text:
    PANHANDLE & SANTA FE RAILWAY COMPANY, Appellant, v. A. D. HOWARD, Appellee.
    No. 7542.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 29, 1965.
    Rehearing Denied Dec. 27, 1965.

      McWhorter, Cobb, Johnson & Cobb, Lubbock, for appellant.
    Splawn & Maner, Lubbock, for appellee.
   DENTON, Chief Justice.

This suit was brought under the provisions of the Federal Employers’ Liability Act, Article 45, Section 51 et seq. U.S. Code Annotated. Appellee, A. D. Howard, while employed by the Panhandle & Santa Fe Railway Company as a switchman received a back injury on February 15, 1963, while lifting a metal gate which enclosed a spur track leading to an industrial area. The trial court, based on a jury verdict, entered judgment for plaintiff below, and the defendant railroad has perfected this appeal.

In response to the special issues submitted, the jury found: (1) the double gate in question was defective and in disrepair; (2) that the railroad through its employees in the exercise of ordinary care knew or should have known of the defective condition of the gate in time to have repaired same prior to plaintiff’s injuries; that such failure was negligence and a proximate cause of the plaintiff’s injuries; (3) that the railroad company failed to make a proper inspection of the gate; that such failure was negligence and a proximate cause of the plaintiff’s injuries; (4) that the railroad company failed to furnish the plaintiff a reasonably safe place in which to work; that such failure was negligence and a proximate cause of the plaintiff’s injuries; (5) that the plaintiff attempted to close the gate in question with knowledge that it was defective; that such act was negligence and a proximate cause of his injuries; (6) that the plaintiff’s negligence attributed 1% to his injuries in the comparative negligence issue; and found the plaintiff was damaged to the extent of $42,500. The trial court applied the comparative negligence principle and entered judgment for plaintiff for $42,075.

Appellant first complains of the failure of the trial court to submit its requested issues which inquired whether Howard, knowing his own physical strength, abused such strength in choosing the way and means of closing the gate in question; and whether such act was negligence and a proximate cause of his injuries. It is appellant’s position that these requested issues were defensive issues of negligence on the part of the employee and not issues of assumption of risk. They concede there is a fine distinction between assumption of risk on one hand and negligence on the other. All parties seem to agree, and correctly so, that the 1939 amendment to the Federal Employers’ Liability Act has “written out” assumption of risk from the Act. The United States Supreme Court in discussing this amendment in Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, stated:

“The result is an Act which requires cases tried under the Federal Act to be handled as though no doctrine of assumption of risk had ever existed.”

The United States Court of Appeals, 6th Circuit, in Gowins v. Pennsylvania Railroad Co., 299 F.2d 431 (1962), interpreted the Tiller decision on this point in the following language:

“Assumption of risk as a defense, where there is negligence on the part of the employer, has been written out of the Act. But when used in the sense that the employer is not liable for those risks which it could not avoid in the observance of its duty of care, it has not been written out of the law.”

Here the jury found the employer negligent in several respects, and appellant has not raised the sufficiency of the evidence to support these findings.

The question is whether the requested issues have submitted assumption of risk or are they a contributory negligence issue. If the issues present the defense of assumption of risk they are clearly improper ; if a negligence issue they are proper if they conform with other applicable rules of special issues submission. When the requested issues and the pleadings which form the basis of these issues are analyzed, it is evident they are designed to charge the employee with assumption of risk. The crux of the inquiry deals with the method the employee chose to close the gate. The issue would have required the jury to decide whether the employee “knowing his own physical strength, abused such strength in choosing the way and means of closing said gate.” (Emphasis added) Assumed risk pertains to a state of mind. Byrd v. Trevino-Bermea, 366 S.W.2d 632. Obviously the requested special issues pertain to Howard’s process of thinking or state of mind when he determined how he would close the gate. We think the requested issues did pertain to assumption of risk and the trial court properly refused to submit them. Even though we be mistaken in so holding, the issues were not proper for additional reasons. They were not supported by any evidence as there is no testimony Howard knew his own strength. We are not aware of a rule of law which requires such a finding, nor has a case been cited which holds a workman is charged with knowledge of his own physical strength and the extent to which he may exert such strength before being held negligent. The issues were further erroneous in the form submitted as they constitute a comment on the weight of the evidence.

Appellant next contends the trial court, in view of the undisputed evidence that Howard, knowing of the defective condition of the gate abused his own strength in closing the gate, placed a greater degree of care upon the defendant than is required by law. In support of this contention defendant cites several cases in which relief is denied where the injury resulted from the employees’ own negligence. Those cited include: International-Great Northern Railroad Co. v. Lowry, 132 Tex. 272, 121 S.W.2d 585; Shaw v. Atlantic Coast Line Railroad Co., 238 F.2d 525 (4th Circuit); Finnegan v. Monongahela Connecting Railroad Co., 379 Pa. 63, 108 A.2d 321; Roberts v. Louisville & N. R. Co., 111 F.2d 826 (5th Circuit). The holding of these cases are not applicable here. In each of the cases cited no negligence was shown on the part of the employer, and the trier of the facts found the employees’ injuries were the result of his own negligence. In the case at bar the jury found the defendant employer, through its agents or employees, negligent in several respects as previously indicated. The jury found Howard negligent in attempting to close the gate with knowledge that it was defective, and that such negligence was a proximate cause of his injuries. In view of the negligent acts of the employer, the contributory negligent act of the employee did not bar a recovery for his injuries, but goes to the diminution of the damages. This was properly submitted to the jury, and the trial court applied the comparative negligence principle in its judgment.

Appellant next takes the position there was no evidence that it had notice of the defective gate; and that the gate located on industrial property of a third party was not the responsibility of the appellant. Appellant argues that even though there was testimony to the effect the defective gate had been previously reported to the yardmaster, he was not the one responsible for making such repairs and, therefore, such report to him did not constitute notice to the railroad. The law is settled that a defendant can not be held for negligence in such cases in the absence of proof that the defect was known or should or could have been known by the defendant with the opportunity to correct it. Miller v. Cincinnati, New Orleans & T. & P. Ry. Co., 317 F.2d 693 (6th Circuit), and cases cited therein. This same rule has been applied to F.E.L.A. actions where negligence is essential to recovery. Wilson v. Missouri Pacific Rd. Co., 319 Mo. 308, 5 S.W.2d 19, Cert. Denied, 278 U.S. 622, 49 S.Ct. 25, 73 L.Ed. 543; Kaminski v. Chicago River & Indiana R. Co., 200 F.2d 1 (7th Circuit). However the establishment of such elements may be made by the proving of facts which permit a jury inference that the defect was discovered or should have been discovered by the exercise of reasonable care or inspection. 56 C.J.S. Master and Servant § 248, page 1002, and cases cited therein. There was testimony from appellant’s employees that the gate in question had been defective for at least two years prior to appellee’s injury. The length of time a defect had existed is an important factor in determining whether or not the employer in the exercise of ordinary and reasonable care ought to have known of the presence of the defect. Grand Trunk Western R. Co. v. Boylen, 81 F.2d 91 (7th Circuit).

Several witnesses, including a switchman and an engineer employed by appellant, testified they reported the defective gate to their yardmaster several times prior to the time Howard sustained his injuries. In spite of testimony that the actual work to correct the damaged gate would be done by the “section crew” under the supervision of the division engineer or the roadmaster, we think notice given to the yardmaster is sufficient. The latter was in charge of switching operations and as such it was his duty as a supervisory employee of the company to provide the switching crew a safe place in which to work. The fact he was not immediately responsible for the actual repairs did not under this record relieve the company of notice of such a defect given to the yardmaster. It is apparent the defect had existed for a rather long period of time. The evidence is sufficient to impute notice to the defendant of the defective condition of the gate. St. Louis Southwestern Ry. Co. of Texas v. Lawrence, (Tex.Civ.App.), 91 S.W.2d 434 (Reversed on other grounds); Texarkana & Ft. S. R. Co. v. LaVelle (Tex.Civ.App.), 260 S.W. 248.

The gate in question served to enclose the industrial property owned by a third party, and the record indicates the gate was the property of the third party. Appellant’s spur track lead onto this property. In order for appellant’s engineers to spot boxcars onto the industrial property, it was necessary to unlock the gate. It is uncontradicted the lock which secured the gate was the property of the railroad company, and the switching crews carried a key which fitted the lock. Appellant urges it was the responsibility of the grain company and not the railroad to make repairs on the gate. Ward v. Atlantic Coast Line Ry. Co., 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820, is cited in support of this contention. That case is not in point. The sole question in that case was whether or not the laborer in a section gang employed by the railroad was an employee of the railroad during the performance of the work when he was injured. The work was being done on a siding privately owned by the turpentine company on a Saturday when the crew was not normally engaged in work for the railway company. The workers were paid by the turpentine company. The Supreme Court reversed and remanded a recovery for the employee on the ground the trial court’s charge unduly limited the factors to he considered in determining the laborer’s employment.

