citing City of Waco v. Landingham, Tex.Civ.App., 158 S.W.2d 79, 80, writ ref. I do not agree. Different cities have various provisions as to notice of injuries. The notice required by the City Charter of Waco is so different from the notice required by the Charter of San Antonio that the above case is of no help in construing the provisions of Sec. 150 in the Charter of the City of San Antonio.

The requirement of the San Antonio Charter is that the notice must state, among other things, “when, where and how” the injury occurred. Appellee’s notice stated that the injury occurred about 7:30 A.M. on May 11, 1964, while Ramundo was a passenger on one of the buses operated by the Transit Board of Trustees of San Antonio and the City of San Antonio, at about the intersection of West Martin and North St. Mary’s Street in the City of San Antonio. This statement agrees exactly with the City bus driver’s report made to the City. As to “how” the injury occurred, the notice says: “Mr. Ramundo was caused to fall in said bus when the driver started and then negligently and suddenly stopped the bus.” This statement as to how the injury occurred also corresponds with the report of the bus driver, except the bus driver does not admit that he was negligent in stopping the bus suddenly because a City policeman, without giving notice or signal of his intention to do so, suddenly stopped his three-wheeler motorcycle in the path of the bus. In my opinion, as to whether the sudden stopping of the bus was the result of the negligence of the City’s bus driver or the negligence of the City’s policeman, the bus driver, seated high in the bus, charged with the duty of keeping a proper lookout, was in a better position to know what caused the sudden stopping of the bus than was Ramundo, especially after he was thrown to the floor of the bus and injured. Ramundo reported the accident as he saw it, and he told fully how it happened, and that meets the requirement of Section ISO of the Charter of the City of San Antonio.

The City of San Antonio had its driver seated high up in the front of the bus observing what was happening as it happened, and the City does not show that it was injured in any way by the failure of Ramundo to report the negligence of the City policeman, and that it did not have enough information to properly investigate the accident.

The provisions of Section 150 of the Charter while valid are against the common right and should be reasonably construed against the City. City of San Antonio v. Pfeiffer, Tex.Civ.App., 216 S.W. 207; City of Dallas v. Shows, Tex.Com.App., 212 S.W. 633.

To here hold that in order to show “how” an injury occurred a claimant must set out all of the acts of negligence relied on by him would add something to Section 150, rather than construe it reasonably strictly against the City.

The following cases are in point here: City of Abilene v. Fillmon, Tex.Civ.App., 342 S.W.2d 227; Werner v. City of Rochester, 77 Hun 33, 28 N.Y.S. 226. In Brolin v. City of Independence, 235 Mo.App. 360, 138 S.W.2d 741, the Court said:

“Defendant claims that the notice is insufficient in that it fails to state why plaintiff was traveling in the street at the time, instead of along the sidewalk adjacent thereto; that it fails to allege the defenctive condition of thé sidewalk. We think that, since the notice complies literally with the statute in its terms, such compliance was sufficient. To hold otherwise would be to require that the notice, to be good, must state all of the claimed negligence of defendant upon which plaintiff relies for recovery; that the notice must contain something more than the statute requires. But for the statute, defendant would not be entitled to any notice at all. We are unwilling to amend the statute, by judicial interpretation, and thereby read something into it which the legislature did not write into it. ‘While the circumstances of the injury are to be stated in the notice, the statute does not require the causes which produced the injury to be enumerated.’ McCartney v. City of Washington, 124 Iowa 382, 100 N.W. 80, loc. cit. 81. ‘Technical accuracy is not required, neither is it necessary to set out the particular negligence relied upon.’ City of Bessemer v. Barnett, 212 Ala. 202, loc. cit. 203, 102 So. 23, loc. cit. 25. The point is ruled against defendant.”