We think the facts of this case bring it within the ruling of Payne v. Baltimore & Ohio Railroad Co., 309 F.2d 546, (Cert. Denied), 374 U.S. 827, 83 S.Ct. 1865, 10 L.Ed.2d 1051. There the deceased employee of the railroad was killed when the boxcar on which he was riding was derailed. The car was moving on a private spur track and its derailment was caused by ashes being placed on the spur track by the owner of the track. The court in holding the negligence of the owner of the private track was imputable to the railroad under F.E. L.A. based its decision on the responsibility of the railroad to provide for the safety of a place where its employees are required to work. The court held:

“A railroad has the nondelegable duty to provide an employee with a safe place to work. This is so despite the fact that it may not own, control or he under a primary obligation to maintain the premises on which the employee is injured. A railroad is not relieved from liability because such premises are unsafe or because of the existence of an unsafe condition brought about through the act of another and without fault, on the railroad’s part. Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958); Chicago Great Western Railway Company v. Casura, 234 F.2d 441, 447 (8 Cir., 1956); Kennedy v. Pennsylvania Railroad Company, 169 F.Supp. 406, 410 (W.D.Pa., 1959). * * * Can defendant successfully maintain that since it was the duty of SUCO under the terms of the contract to maintain the spur track that SUCO’s negligence in failing to properly maintain it is not imputable to defendant? We think not.”

See also Denver & Rio Grande Western Railroad Co. v. Conley, 293 F.2d 612 (10th Circuit).

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


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    James C. JONES, Appellant, v. TEXAS GULF SULPHUR CO. et al., Appellees.
    No. 14681.
    Court of Civil Appeals of Texas. Houston.
    Dec. 16, 1965.
    Rehearing Denied Jan. 6, 1966.

      John H. Holloway, Houston, for appellant.
    Vinson, Elkins, Weems & S earls, and Judson R. Wood, Houston, for appellees.
   WERLEIN, Justice.

Appellant, James C. Jones, brought suit against Texas Gulf Sulphur Company, H. L. Zigler, Inc., Harris County-Houston Ship Channel Navigation District, hereinafter referred to as Navigation District or District, and the following individually named defendants: Howard Tellepsen, W. N. Blanton, J. G. Turney, J. P. Hamblen, William M. Hatten, Vernon Whiteside, J. P. Turner, Vernon Bailey and J. L. Lockett, Jr., to recover damages for personal injuries sustained by appellant, resulting from the alleged negligence of said defendants or the negligence of others for whom it was alleged said defendants were responsible. The Navigation District and all the individually named defendants filed an un-sworn pleading claiming sovereign immunity from tort liability. Appellant by supplemental petition pleaded waiver and estop-pel as to said appellees’ governmental immunity upon the basis of a liability .insurance policy which had been taken out by the Navigation District. The District and said individuals timely made their joint motion for severance of appellant’s cause of action against them from his cause of action against the Gulf Company and Zig-ler, and for summary judgment as to them, which motion was sustained.

Appellant asserts that the trial court erred in granting the summary judgment based upon governmental immunity since such immunity was allegedly waived and appellees were estopped to assert it to the extent of the limits of a comprehensive general liability policy which had been taken out by the Navigation District under the provisions of Article 8247a, Secs. 12 and 17, Vernon’s Annotated Texas Statutes. Section 12 of such Article is as follows:

“The Board of Navigation and Canal Commissioners is authorized to enter into an agreement or agreements with the purchaser or purchasers of any obligations issued hereunder under the terms of which such Board shall agree to keep all of the improvements and facilities, the revenues of which are pledged to the payment of such obligations, insured with insurers of good standing against loss or damage by fire, water or flood, and also from any other hazards customarily insured against by private companies operating similar properties, and to carry with insurers of good standing such insurance covering the use and occupancy of such property as is customarily carried by such private companies. The cost of such insurance shall be budgeted as maintenance and operation expense and such insurance shall be carried for the benefit of the holders of such obligations.”

Appellant in his brief also relies upon the last sentence of Section 17 of said Article, which provides: “This Act being necessary for and intended to secure the safety, convenience and welfare of the citizens of navigation districts in the State of Texas, shall be liberally construed to effectuate the purposes hereof.”

Appellant also cites Article 8263e, Sec. 75, V.A.T.S., which reads as follows:

‘All navigation districts established under this Act may, by and through the navigation and canal commissioners, sue and be sued in all courts of this State in the name of such navigation district, and all courts of this State shall take judicial notice of the establishment of all districts.”

The law is well settled in this State that navigation districts such as the Navigation District in the present case, are not classed with municipal corporations, but are political subdivisions established by law. They are not liable in actions sounding in tort. Smith v. Harris County-Houston Ship Channel Navigation Dist., Tex.Civ.App.1957, 330 S.W.2d 672, and authorities there cited. We are of the opinion that the procuring by the District of a policy of comprehensive general liability insurance under the provisions of Article 8247a, Secs. 12 and 17, V.A.T.S., did not operate to remove the immunity of the District and its commissioners from tort liability in toto or to the extent of the limits of such policy. Furthermore, Article 8263e, Sec. 75, V.A.T.S., merely provides that a navigation district and its commissioners may sue and be sued in the courts of this State. It does not in any way militate against their governmental immunity.

It seems clear that Article 8247a, Sec. 12, V.A.T.S., does not deprive the Navigation District of its governmental immunity in cases such as the present case sounding in tort. Such Article authorizes the District to enter into an agreement with the purchasers of its obligations and to keep the improvements and facilities pledged to the payment thereof, insured against loss by fire, water, flood, and other hazards insured against by private companies operating similar properties, "for the benefit of the holders of such obligations.” (emphasis supplied) It does not purport to create a new liability on the part of the district nor to deprive it of its governmental immunity. It merely authorizes the procuring of insurance against a liability recognizable by law. Had the State Legislature desired to subject navigation districts to tort liability it could and should have done so. in language of clear and unmistakable import. See Texas Prison Board v. Cabeen, Tex.Civ.App., 159 S.W.2d 523, writ ref., and authorities there cited.

It is equally clear that the District did not waive its governmental immunity nor was it estopped to claim the same by reason of having taken out a liability insurance policy. It is well settled that waiver and estoppel presuppose the existence of legally enforceable rights which, but for the existence of intervening rights and defenses, would permit recovery. Waiver and estoppel are defensive in nature and operate to prevent the loss of existing rights. They do not operate to create liability where it does not otherwise exist. Washington National Ins. Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854; Massachusetts Bonding & Ins. Co. v. Dallas Steam Laundry & Dye Works, Tex.Civ.App., 85 S.W.2d 937, writ ref.; Southland Life Ins. Co. v. Vela, 1949, 147 Tex. 478, 217 S.W.2d 660; 31 C.J.S. Estoppel § 63, p. 397; 22 Tex.Jur.2d, Estoppel, Sec. 2, p. 661. While there may be some cases in other jurisdictions which hold that recovery may be had in a tort action within the limits of a comprehensive liability insurance policy taken out by a defendant claiming governmental immunity, the decisions in this State and in the majority of the states of the Union hold to the contrary. See McGrath Building Co. v. City of Bettendorf, 248 Iowa 1386, 85 N.W.2d 616, and annotations thereunder in 68 A.L.R.2d, p. 1437, at page 1438, where it is said:

“The law on the annotated question may be summarized briefly. In a majority of jurisdictions it is held that the procurement of liability or indemnity insurance by a governmental unit has no effect upon its immunity from tort liability. In support of this view it has been said that the mere fact that a governmental unit is authorized to procure insurance does not warrant the conclusion that its immunity has been removed; that a governmental unit lacks power to waive its immunity or estop itself by procuring insurance; and that liability or indemnity insurance which is procured by a governmental unit entitled to immunity from tort liability is insurance only against torts which do not come within the scope of the immunity — for example, torts committed by the unit while acting in its proprietary, as contrasted with its governmental, character.”

In this State a navigation district can only function in a governmental capacity. In other words, it has no proprietary functions. See State v. Brannan, Tex.Civ.App., 111 S.W.2d 347, writ ref., in which the court said:

“All authority possessed by a state 'is that conferred on it as a sovereignty by the people and consequently it can act in no other capacity than that of a sovereignty. It is inherently and exclusively sovereign and must necessarily act as such at all times and in all capacities. As a sovereignty, it is immune from liability for torts and since it can act in no other capacity than that of a sovereignty, it is necessarily immune from liability for torts at all times and in all its capacities.”

See also Bennett v. Brown County Water Imp. Dist. No. 1, 1954, 153 Tex. 599, 272 S.W.2d 498, in which the contention was made by the petitioners that the district was acting in a proprietary and not a governmental capacity. Our Supreme Court said: “We think this matter has been foreclosed by previous decision of this Court, both by this Court’s opinion, and by our ‘refusal’ of application for writ of error (since 1927) in two cases from the Courts of Civil Appeals.” See also Willacy County Water Control & Imp. Dist. No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936; Jones v. Jefferson County Drainage Dist. No. 6, Tex.Civ.App., 139 S.W.2d 861, writ ref.; Harris County v. Gerhart, 115 Tex. 449, 283 S.W. 139.

It is our view that if the rule of governmental immunity is to be changed or modified in Texas where public liability insurance has been procured by a governmental unit, such change or modification should be made by appropriate state legislation and not by an intermediate appellate court.

Appellant contends that the court erred in granting the Navigation District commissioners a summary judgment since they were also sued in their individual capacities. It is true, of course, that the immunity of the District will extend to and include the commissioners and officers of the District when acting in their official capacity for the District. Torres v. Aransas County Navigation Dist. No. 1, Tex.Civ.App., 346 S.W.2d 903. While appellant could not successfully maintain his action sounding in tort against the Navigation District and its commissioners because of governmental immunity, he could, however, assert and prosecute a negligence action, as he did, against named persons in their individual capacities. Appellant’s pleading named nine certain persons as defendants, and alleged that they were sued “individually, and jointly and severally, for Plaintiff’s damages,” and that defendants Blackmon and Colquitt “Then employed by each of said Defendants as longshoremen * * * were then and there employed as the agents, servants or employees of each and all of said named Defendants, and were working at said time in the furtherance of the business interests of each of said Defendants, separately, alternatively and concurrently.” Appellant also alleged that said defendants ratified the acts of said Blackmon and Colquitt by “acceptance of the benefits” of their acts.

Appellees filed no exception to appellant’s petition and filed no affidavit. They did file an unsworn amended answer in which they pled governmental immunity as a sovereign agency of the state and body politic. The motion for summary judgment filed by the Navigation District and the individually named defendants contains a jurat, but the same is fatally defective in that it fails to show the name of the deponent, if there was one, and, of course, fails to show that any one had personal knowledge of the facts stated in such motion. There is no allegation in appellant’s pleading that the named individual defendants were in fact commissioners or that they were acting as commissioners. There is nothing before us showing that they were acting within the scope of their official duties as commissioners and officers of the Navigation District. On the record before this Court, appellant alleged acts of negligence on the part of the individually named defendants, and a cause of action against them as individuals.

It is probably true, as stated by appellees in their brief, that the individuals named in appellant’s petition as defendants had no legal authority to hire or employ Black-mon and Colquitt to work as longshoremen on City Dock No. 3. We cannot assume, however, that because of such lack of authority, they did not do so. Even though they had no authority or duty to act for the District in their individual capacities, it was possible for them to employ said longshoremen to work for them as individuals. Appellant’s pleading alleges that they did act as individuals through their employees, and appellees have not denied such fact by sworn pleading or affidavit. The burden of proof was on appellees as movants to establish that said named defendants were not acting as individuals but in their official capacity for the District. All doubts as to the existence of a genuine issue of material fact must be resolved against the movant, and the pleadings, depositions and affidavits must all be reviewed in the light most favorable to the party opposing the motion for summary judgment. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., Tex.Sup.1965, 391 S.W.2d 41; Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929; Mecom v. Thompson, Tex.Civ.App., 239 S.W.2d 847, writ ref., n. r. e.

The judgment of the trial court is affirmed insofar as it grants a summary judgment in favor of the Navigation District, but is reversed and the cause is remanded insofar as it grants a summary judgment in favor of the individually named defendants.

Affirmed in part and in part reversed and remanded.


author: NORTHCUTT, Justice.

text:
    Terry ELKIN, Appellant, v. Sylvan SANDERS et al., Appellees.
    No. 7536.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1965.
    Rehearing Denied Dec. 13, 1965.

      Leonard Howell, Lynch & Chappell, Midland, for appellant.
    Crenshaw, Dupree & Milam, McWhorter, Cobb, Johnson & Cobb, Evans, Pharr, Trout & Jones, W. D. Benson, Jr., Lubbock; Carrington, Johnson & Stephens, Walker, Shoptaw & McClain, Dallas, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Waggoner Carr, Atty. Gen., Hawthorne Phillips, Tibby Wright, Paul Phy and J. Gordon Zuber, Asst. Attys. Gen., Austin, for appellees.
   NORTHCUTT, Justice.

This is a will construction case. The principal questions to be decided are (1) which devisees must bear the debts and expenses of administration and in what proportions; and (2) which devisees must bear the estate and inheritance taxes and in what proportion. The answer to these questions rests upon the construction of the will of Lula Elkin Sanders who is hereinafter referred to as the testatrix.

By her will under Provision III the testatrix devised one-half of her separate property to Terry Elkin, her uncle. Under Provision IV of her will she provided as follows:

“All the rest, residue and remainder of my estate, real, personal or mixed, wheresoever situated, I give, devise and bequeath to the Trustees hereinafter named IN TRUST, to be known as the LULA ELKIN SANDERS TRUST, for the following uses and purposes, and upon the following terms and conditions, to-wit:
(a) Said Trust shall be for the benefit of my husband, Sylvan Sanders, during his lifetime, and upon his death, for the benefit of the other beneficiaries hereinafter named.
(b) During the lifetime of my said husband, my Trustees shall manage, collect, hold, invest and reinvest the assets of said Trust, and collect the income therefrom, and shall pay over to my said husband, Sylvan Sanders, from time to time, such portions of the net income of said trust, as, in the discretion of the corporate trustee, shall be sufficient to enable my said husband to maintain the same standard and manner of living that we enjoyed at the time of my death, when taken in connection with the income otherwise available to him. In the event the income from the Trust should, in the discretion of the corporate trustee, at any time be insufficient to enable my said husband to maintain said standard and manner of living, then in such event, the trustees shall pay over to my said husband such portions of the principal of the trust estate as, in the discretion of the corporate trustee, are required to enable him to maintain said standard and manner of living. The discretion of the corporate trustee shall be conclusive as to the necessity of making any such payments from income or principal, and as to the amount of such payments, if any.
(c) Upon the death of my said husband, said Trust shall terminate, and the assets thereof shall pass to and vest in the following beneficiaries to-wit:
(1) Those assets in the hands of the trustees which constituted part of my separate estate at the time of my death and those assets in its hands which represent the proceeds of a sale or exchange of assets which constituted part of my separate estate at such time shall vest one-fourth (}4) in the Juliette Fowler Home at Dallas, Texas; one-fourth (^4) in the Shrine Crippled Children’s Hospital at Dallas, Texas; and one-half (1/2) to Nell Boyd Snyder, if living, and if not to her issue, per stirpes.
(2) All other assets in the hands of the trustees shall vest one-half (J4) in the Lubbock View Christian Church and one-half (J4) in Cal Farley’s Boys Ranch in Tascosa, Texas.”

As to which devisee should bear the estate and inheritance tax and in what proportion the construction of the following provision of the will is in dispute:

“Each charitable organization named as a beneficiary hereunder shall use the assets received by it by virtue hereof within the State of Texas. Each beneficiary of this Will shall bear the proportionate part of any Estate Tax and/or Inheritance Tax imposed on my estate attributable to his or her portion of the estate. (For clarification of this provision, a charity whose bequest qualifies as a charitable deduction for Estate Tax and Inheritance Tax purposes shall not contribute to such Estate Tax or Inheritance Tax). Notwithstanding, the foregoing provision, it is not my will that any Federal Estate Tax or State Inheritance Tax be paid by my said husband, Sylvan Sanders, by reason of the benefits provided for him in this Will, and in the event the said Sylvan Sanders should survive me, said Estate Taxes and Inheritance Taxes shall be paid out of that portion of my estate not devised to my said husband.
My executor and my trustees are directed to take such steps as are necessary to cause the burden of such taxes to be borne as above provided, including the withholding of funds, the diversion of income, or any other steps necessary or appropriate for such purpose.”

The trial court held in part as follows;

“First: In view of the unambigous provisions of the will with reference to the fact that the beneficiaries which are charities are not to have charged against their parts any Estate or Inheritance Taxes, and the interest of Sylvan Sanders is not to he charged with any such taxes, the interests of Terry Elkin and Nell Boyd Snyder are ordered to bear all of such taxes in the proportions heretofore fixed by the Executor of said Estate, and the amounts set forth in the Federal Estate and State Inheritance Tax returns charged to Terry Elkin and the other Beneficiaries are in all things approved by this Court;
Second: The wording of the will of Lula Elkin Sanders, Deceased, when considered as a whole clearly does not grant unto Terry Elkin a specific bequest of property and to the remaining beneficiaries a residual bequest in such a manner as to require all debts and administration expenses to be charged against the interests of the residual beneficiaries exclusively. The court holds and determines that all debts and administration expenses be borne proportionately among all beneficiaries.
Third: The series “E” bonds in the amount of $17,498.00, which were designated in the will of Lula Elkin Sanders, Deceased, as a part of her separate property, are determined and found by the Court to be “or” bonds, and taxable as a part of the Estate for estate tax purposes, and the said taxes are properly apportioned between Terry Elkin and Nell Boyd Snyder in the proportions described in paragraph First, above;”

From that judgment Terry Elkin hereafter referred to as appellant perfected this appeal. Although appellant presents this appeal upon twenty-six assignments of error, we believe, and so hold, that the sole questions here involved are whether the court erred in holding under the will appellant was not granted a specific beqüest of property; and to the remaining beneficiaries a residual bequest in such a manner as to require all debts and administration expenses to be charged against the interest of the residual beneficiaries exclusively; and in holding all debts and administration expenses to be borne proportionately among all beneficiaries; and in holding that all estate and inheritance taxes to be paid from the interest willed to Terry Elkin and Nell Boyd Snyder in the proportions fixed by the executor of said estate.