See also MaGee v. Jones County, 161 Iowa 296, 142 N.W. 957, 48 L.R.A.,N.S., 141; Forbes v. City of Omaha, 79 Neb. 6, 112 N.W. 326; McCartney v. City of Washington, 124 Iowa 382, 100 N.W. 80. Gonzales v. City of Corpus Christi, Tex.Civ.App., 323 S.W.2d 495, is not in point here. There the notice incorrectly stated “where” the injury happened. There are a number of “where” cases cited, but they shed very little light upon cases which involve “how” the injury occurred.

The notice given in this case stated exactly “how” the injury occurred, to-wit, by the bus stopping suddenly and throwing Ra-mundo to the floor of the bus and injuring him. The evidence shows that this is “how” he was injured, the only dispute is as to whether the negligence of the bus driver or the negligence of the policeman caused the bus to stop suddenly. Section 150 of the Charter does not require that the notice set forth the acts of negligence relied upon by the claimant.

I cannot agree that there was a fatal variance between the notice and the evidence at the trial. I would affirm the judgment.

      . In its original answer the City alleged that the bus operator was forced to make an emergency stop when a vehicle operated by an unknown driver suddenly “cut” in front of the bus.

      . The trial court refused to permit the City, at the conclusion of the evidence, to amend its pleadings so as to incorporate the defense of governmental immunity.


text:
    McKinley J. RICHARDS, Appellant, v. CONSOLIDATED UNDERWRITERS et al., Appellees.
    No. 6873.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 19, 1967.
    Rehearing Denied Feb. 1, 1967.
    Waldman & Smallwood, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellees.
   STEPHENSON, Justice.

This is a suit brought by McKinley J. Richards under the Workmen’s Compensation Law of the State of Texas. Motions for summary judgment were filed by both Consolidated Underwriters and Liberty Mutual Insurance Company and both were granted. This appeal is from the judgment granted Liberty Mutual Insurance Company. The parties will be referred to here as they were in the trial court.

Plaintiff filed notice of injury and claim for compensation alleging he was injured while working for Mabry Foundry and Machine Company and/or Iron Castings, Inc. Consolidated Underwriters was the insurance carrier for Mabry Foundry and Machine Company, and Liberty Mutual for Iron Castings, Inc. The Industrial Accident Board entered a final award denying plaintiff’s claim for compensation. Plaintiff gave notice of appeal and then within 20 days from such notice, filed suit against Consolidated Underwriters. Defendant Liberty Mutual was first named as a defendant by plaintiff’s second amended original petition which was filed more than four months later.

The primary question to he determined in this case is whether the trial court erred in granting defendant’s motion for summary judgment on the ground that such trial court lacked jurisdiction to hear this case because suit was not filed against this defendant within 20 days following the notice of intention to appeal.

Article 8307, § 5, Vernon’s Ann.Civ.St, reads in part as follows:

“ * * * Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision, and said Board shall proceed no further toward the adjustment of such claim, other than hereinafter provided. * * * Whenever such suit is brought, the rights and liability of the parties thereto shall be determined by the provisions of this law, and the suit of the injured employee or person suing on account of the death of such employee shall be against the Association, if the employer of such injured or deceased employee at the time of such injury or death was a subscriber as defined in this law. * * * ”

The Commission of Appeals in Oilmen’s Reciprocal Ass’n v. Franklin, 116 Tex. 59, 286 S.W. 195, held that both the time and place of filing a compensation case under the above quoted statute, are jurisdictional. The courts of this state have consistently followed this pronouncement of the law. Even though the precise situation in this case has not been passed upon in this state, we have concluded that this general statement of the law must be followed.

It has been held that this provision in Article 8307, § 5, V.A.C.S., requiring suit to be filed within 20 days after the motion of intention to appeal is a general statute of limitation. Braden v. Transport Ins. Co., Tex.Civ.App., 307 S.W.2d 655. The filing of this suit against Consolidated Underwriters did not toll the statute of limitation as to defendant Liberty Mutual. Brown v. McMillan Material Co., Tex.Civ.App., 108 S.W.2d 914. Plaintiff did not allege fraud or any other ground which prevented the statute of limitation from running. The trial court properly granted the motion for summary judgment.

Affirmed.


text:
    Charlene Davis CRAIN, Appellant, v. Vernon L. DAVIS et ux., Appellee.
    No. 6861.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 29, 1966.
    Rehearing Denied Jan. 25, 1967.

      Walter M. Sekaly, Beaumont, for appellant.
    Sexton & Owens, Orange, for appellee.
   STEPHENSON, Justice.

This was an action brought in the nature of a bill of review attacking a judgment awarding defendants the custody of a minor child. Defendants’ motion for summary judgment was granted by the trial court. The parties will be referred to here as they were in the trial court in this action for bill of review.

Defendants, the paternal grandparents of the minor child, were awarded custody of the child by an agreed judgment signed and approved by plaintiff and her attorney. Plaintiff filed this petition in the nature of a bill of review, through another attorney, alleging that her consent to the judgment was obtained through fraudulent statements made to her by defendants’ attorney.

Defendants filed their motion for summary judgment and affidavits were filed by both parties. It is argued by defendants that the affidavit filed by plaintiff did not raise a genuine issue of fact as to whether plaintiff had a meritorious defense in the original custody suit. A study of the affidavits shows that defendants are correct in taking this position. The affidavit filed by defendants in support of their motion contained the following:

“That we are the mother, brother and stepfather, respectively, of Charlene E. Kollenborn Davis Hickey Crain. Vernon Keith Davis, who is two and one-half (2½) years old, is the son of the said Charlene E. Kollenborn Davis Hickey Crain. Charlene has, since October of 1961, been married on at least one occasion and is presently living with another man named Ralph Monroe Crain, who she alleges to be her husband. Within each of our knowledge, Charlene’s conduct and morals, since October of 1961, including but not limited to her behavior and conduct in the presence of her minor son, has evidenced a complete disregard for morality, truthfulness and respectability, and it is each of our opinions that the welfare, training and education of Vernon Keith Davis is being disregarded by that child's mother, and that the best interest and welfare of the child would be served if the child were placed in a respectable home where it could receive the care, affection, training and stability that a two-year old needs to be properly reared.
“In this connection, we are all acquainted with Mr. and Mrs. Vernon L. Davis of Orange, Texas, who are the paternal grandparents of Vernon Keith Davis and we know them to have a stable home, and we know them to be of fine moral character and we know them to hold much love and affection for their grandchild, and we are of the opinion that they are the proper persons to have the care, custody and control of Vernon Keith Davis.”

Even though plaintiff had alleged in her unverified petition that she had a good defense in that she was a fit and proper person to have custody of her child, the affidavit filed by her in answer to the motion for summary judgment makes no mention of a meritorious defense. Her pleadings alone did not raise a genuine issue of this material fact and the summary judgment was properly granted. Keahey v. Dallas Teachers Credit Union, Tex.Civ.App., 374 S.W.2d 450.

Affirmed.


author: WILSON, Justice.

text:
    Danna Davis JACOBS, Appellant, v. Cohran L. MAYHUGH et al., Appellees.
    No. 4547.
    Court of Civil Appeals of Texas. Waco.
    Jan. 26, 1967.
    Rehearing Denied Feb. 16, 1967.
    Robert W. Hillin, Sam Jones, Waco, for appellant.
    Albert Witcher, Waco, for appellees.
   OPINION

WILSON, Justice.

The chief points in this intersectional automobile collision case present questions of no evidence, insufficient evidence, and preponderance of the evidence as to jury findings that appellant failed to keep a proper lookout, and proximate cause. We affirm the judgment, rendered on the findings, that appellant take nothing.

At the outset we doubt that it is possible in any event to sustain these points which require evaluation of all the evidence, or determination of whether there is any evidence, because all the evidence is not before us. A plat, a drawing and numerous photographs were before the jury which are not made available here. See 3 Tex.Jur.2d, Sec. 411, Appeal and Error, p. 665 and cases cited.