The first paragraph of the will here involved directed that all her debts be paid. There was no provision made that the debts should be paid from any certain funds or property. The devisees were not personally liable for the testatrix’ debts but those to whom testatrix was indebted could enforce their claims against the property in the hands of the devisees. McFarland v. Shaw, Tex.Com.App., 45 S.W.2d 193. Section 37 of the Probate Code, V.A. T.S., provides when a person dies, leaving a lawful will, all of the estate devised vests immediately in the devisees subject, however, to the payment of the debts of the testator. We are of the opinion, and so hold, the court was correct in this case in holding that all debts be borne proportionately among all of the beneficiaries.

Appellant has chosen to take under the terms of the will in question. Consequently, he must abide by the terms of the will interpreted from its four corners. A testator’s right to bestow his property by will at death is as absolute as a right to convey it during his lifetime. In re Caruthers’ Estate, Tex.Civ.App., 151 S.W.2d 946. It is the contention of appellant that he should not be held responsible for the estate and inheritance taxes as to the “E” bonds which the court held were “or” bonds because such bonds were no part of testatrix’ estate and neither did he receive any portion of said bonds. It was held in the case of Thompson v. Thompson, 149 Tex. 632, 236 S.W.2d 779, as follows:

“ ‘It has been said: “The term ‘death duties’ embraces all duties occasioned by death, and hence embraces probate and estate duties, and also legacy and succession duties. A probate duty and its successor, the estate tax, is a tax upon the transmission of property by a deceased person. Such tax is charged upon the whole estate, regardless of the manner in which it is to be distributed. It is not a tax on what comes to the beneficiaries or heirs, but upon what is left by the decedent. It' is treated as an expense of administration, as a proper disbursement by an executor or administrator, for which he will be allowed credit in his account. The estate tax must be measured by the property transferred by the decedent, that is to say, the net estate ascertained in the manner prescribed, and takes no account of the relationship of the recipient or of the amount he takes. The tax comes into existence before and is independent of the receipt of the property by the legatee or distributee. A tax imposed upon the clear value of the estate passing from any person who may die seised or possessed thereof is an estate tax, and what passes to the heir or devisee and to which he acquires title is his share of the estate remaining after the payment of the tax. * * (Emphasis ours).”

It is stated in the case of Matthews v. Jones, Tex.Civ.App., 245 S.W.2d 974 as follows:

“It is urged by appellants that the will of Percy Jones ‘made no provision, ambiguous or otherwise, as to apportionment of the burden of debts, expenses of administration or taxes among the beneficiaries’ and that ‘the court should have placed the burden, as a matter of law, and not of construction;’ that, as a matter of law, the property devised in trust for the widow should be charged with a pro rata share of such items. The determination of the question here presented hinges upon the intention of the testator as expressed in the will, as evidenced by its terms when considered as a whole if his intent can be determined therefrom.”

In Paragraph X of the will it is provided that each beneficiary of the will is to bear the proportionate part of any estate tax and/or inheritance tax imposed on testatrix’ estate attributable to his or her portion of the estate then proceeds to explain what she meant as to such matters. Testatrix willed an undivided (emphasis ours) one-half of her separate property to the appellant. All the rest of her property she willed in trust for the benefit of her husband, Sylvan Sanders, then it provided that none of the Federal Estate Tax or State Inheritance Tax be paid by her husband, Sylvan Sanders, but that such taxes should be paid out of that portion of her estate not devised to her husband. The will further provided that the beneficiaries which were charities were not to bear any of the taxes. The only ones receiving under the will were those classified as charities, Sylvan Sanders, appellant and Nell Boyd Snyder. Since the charities and Sylvan Sanders were not to pay any of the taxes there was no other property from which to pay the taxes other than that received by appellant and Nell Boyd Snyder. We are of the opinion, and so hold, the testatrix had the right under her will to specify from what property the taxes were to be paid and that the trial court placed the proper construction upon the provisions of the will. We have carefully considered all of appellant’s assignments of error and overrule each and all of them.

Judgment of the trial court is affirmed.


text:
    Dan C. WILSON, Appellant, v. CENTURY PAPERS, INC., Appellee.
    No. 14658.
    Court of Civil Appeals of Texas. Houston.
    Dec. 2, 1965.
    Vinson, Elkins, Weems & Searls, Ross N. Sterling, Richard P. Keeton, Houston, for appellant.
    Hirsch & Westheimer, Charles F. Cock-rell, Jr., Houston, for appellee.
   WERLEIN, Justice.

This is an appeal from the order of the trial court granting appellee, Century Papers, Inc., formerly Houston Paper Company, a temporary injunction restraining appellant, Dan C. Wilson, appellee’s former employee, pending final hearing and determination of this cause, from engaging directly or indirectly in the selling of products within the city limits of the City of Houston, Texas, which, during his employment by appellee, appellant sold or distributed within the limits of such City.

Appellant first went to work for appellee on or about February 10, 1960, and resigned from his employment on or about February 4, 1963, at which time he was employed by Colgate-Palmolive-Peet Company. On or about December 2, 1963, appellant on being re-employed by appellee as a salesman, entered into a written employment contract wherein, among other things, appellant agreed and covenanted that upon the termination of his employment by appellee, however such termination might occur, he would not for the period of two years after the date of such termination engage, directly or indirectly, within a described area in Texas and Louisiana, in the business of selling any of the products which at any time during the course of his employment by appellee he had sold or distributed for ap-pellee, or in respect to which he may have acquired information as to customer lists or requirements or other confidential information as the result of his employment. Appellant worked in such employment until February, 196S, when he voluntarily resigned and went to work as a salesman for Carpenter Paper Company, a competitor of appellee.

The temporary injunction granted by the trial court restrains appellant from engaging directly or indirectly in the selling of products within the city limits of the City of Houston, Texas, which during his employment by appellee he sold or distributed within such city. It is thus seen that the court in granting the injunction greatly restricted the territory covered in the contract of employment, and limited such territory to the City of Houston. The law is well settled in this State that although the territory or period stipulated by the parties may be unreasonable, a court of equity will nevertheless enforce the contract by granting an injunction restraining the defendant from competing for a time and within an area that are reasonable under the circumstances. Lewis v. Krueger, Hutchinson & Overton Clinic, 153 Tex. 363, 269 S.W.2d 798; Spinks v. Riebold, Tex.Civ.App., 310 S.W.2d 668, writ ref.; Weatherford Oil Tool Company v. Campbell, 1960, 161 Tex. 310, 340 S.W.2d 950. It is our view that the contract of employment in question, as limited with respect to territory by the trial court, is not unreasonable with respect to time or area, and is a valid contract.

In the instant case, it is undisputed that in his employment with Carpenter Paper Company, appellant sells the same kind of products in the same area that he had sold while employed by appellee. It is appellant’s contention, however, that when he went to work for Carpenter he was presented a list of accounts by Carpenter’s marketing manager and that from such list he struck off the accounts that he had previously called on when in the employ of appellee. When asked specifically, however, whether he had while working for Carpenter, called on any account that he had serviced under his contract with appellee, he answered in the affirmative. He then explained that the customer was a close friend. He also said there was another instance when a previous customer telephoned him. He further testified that after being employed by Carpenter, he had called on Williams Meat Company “in the capacity of selling them paper products.” When asked if that was the only customer he called on while employed by Carpenter that he had also called on during the time he was employed by appellee, he answered:

“No, sir. In essence, in actually calling on, I have seen quite a few of my previous customers with Houston Paper Company, and not calling on them but as they — well, we’ll say personal relationship with them, calling on them. Not calling on them, but seeing them.
“Not soliciting their business. There’s one instance where I had called on one, we’ll say I had — I didn’t actually call on him, because he is a very close friend of mine, * * * ”

Appellant’s testimony to the effect that he had seen quite a few of his previous customers, calling on them for personal friendship, but not calling on them to solicit their business, coupled with his admission of at least two violations of his employment contract, suggests the probability that some of the good will he had created in his former employment was being diverted directly or indirectly to his new employer. He testified it was easier to sell to friends and that a certain percentage of his personal contacts came about during the period he was employed by appellee. He also testified that the paper business was a highly competitive business. While he worked as a salesman for appellee selling its products within the City of Houston, he made many contacts and established personal relations and friendships with customers, and acquired a knowledge of the manner and methods used by appellee in conducting its business, and obtained lists of customers and I.B.M. sheets showing sales that were made during such time.

The purpose of a temporary injunction is to maintain the status quo in regard to the matter in controversy, and not to determine finally the respective rights of the parties under the cause of action asserted or the defenses urged. James v. E. Weinstein & Sons, Tex.Com.App.1929, 12 S.W.2d 959, and authorities there cited. The status quo to be preserved is the last actual peaceable non-contested status which preceded the pending controversy. Transport Co. of Texas v. Robertson Transports, 1953, 152 Tex. 551, 261 S.W.2d 549. The status quo in the present case was that situation which existed in February, 1965, immediately before appellant went to work as a salesman for appellee’s competitor, Carpenter Paper Company, selling the same kind of paper products that he had sold within the City of Houston when working for appellee, in violation of his contract.

Appellant asserts that the granting of the temporary injunction in question was improper and not necessary to protect the good will and business of appellee, since only lists of customers and no trade secrets were involved, and also because there is no evidence showing any injury to appellee. The cases relied upon by appellant are for the most part cases involving permanent injunctions, such as Grace v. Orkin Exterminating Company, Tex.Civ.App., 255 S.W.2d 279, writ ref., n. r. e. The issues raised by appellant, with respect to there being no necessity to protect appellee by an injunction since only good will and not trade secrets is involved, if meritorious, are such as should be determined upon a hearing on the merits and not on a temporary injunction hearing brought to preserve the existing condition until the case can be tried on the merits. James v. E. Weinstein & Sons, supra; General Drivers, Warehousemen and Helpers Local Union 745 v. Dallas County Const. Employees Association, Tex.Civ.App., 246 S.W.2d 677, writ ref., n. r. e.

In the instant case appellee alleged and proved violations of the employment contract, and thus showed not only a breach by appellant of a valid contract reasonable in time and territory as limited by the court, but also established a probable right of recovery and a probable injury. The law is well settled in this State that the granting or refusing of a temporary injunction is within the sound discretion of the trial court and the court’s action will not be disturbed on appeal unless it clearly appears that the court has abused its discretion. Harding v. W. L. Pearson & Company, Tex.Com.App. 1932, 48 S.W.2d 964; Texas Foundries, Inc. v. International Molders & Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460; Transport Company of Texas v. Robertson Transports, Inc., supra; Southwestern Associated Tel. Co. v. City of Dalhart, Tex.Civ.App., 254 S.W.2d 819, error ref., n. r. e.; 31 Tex.Jur.2d 345, Injunctions, § 224, and cases cited.

The law is equally well settled that if the facts are undisputed and only questions of law are presented, the trial court is required to correctly apply the law to such conceded or undisputed facts. If the court fails to do so, it would be an abuse of the court’s discretion. 31 Tex.Jur.2d, § 224, p. 349; Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722; Dallas General Drivers, etc. v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873; John L. Bramlet & Company v. Hunt, Tex.Civ.App., 371 S.W.2d 787, writ ref., n. r. e.; Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517; Denny v. Roth, 1959, Tex.Civ.App., 296 S.W.2d 944, writ ref. In the present case we have a valid contract and at least two admitted violations thereof. It thus became the duty of the trial court to properly apply the law to the undisputed facts.

It is our view that the trial court did not clearly abuse its discretion in granting the temporary injunction in question. Our courts have upheld almost without exception the validity and enforceability of contracts similar to that in the instant case. See Lewis v. Krueger, Hutchinson & Overton Clinic, supra; Park v. Essa Texas Corporation, Tex.Civ.App., 315 S.W.2d 197, writ ref., n. r. e.; National Linen Service Corp. v. Summers, Tex.Civ.App., 251 S.W.2d 795, writ ref., n. r. e.

In John L. Bramlet v. Hunt, supra, the court said;

“ * * * it is now well established that contracts ancillary to employment involving trades or professions are enforceable, though amounting to limited restraint of trade, where they are reasonably limited as to time and space. Some cases even go so far as to uphold such restrictive covenants, even in the absence of a time limitation, where the agreement is reasonably limited as to area. 13 Tex.Jur.2d Section 189, Pages 398-400, Krueger, Hutchinson & Overton Clinic v. Lewis (Tex.Civ.App.), 266 S.W.2d 885, affirmed 153 Tex. 363, 269 S.W.2d 798; Randolph v. Graham, Tex.Civ.App., 254 S.W. 402, 58 A.L.R. 168. There is no contention made in this case by appellee that the time or space limitation is unreasonable.”

See also Blaser v. Linen Service Corporation of Texas, 135 S.W.2d 509, dism., judg. cor.; Traweek v. Shields, Tex.Civ.App., 380 S.W.2d 131.

We overrule appellant’s second Point to the effect that the trial court erroneously considered certain irrelevant and immaterial evidence with respect to the training given to appellant while he was in the employ of appellee. The facts were all before the court, who tried the case without a jury. It will, therefore, be presumed that the trial court did not consider, but wholly disregarded, any improper evidence which might have been received. Simpson v. Vineyard, Tex.Civ.App., 324 S.W.2d 276; Texas & Pacific Ry. Co. v. Empacadora De Cuidad Juarez, S. A., Tex.Civ.App., 342 S.W.2d 195, writ ref., n. r. e.; Allen v. Robbins, Tex.Civ.App., 347 S.W.2d 362. Moreover, the objection made to such evidence in the trial court was too general to be considered by the court. Zeek v. Gaddy, Tex.Civ.App., 287 S.W.2d 490, writ ref., n. r. e.; Bales v. Delhi-Taylor Oil Corporation, Tex.Civ.App., 362 S.W.2d 388, writ ref., n. r. e.

Judgment affirmed.


author: COLEMAN, Justice.

text:
    Allan J. STAHL et al., Appellants, v. CITY OF HOUSTON et al., Appellees.
    No. 14656.
    Court of Civil Appeals of Texas. Houston.
    Dec. 16, 1965.
    Rehearing Denied Jan. 6, 1966.
    Hugo A. Touchy, Houston, for appellant.
    John Wildenthal, Jr., City Atty., and Homer T. Bouldin, Trial Supervisor, City Legal Dept., Houston, for appellee.
   COLEMAN, Justice.

This is an injunction suit involving the proper interpretation to be given various statutory provisions concerning examinations for promotion in the Fire Department of the City of Houston, Texas. Petitioners also sought a declaratory judgment.

The Civil Service Commission of the City of Houston announced an examination to be held for the classification and position of Assistant Fire Chief, Grade IX. In the original announcement the examination was opened to Deputy Chiefs who had been so classified for two continuous years immediately prior to the date of the examination. It developed that only one of the deputy chiefs having the required time in the grade desired to take the examination. The Commission then amended its announcement to include “all Deputy Chiefs in the Fire Department whether they meet the two year ingrade requirement or not.”

Appellants are two District Chiefs occupying Grade VII positions in the salary classification, who brought this suit individually as representatives of a class, to enjoin the holding of the examination unless all district chiefs, who had served as such for two years prior to the date set for the examination, were permitted to participate in the examination. There was testimony that there were approximately forty district chiefs who would be eligible to take the examination. The trial court denied the injunction and this appeal resulted.

The trial court found that there were eight Deputy Chiefs, who had served more than two years as District Chiefs, and who had received their promotions to Class VIII from Class VII as a result of competitive examinations. He found that four of the Deputy Chiefs desired to take the examination, but the evidence is uncon-tradicted that three of these men had not served two years as Deputy Chiefs.

The trial court concluded as a matter of law that the Commission acted in its discretion in limiting the examination to- Deputy Chiefs; that the District Chiefs do not as a matter of law have the right to take such examination; and that the pleadings of the plaintiffs and the evidence are insufficient to make the suit a class action.

The provisions of the Firemen’s and Policemen’s Civil Service Act, Article 1269m, Vernon’s Ann.Civ.St., which control the disposition of this suit, read as follows;

“Sec. 8. * * * No classification now in existence, or that may be hereafter created in such cities, shall ever be filled except by examination held in accordance with the provisions of this law. * * *
“Sec. 9. The Commission shall make provisions for open, competitive and free examinations for persons making proper application and meeting the requirements as herein prescribed. All eligibility lists for original positions in the Fire and Police Departments shall be created only as a result of such examinations, and no appointments shall ever be made for any position in such Departments except as a result of such examinations, which shall be based on the applicant’s knowledge of and qualifications for fire fighting and work in the Fire Department, or for police work and work in the Police Department, as shown by competitive examinations in the presence of all applicants for such position, and shall provide for thorough inquiry into the applicant’s general education and mental ability. * * *
“Sec. 10. When a vacancy occurs in the Fire Department * * *, the Fire Chief or head of the Fire Department * * * shall request in writing from the Commission, the names of suitable persons from the eligibility list, and the Director shall certify to the Chief executive of said City, the names of three (3) persons having the highest grades on the eligibility list, and the said chief executive shall thereupon make an appointment from said three (3) names. * * *
“Sec. 14. The Commission shall make rules and regulations governing promotions and shall hold promotional examinations to provide eligibility lists for each classification in the Police and Fire Departments, which examinations shall be held substantially under the following requirements :
“A. All promotional examinations shall be open to all policemen and firemen who have held a continuous position for two (2) years or more in the classification immediately below in salary of that classification for which the examination is to be held; except where there is not a sufficient number of members in the next lower position with two (2) years service in that position to provide an adequate number of persons to take the examination, the Commission may extend the examination to the members in the second lower position in salary to that for which the examination is to be held.
“* * *
“D. * * * No person shall be eligible for promotion unless he has served in such department for at least two (2) years immediately preceding the day of such promotional examination in the next lower position or other positions specified by the Commission, * * *
«* $
“F„ The Commission shall proceed to hold examinations to create eligibility lists within ninety (90) days after a vacancy in any classification occurs, or new positions are created, unless an eligibility list is in existence.”