The record presented, however, contains adequate evidence of probative force to sustain the findings of failure to keep a proper lookout and of proximate cause. Notwithstanding appellant testified she stopped completely before entering the uncontrolled intersection and looked to her right three times toward the adverse vehicle, she testified she never saw it, although it was there, and notwithstanding there were no exterior physical obstacles to impair her view. There was evidence that although the adverse vehicle left tire skid-marks of 66 feet, appellant’s vehicle left none. There was testimony from appellant that she was driving to a washateria with clothes “in a plastic clothes basket, the ones that were in the front, a huge plastic clothes basket”; and there was testimony as to the quantity of these clothes and their location relative to her right window, from which the jury was authorized to deduce that the basket of clothes obstructed her vision to the right. She admitted that after looking to her “right and back” three times, and proceeding at ten miles per hour, she was halfway into the intersection before she saw appellee’s car.

Admission of evidence of refusal of a request by appellee to appellant’s attorney that appellant submit to “an independent medical examination by an orthopedic surgeon” is the subject of another complaint. Ap-pellee’s attorney apparently made a request by letter to appellant’s counsel, although the letter is not in evidence. The ground of objection relied on here is not clear. The extent of appellant’s testimony quoted in the brief is simply that she did not see, and had not read such a letter; and had not been asked to submit to an examination. There was no evidence admitted such as the point and the assignment in the motion for new trial complained of.

Had the evidence suggested by the point been in the record, however, it would not reflect error. In a personal injury action it is ordinarily permissible to show that a party has refused to submit to a physical examination. Austin & N. W. R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 408; 64 L.R.A. 494, 104 Am.St.Rep. 863; Tarver v. Vallance, Tex.Civ.App., 97 S.W.2d 748, 753; Missouri, K. & T. R. Co. of Texas v. Mitchell, 40 Tex.Civ.App. 633, 90 S.W. 716; Anizan v. Paquette, Tex.Civ.App., 113 S.W.2d 196, writ dism.; Texas & N. O. R. Co. v. Broadway, Tex.Civ.App., 345 S.W.2d 814; Gulf, C. & S. F. Ry. Co. v. Booth, Tex.Civ.App., 97 S.W. 128, 130; McCormick & Ray, Texas Law of Evidence, Sec. 104, p. 142; 31A C.J.S. Evidence § 156(1), p. 398; 25A C.J.S. Damages § 174(7), p. 148.

The rule is not affected by the fact the request was made to an attorney of record rather than directly to the litigant. 7 Tex.Jur.2d Attorneys at Law, Secs. 53, 38, pp. 105, 78; 7 C.J.S. Attorney and Client §§ 69, 80, pp. 853, 899.

Affirmed.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. James Monroe JENKINS, Appellant.
    Nos. 52181, 52182.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Norman H. Anderson, Atty. Gen., William A. Peterson, Asst. Atty. Gen., Jefferson City, for respondent.
    No attorney for appellant,
   STOCKARD, Commissioner.

On December 1, 1959, James Monroe Jenkins was charged by one information (Case No. 33,379) with the offense of statutory rape, and by another information (Case No. 33,378) with the offense of stealing an automobile. On the same day two well known and respected members of the bar were appointed to represent him. On July 10, 1961, in open court and in the presence of his counsel defendant entered a plea of guilty to the charge of stealing an automobile. He was sentenced by the court to imprisonment for a term of five years, and judgment was entered accordingly. The trial court then took up the charge of rape (Case No. 33,378). After a discussion and with the consent of counsel the court accepted a plea of guilty from defendant to the charge of attempted rape. The following then occurred:

“The Court: The judgment and sentence of the Court, Mr. Jenkins, on your plea of guilty to this charge of attempted rape, [is] that you be imprisoned in custody of the Department of Correction for a term of ten years, and that this sentence begin after the termination, the ending of the sentence in Case Number 33,378, that is, that the two sentences run consecutively, one after the other.”
“The Defendant: Yes, sir.
“The Court: As I understand it, gentlemen, that is in accordance with the understanding that everyone had previous to the time the pleas were entered, is that right?
“Mr. Vickrey [prosecuting attorney] : That’s right.
“Mr. Fowlkes [defense counsel]: Is that correct, Mr. Jenkins?
“The Defendant: Yes, sir.
“The Court: And that is your understanding, Mr. Fowlkes ?
“Mr. Fowlkes: Yes, sir.
“The Court: All right.”

The judgment entered of record provided that “Sentence herein to run consecutively with sentence in Case No. 33,378.”

On December IS, 1965, defendant filed in each case a motion pursuant to Criminal Rule 27.26, V.A.M.R., in which he alleged first, that “the sentences in cases number 33,378 and 33,379 should be calculated as concurrent terms of imprisonment for the reason that the terms of imprisonment are ordered to run consecutive with, lacking the proper legal directive as required by law in assessing consecutive terms of imprisonment, therefore, constitutes only a term of ten (10) years as prescribed in number 33,379,” and, second, the sentence of ten years in case number 33,379, “is in excess of the maximum term under Missouri law, for the reason that the crime of attempted rape, the judgment and sentence, lacking the element of malice aforethought, therefore, only the maximum of five (5) years is prescribed by Section 559.190 RSMo 1959, * * *.”

It has long been established that in circumstances such as we have in this case the court may impose either cumulative or concurrent sentences. “The only requirement is that the judgments should clearly reveal the intent of the court in that respect.” State v. Shell, Mo., 299 S.W.2d 465, 467; State v. Fleshman, Mo., 399 S.W.2d 56, 58. The judgment in the stealing case made no reference to the judgment in the attempted rape case, and the sentence there imposed would commence as provided by law. State v. Amsden, Mo., 299 S.W.2d 498. The judgment in the attempted rape case expressly provided that “Sentence herein to run consecutively with sentence in Case No. 33,378.” It seems to be defendant’s contention that the sentences are to be construed to be concurrent because “the terms of imprisonment are ordered to run consecutive with” instead of the sentence for attempted rape being ordered to be “consecutive to” the sentence for stealing. We find no merit to this contention.

The fact that the court orders the second sentence to run consecutively “with” rather than consecutively “to” a prior sentence does not create a fatal ambiguity. See 24 C.J.S. Criminal Law § 1581, and cases there cited. Neither does it prevent the prisoner from being required to serve the second sentence after the termination of the first sentence. Young v. United States, 8 Cir., 274 F.2d 698, affm’d Payne v. Madigan, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853; Bledsoe v. Johnston, 9 Cir., 154 F.2d 458, certiorari denied, 328 U.S. 872, 66 S.Ct. 1367, 90 L.Ed. 1642; Martini v. Johnston, 9 Cir., 103 F.2d 597, certiorari denied, 307 U.S. 642, 59 S.Ct. 1045, 83 L.Ed. 1522. The judgments entered in this case clearly reveal the intent of the court to impose cumulative sentences to be served consecutively and not concurrently.

Defendant’s contention that the ten year sentence “is in excess of the maximum term under Missouri law” is also without merit. Defendant apparently is of the erroneous opinion that the offense of attempted rape is the same as an assault with an attempt to commit rape proscribed by Section 559.190, RSMo 1959, V.A.M.S. It may be that some factual situations constitute a violation of Section 559.190 and also constitute an attempted rape, but they are two separate offenses. Attempted rape is a lesser included offense of rape, State v. Wells, Mo., 305 S.W.2d 457, and the punishment therefor is set forth in Section 556.150(1) at two to fifteen years imprisonment. Therefore, the punishment imposed by the trial court was within authorized limits.

The judgments are affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.