It is undisputed that there was no existing eligibility list from which an appointment could be made to the vacant position in Grade IX. As required by this Act, the Commission ordered an examination to establish an eligibility list, and, finding that there were not men having the required two years in the next lower salary grade, Grade VIII, desiring to take the examination to make it competitive or to furnish the three men required for an eligibility list, in the exercise of what they considered to be their discretionary authority, the Commission opened the- examination to those men in Grade VIII having less than two years tenure, rather than to the men having two years tenure in Grade VII as authorized by the Civil Service Act.

Looking to the entire Act, it seems clear that a competitive examination, in which more than three persons participate, is required to establish an eligibility list. The examinations must be held in accordance with this Act. The examination is to be given persons making application and meeting the requirements of this Act. The examination shall not only test the applicant’s knowledge of fire fighting and the work of the Fire Department, but also his general education and mental ability. The importance of this latter provision is heightened by the language of the Act and by the fact that to the grade made on the examination is added points based on seniority and efficiency in grade.

The" Act provides that where an insufficient number of men meeting the in-grade requirement apply to take the promotional examination to make it competitive, the Commission may open the examination to the second lower grade. A consideration of other provisions of the Act lead us to the conclusion that the provision is mandatory in nature. There is no provision authorizing deviation from the ingrade requirement except that providing for opening the examination to the second lower grade. If the examination were opened only to those in the first lower grade, where there is an insufficient number of applicants meeting the ingrade requirement, there would still be an insufficient number of qualified men to form an eligibility list because of the provision that no person can be eligible for promotion unless he has two years service in the next lower position “or other positions specified by the Commission.” It would be unreasonable to construe this latter provision to mean that the Commission could specify service in any position as meeting this requirement; rather it should be construed as meaning service in the other grade, members of which were permitted to take the examination. The qualification for appointment to a higher grade could be no less stringent than the qualifications required of a candidate for the promotional examination. This interpretation would permit all members of Grade VIII and Grade VII who had two years service in either grade or the two grades combined.

It is evident that the Legislature considered service in the next lower position an important consideration in determining eligibility for promotion. It also considered the length of service necessary before it could be given particular significance. Obviously, the fact that a person in Grade VIII had been promoted to that grade by examination was not considered significant or else no particular length of service in grade would have been required. The Legislature has determined that a person in one grade should have no preference over one in the next lower grade, insofar as eligibility for promotional examinations is concerned, until he has served in that grade for two years. While it may be argued that it is essentially unfair to permit one in Grade VII to be promoted to Grade IX over one who has advanced to Grade VIII by competitive examination, the purpose of the law has been declared by the Act to be to secure to the cities subject to its provisions efficient fire departments composed of capable personnel, free from political influence and with permanent tenure. We are unable to see how the efficiency of the department can be impaired if appointment procedures are followed in connection with our construction of this Act. Wider participation in promotional examinations would be likely to promote the avowed purpose of securing capable personnel, free from political influence, particularly in view of the weight given to tenure and proficiency in determining the eligibility list grades.

Appellee specially excepted to appellants’ petition for the reason that it did not contain the necessary allegations of fact required for a class action. The record does not reflect that this exception was brought to the attention of the trial court. The judgment entered by the trial court, however, neither sustained the exception, abated the suit, nor dismissed the suit, but rather recited that the court, after considering the pleadings, and hearing the evidence and argument of counsel, was of the opinion that the plaintiffs were entitled to no relief and, therefore, rendered judgment that plaintiffs take nothing.

A pleading denying the legal capacity of the plaintiff to sue, or to recover in the capacity in which he sues, must be verified by affidavit. Rule 93, Texas Rules of Civil Procedure. The defendants filed no such pleading in this case.

The trial court found that the pleading did not allege, nor the evidence establish, the facts necessary to a class action. The judgment entered was on the merits and not the dilatory plea.

Appellants also brought the suit in their individual capacity and defendants filed no pleading challenging their right. There are no cross-points or counter-points in appellees’ brief challenging their right to sue in their individual capacities.

It is the opinion of this Court, therefore, that, under the existing circumstances, the order of the Commission extending the examination to those members of Grade VIII having less than two years ingrade, without also extending it to all members of Grade VII having two years ingrade, was invalid and the trial court erred in refusing to enjoin the holding of this examination unless it was extended to the eligible members of Grade VII.

Since the order calling this examination was invalid because the Commission exceeded its authority, the Court assumes that the Commission, in obedience to its statutory duty, will speedily order another examination extended to such members of the Fire Department as are currently qualified under the Act as construed herein. We, therefore, reverse the judgment of the trial court and remand the cause for the entry of a judgment consistent with this opinion.

Reversed and remanded with instructions.

      . Emphasis added throughout the quotation.


author: DENTON, Chief Justice.

text:
    MOUNTAIN STATES MUTUAL CASUALTY COMPANY, Appellant, v. Sylvia REDD, a feme sole, Appellee.
    No. 7544.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 29, 1965.
    Rehearing Denied Dec. 20,1965.

      Cade & Bowlin, Lubbock, for appellant.
    Huff & Bowers, Lubbock, for appellee.
   DENTON, Chief Justice.

This is a workmen’s compensation case. Sylvia Redd, surviving widow of Raymond Redd, was awarded statutory death benefits under the Workmen’s Compensation Act for the death of her husband. The jury found Redd received an accidental injury in the course of his employment with Mathis Irrigation Service on April 28, 1964. From a judgment, based on this jury verdict, Mountain States Mutual Casualty Company, the employer’s insurance carrier, has perfected this appeal.

Raymond Redd, shop foreman for Mathis, had been employed by that concern since June of 1961. The company was in the business of overhauling and repairing irrigation motors. On the morning in question G. T. Reed, the manager of the Mathis Company, went by Redd’s home and took him to work between 7:15 and 7:30 a. m. There is no testimony that Redd was experiencing any physical difficulties or abnormalities prior to the time he went to work. Mr. Reed, the only other person on the premises when Redd became ill, testified to the events leading up to the time he called Redd’s wife and had an ambulance summoned. Redd was in the process of mounting a generator bracket on the irrigation motor when Mr. Reed noticed that Redd “wasn’t getting along too well.” He explained that Redd “in that particular case that morning he did have some trouble getting the bolts lined up.” In reply to a question as to what called his attention to Redd’s difficulty with the motor Reed testified: “Well, because I heard him make some remarks about it not going on just right, is one thing.” He further testified that a person would exert himself in performing the work Redd was doing at the time. This incident occurred “just a few minutes” after Redd started work that morning. Shortly thereafter, Reed had an indication that Redd was not rational when he referred to a certain kind of pulley that went on the clutch shaft. According to Reed it was common knowledge in the trade that a “flange” was placed on the clutch shaft rather than a “pulley” and that Redd, an experienced mechanic, knew the difference. He then noticed Redd could not pronounce the name of Warren Mathis, the owner of the business. This disturbed Reed and he then called Mrs. Redd and informed her of her husband’s condition. When Mr. Reed returned to the working area he found that Redd had left the motor and had gone to the restroom. He had one shoe off and was “clinging at his trousers this way with his hands” and was vomiting. Redd died in the hospital twenty days later.

The attending physician testified the cause of death was due to intracerebral and subarachnoid hemorrhage secondary to ruptured berry aneurysm. While the doctor testified no particular amount of exertion was required to cause the cerebral hemorrhage; he positively testified that it was his opinion that there was a relationship between Redd’s work and the hemorrhage and that his work was a producing cause of the hemorrhage and death. There was no medical testimony to the contrary offered.

The principle question is whether or not Redd received an accidental injury in the course of his employment. Appellant’s points of error contend there is no evidence and insufficient evidence to support the trial court’s judgment. In passing upon these points we are governed by the rule laid down in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

It is well settled that a workman can recover compensation benefits if a job incident contributes to cause his incapacity or death. Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026. It is also settled that compensation benefits are recoverable if the workman as a result of exertion or a strain on the job sustains hemorrhage, ruptures, or heart attacks notwithstanding the fact predisposing factors contributed to the incapacity or death. United States Fidelity & Guaranty Co. v. Herzik (Tex.Civ.App.), 359 S.W.2d 914 (Refused, NRE); Traders & General Ins. Co. v. Rooth (Tex.Civ.App.), 268 S.W.2d 539; Traders & General Ins. Co. v. McDaniel (Tex.Civ.App.), 305 S.W.2d 659; Texas Employers’ Ins. Ass’n v. McGrady, (Tex.Civ.App.), 296 S.W. 920 (Writ Dismissed).

It is uncontradicted that Redd suffered the cerebral hemorrhage on his employer’s premises while in the course of his employment. The question of whether the hemorrhage which caused his death was precipitated by a strain or exertion by the work being performed by Redd was a question of fact, and it was answered favorably to the claimant by the jury. A similar question was before the court in Texas Employers’ Ins. Ass’n v. McGrady (Supra). In discussing this question the court used the following language:

“If a rupture results from lifting a heavy weight by a healthy person, it is because the exertion is too great for one in that physical condition. The legal principle is the same if the rupture results from lifting a lighter weight by a person of less strength, whether the reduced strength is the result of natural or diseased conditions. Whatever the physical condition of the individual may be, if it is such that it requires some physical exertion or strain to cause the rupture the injury may properly be classed as an accidental one.”

The testimony of G. T. Reed that Redd was not getting along too well while working on the motor; that he was having trouble getting the bolts lined up; and that the work being performed by Redd required physical exertion, together with the medical testimony was sufficient to show the causal connection between the work he was performing and his death which resulted from the hemorrhage. It has been held strain or exertion sustained by the employee in the course of his employment is regarded as an accidental injury. Midwestern Ins. Co. v. Wagner (Tex.Civ.App.), 370 S.W.2d 779 (Refused, NRE); Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581.

The evidence supports the jury finding that Redd’s death resulted from an accidental personal injury sustained in the course of his employment and that the jury verdict was not so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

All of appellant’s points of error have been considered, and it is our conclusion that they present no reversible error. The judgment of the trial court is affirmed.


text:
    Iris PUZICH, Appellant, v. Paul PUZICH, Appellee.
    No. 7532.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 13, 1965.
    Reynold M. Gardner, Amarillo, for appellant.
    ' Miller, Sanders & Baker, Amarillo, for appellee.
   DENTON, Chief Justice.

The appellant Iris Puzich obtained a divorce from appellee Paul Puzich, and the appellee was awarded custody of their minor daughter on a cross-action. The trial court, in a non-jury trial, also divided the community property and allowed appellant her attorney’s fees. The plaintiff below appeals from that portion of the judgment awarding custody of the minor child to appellee, defendant below. The record contains no findings of fact, conclusions of law, or a statement of facts.

Appellant contends that the portion of the judgment which grants her a divorce on one hand and that portion which denies her custody of the child are inconsistent and in conflict; that the facts do not support the action of the trial court in awarding custody to appellee; and that the trial court abused its discretion in awarding custody to ap-pellee.

The contention that appellant having been granted a divorce from appel-lee on the ground of cruel treatment she should not be deprived of the custody of their minor child has been specifically rejected by Norris v. Norris (Tex.Civ.App.), 46 S.W. 405. There the court upheld the judgment of the trial court awarding the custody of one child to the father and one child to the mother, who was granted the divorce. The court was of the opinion the trial court did not abuse its discretion under the record. In the instant case where there is no statement of facts, the trial court’s custody award would be much less subject to reversal.

All of appellant’s points of error have to do with the question relating to the sufficiency of the evidence presented to the trial court. It is elementary that in the absence of a statement of facts it must be presumed on appeal that there was sufficient evidence to support the findings and the judgment of the trial court. Goforth v. Goforth (Tex.Civ.App.), 335 S.W.2d 281; Gilleland v. Meadows (Tex.Civ.App.), 351 S.W.2d 656; Insurance Company of St. Louis v. Bellah (Tex.Civ.App.), 373 S.W.2d 691. It is an exceptional case in which an appellant is entitled to a reversal of a trial court’s judgment in the absence of a statement of facts. Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600. This is not such a case, particularly where the very crux of the question involves the sound discretion of the trial court. In the absence of a statement of facts, there is nothing for this court to review to determine whether or not there was an abuse of discretion.

Upon consideration of this record as a whole and as presented here without a statement of facts, we are unable to hold there is any reversible error shown. City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860. We affirm the judgment of the trial court.


author: BELL, Chief Justice.

text:
    Robert GOLD et al., Appellants, v. EASTRIDGE TERRACE DEVELOPMENT CORP. et al., Appellees.
    No. 14484.
    Court of Civil Appeals of Texas.
    Dec. 9, 1965.
    Rehearing Denied Jan. 6, 1966.

      Hugh E. McGee, Jr., Houston, for appellants.
    Sam L. Sterrett, Jr., Houston, for appel-lee Home Title Co.
   BELL, Chief Justice.

Appellants sued appellees to recover $90,-000.00 which represented the purchase price of an 80 acre tract of land lying in Harris County. Appellee, Home Title Company, was sued on the theory that it had agreed with appellants to withhold on their behalf so much money per lot as each lot was sold and that it had failed to do so. At the conclusion of appellants’ testimony the court instructed the jury to return a verdict for appellees that appellants take nothing. Judgment on such verdict was rendered in favor of appellees.

By general warranty deed dated August 12, 1954, J. M. Ballard, Thad A. Simmons, Robert Gold and Dan Shaklovitz, Jr., who, with the exception of Shaklovitz, are appellants, conveyed to Eastridge Terrace Development Corporation, herein called Eastridge, a described 80 acres of land. The deed actually described a 100 acre tract and recited it was the same property described as Tract I in a deed from Joe All-britton to the grantors dated December 28, 1953. The deed to Eastridge excepted in favor of Allbritton certain specified lots and blocks shown “on a preliminary plat prepared by Thos. D. Heaney.” The plat does not appear in the record and we are unable to locate such lots and blocks. This last fact was one thing that troubled the trial court. It seems conceded, however, that the land excepted amounted to 20 acres. The deed to Eastridge also conveyed the grantors’ rights to an option they had to purchase from Allbritton Tracts II, III and IV described in the deed from Allbrit-ton to appellants. Tract II contained 92.83 acres. Tract III contained 150.6 acres. Tract IV contained 53.30 acres. Allbrit-ton is an appellant, he having succeeded to the rights of Shaklovitz. Though we will hereafter, for purposes of brevity, refer to acts of appellants, Allbritton was not a party to said acts, but after they occurred succeeded to Shaklovitz’s interest. The deed into Eastridge in form appeared to be a cash transaction. The property was owned in equal shares by grantors prior to the conveyance to Eastridge.

By a written agreement dated the same day as the deed to Eastridge between appellants and Eastridge, Eastridge agreed to pay appellants jointly for Tract I the sum of $90,000.00. The paragraph setting this out reads as follows:

“You have agreed to pay us jointly the sum of $90,000.00 out of the net proceeds received by you from any sale or sales of the lots into which said Tract I may be subdivided, which sum shall be so paid us jointly at the rate of $300.00 per lot sold until said sum has been paid in full, as and when sold.” (Emphasis ours unless otherwise stated.)

The agreement goes on to provide that in addition to the $90,000.00, Eastridge will pay to appellants 25% of the net profits, such profits to he computed after taxes measured by income. It is further provided “ * * * that without limiting the meaning of net profits * * * net profits shall not he deemed to have accrued or been earned until the full amount of any and all costs of acquisition, development and other outlays of a capital nature * * * have been recovered back.”

Following the above is this material provision :

“It is agreed that any rights accruing to us hereunder shall be and are subordinated to any loans and liens securing same which you may make for the development and/or subdivision of said properties.”

In form the agreement was a letter addressed to Eastridge, signed by appellants, and then Eastridge approved it by signing it.

On July 12, 1955, the above agreement was modified. The agreement recites the previous agreement by Eastridge to pay appellants out of the net proceeds from the sale of lots in Tract I at the rate of $300.00 per lot out of the net proceeds received from the sale of the lots. Then follows this provision:

“It is hereby agreed that you (Eastridge) shall not be obligated to pay us any amount on the sale of the first 80 lots covered by such agreement, and/or your collection of the sales price thereof; however, after you have sold and collected the sales price for 80 of said lots, then you shall pay the sum of $600.00 per lot, until said $90,000.00 has been paid in full, as and when such lots are so sold and the full sales price is received as otherwise set out in such letter.”

This agreement also provides that “ * * * except as expressly modified, such letter agreement of August 12, 1954, shall remain in full force and effect as therein set out.”

This letter, signed by Allbritton, recited his succession to the rights of Shaklovitz.

The position of appellants here is that the record shows that all lots in Tract I were sold and each one sold, after the first 80 lots, sold for an amount in excess of $600.00 and brought far more, in the aggregate, than $90,000.00. They contend that if the “net proceeds” were less than this, the burden of proving debts, expenses, etc., that reduced the gross sales price was on appellees. Home Title contends it never agreed to withhold any proceeds, and if it did, the agreement was not in writing and was unenforceable, because within the Statute of Frauds, Article 3995, Vernon’s Ann.Tex.Civ.St. It contends further that payment was to be made out of the “net proceeds” from the sale of lots; that appellants’ rights were subordinate to any loans and liens securing same given for the subdivision and development of the property, and the burden of proving there were any “net proceeds”, that is, proceeds over and above expenses of subdividing and development and other expenses, was on appellants and the record is devoid of any such proof.

Eastridge contended the same in the trial court, as does Home Title here, except for the Statute of Frauds, though Eastridge has filed no brief here.

There is no contention here that the agreement of July, 1955, changed the method of payment except no payment was to be made on the first 80 lots sold and thereafter payment was to be $600.00 per lot sold instead of $300.00. The result is that after the first 80 lots were sold the sum of $600.00 out of the “net proceeds” derived from the sale was to be paid appellants and all of appellants’ rights were subordinate to any loans made in the development of the property.

We have reached the conclusion that the burden of proof was on appellants to prove there were “net proceeds” from the sale of lots into which Tract I was subdivided, before they could recover. It appears from the evidence that there were loans made to finance the development of the property and there is no evidence showing the sale of lots for amounts in excess of the charges against them. The contract upon which appellants sue entitles them to payment only if there are “net proceeds”. While the term “net proceeds” is not specifically defined, the contract by its provision subordinating any of appellants’ rights to any loans and loans and liens securing same made by Eastridge in developing and subdividing the property means there would be no net proceeds from the sale of lots until payment of such loans, or the part allocable to each lot, was made. Mercantile National Bank at Dallas v. McCullough Tool Co., 152 Tex. 471, 259 S.W.2d 724.

This holding makes it unnecessary to pass on the question of whether Home Title Company made the agreement it did and if so whether it was within the Statute of Frauds.

Affirmed.


author: TIREY, Justice.

text:
    Ovid H. YOUNGBLOOD et al., Appellants, v. A. O. BULLOCK et ux., Appellees.
    No. 4378.
    Court of Civil Appeals of Texas. Waco.
    Nov. 4, 1965.
    Rehearing Denied Nov. 24,1965.
    Strasburger, Price, Kelton, Miller & Martin, Eugene Jericho, Dallas, for appellants.
    Bryan, Wilson, Olson & Stem, Waco, for appellees.
   TIREY, Justice.

The Bullocks brought this action against Ovid H. Youngblood, individually, and Youngblood’s, Inc., and alleged that the operation by the defendants of a by-products plant owned and operated by defendants constituted a nuisance. The verdict was favorable to plaintiffs and the court overruled the defendants’ motion for judgment notwithstanding the verdict and granted plaintiffs’ motion for judgment. We affirm the judgment of the lower court.

Plaintiffs’ points 1 and 2 are substantially to the effect that the Court erred: (1) In refusing to grant defendants a new trial because of the inflammatory and prejudicial remarks made by plaintiffs’ attorney in the presence of the jury; (2) In refusing to grant defendants a new trial because of the inflammatory and prejudicial remarks made by plaintiffs’ attorney in his closing argument to the jury.

While the plaintiff, A. O. Bullock, was on the witness stand and was being cross-examined by defendants’ counsel, Mr. Olson made the following objection:

“If it please the court, we are again going to renew our objection on the grounds that we postponed this case over a year in an attempt — and Mr. Sheehy knows this — in an attempt to correct this situation over a year. This case was filed, as the evidence shows, back in early 1963 and we have postponed this case for over a year in an attempt to correct it and it’s worse now than it’s ever been.”

Defendants’ counsel objected to the above statement, and approached the bench and presented its motion for mistrial on the ground that the foregoing statement was inflammatory and prejudicial and having been made in the presence of the jury. The court overruled defendants’ motion for mistrial and instructed the jury as follows:

“Motion for Mistrial overruled. (Jury returned) Ladies and gentlemen, just before our going into Chambers, Mr. Olson had made an objection that the Court is now instructing you, as ladies and gentlemen of the jury, will disregard this objection and the statement contained in this objection. All right, let’s proceed.”

We think the court’s instruction cured the error, if any.

Perhaps we should say that defendants had tendered expert and lay witnesses to prove up one of their prime defenses, which was that great time and expense had been expended by defendants to cure odors that came from defendants’ plant, and at the time of the trial, new equipment was being installed. One witness testified to the effect that defendants’ plant was modern; that it was being operated in a sanitary manner, and devices were already in operation to eliminate odors, and at the time of trial more equipment to further eliminate odors was being installed. Dr. Atkins, City Health Officer, testified to the effect that he had inspected the place several times, and he found nothing in the operation of the plant that would endanger the public health of the community, and that all health and sanitary regulations were being complied with as to the operation of the plant.

Point 2 is grounded on the closing argument made by Mr. Olson, one of the attorneys for plaintiffs, in which he made the following argument to the jury:

“Now, ladies and gentlemen of the jury, there is another matter that I want to go into with you and that’s this matter of the offer of $40,000. Mr. Jericho spent so much time on that Mildred said was made. You know an offer is an unusual thing. I don’t know whether it was made to her or not; she says that it was, so I assume she recalled that situation correctly. I wonder if it’s a fair statement to make that if somebody casually comes down and says, ‘I’ll give you $40,000’ shortly before a lawsuit is coming up for trial. I wonder if it’s a fair statement to make, who an offer like that was made by, if he could prevent a lawsuit like this; if such an offer was made. Or was it made for the purpose of asking her the question, ‘Was that offer made to you?’ Those are things I think this jury can take into consideration.”

Immediately after the argument was made defendants’ counsel, in open court, approached the bench and objected to such argument, asked for an instruction and moved for a mistrial, based upon the inflammatory remarks by plaintiffs’ attorney, all of which was overruled by the court. Only the quoted part of the argument is shown in the bill of exception.

In connection with point 2, we think we should state that the following testimony was tendered as to the value of the property before and after the building of the processing plant. Plaintiff, A. O. Bullock, testified that the property before was worth $40,000, and after $20,000. George Donaldson placed the value before $44,500, and after $25,125. Mrs. Bullock placed the value of the property before $45,000, and after the building of the plant, at $20,000. J. D. Moore, an experienced real estate salesman, placed the value before at $32,250, and after $32,250; Ben Brown, an experienced real estate agent, placed the value before at $32,000 and after $32,000. The jury found the value before $42,500, and after, $39,750.

In connection with point 2, we think perhaps we should state that Mrs. Bullock testified on cross-examination to the effect that she turned down an offer of $40,000 during the summer before the trial; that the offer was made by Leon Thompson who is connected with the Citizens National Bank as its farm man, and that he was seeking the information for another man who wanted to establish a chicken farm near the City of Waco; that she told Mr. Thompson that she had more in the property than that; that she would not sell it for that, and that she felt that the property was worth more than $40,000, and that at the time of the trial she felt it was worth more than $40,000. She testified specifically:

“Q. But you feel like now your acreage with improvements on it is worth more than $40,000 ? Today or last summer or last month ?
“A. Well, I don’t know what it would be worth as far as actually — like a real estate. I know what I have in it and what I would have to pay and what I paid for the other property and what I got and what I got in this one.
“Q. Well, would it be fair to put it this way, that within the last few months you’ve been offered $40,-000, and you wouldn’t sell it for that and that you, in your own mind and heart, feel that it’s worth more than $40,000 on the market ?
“A. I’m sure it’s worth more. I’m sure it would be to a real estate guy.”

We are of the view that appellants’ points 1 and 2 do not constitute reversible error under the doctrine announced by our Supreme Court in Aultman et al., v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, points 2 and 3. In that case we find this statement of the rule:

“Before a judgment is reversed because of argument of counsel two things must appear; the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause , and probably did cause the rendition of an improper judgment in the case.”

It is true that Mrs. Bullock testified on direct-examination that her property was worth $45,000 before and only $20,000 after the building of the processing plant, yet, she testified she had had an offer of $40,-000 in the summer before the trial, and she thought it was worth more than that at the time of the trial. Her testimony on cross-examination as to what the value of the property was, and about the offer that was made, was not questioned by the plaintiffs nor the defendants, and since the jury found that the value of the property before was $42,500, and after the building was placed thereon to be $39,750, we do not see how the defendants suffered any damage by reason of the argument made by plaintiffs’ attorney; the jury must have been impressed with Mrs. Bullock’s testimony on cross-examination because of the fact that they placed the after value at $39,750.00, such sum being only $250 less than the $40,-000 that she said she was offered for the property in the summer. We see no merit whatsoever in appellants’ points 1 and 2 and each is overruled.

We have carefully considered the evidence tendered in this cause and think it is sufficient to support each and every finding by the jury. We have also considered each of the other points assigned by appellants and we are of the view each is without merit and each is overruled.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Phillip D. ALLEN, Individually and d/b/a Allen Mfg. Company, Appellant, v. CITY OF HOUSTON et al., Appellees.
    No. 4431.
    Court of Civil Appeals of Texas. Waco.
    Nov. 18, 1965.
    M. G. Nahas, Jr., Bert E. Derden, Houston, for appellant.
    John Wildenthal, Jr., City Atty., Ralph A. Keen, Asst. City Atty., Houston, for ap-pellees.
   McDONALD, Chief Justice.

This is an appeal by defendant Phillip D. Allen from a personal judgment for personal property taxes for 1955 through 1957 in favor of plaintiffs, City of Houston and Houston Independent School District.

Plaintiffs sued “Phillip D. Allen, individually and doing business as Allen Mfg. Co.,” and “W. A. Plaster” for certain personal property taxes owing for the years 1955 through 1957 inclusive.

Defendant Allen answered that he and Plaster were partners, owning 1/2 interest in the partnership of Allen Manufacturing Company during 1955 and 1956; and further alleged that on December 3, 1956 the partnership dissolved and that Allen Manufacturing Company was incorporated; and that the corporation took over all assets and liabilities of the prior partnership; and the corporation only is liable for the 1957 taxes; and prayed that plaintiffs take nothing against him.

Defendant Plaster answered that Allen Manufacturing Company was incorporated on December 3, 1957 and the corporation only was liable for taxes after such date; and further that he was not made a party to the suit until more than 4 years after the taxes sued for became delinquent; and prayed plaintiffs take nothing as to him.

Trial was before the court without a jury which, after hearing dismissed the cause as to defendant Plaster “by reason of the fact he was not made a party to said suit until after the running of the statute of limitations;” and entered judgment against defendant “Phillip D. Allen, individually and doing business as Allen Manufacturing Company” for $1857.32 (taxes, penalty, in-terst and attorneys’ fees on the personal property sued on for 1955 through 1957).

Defendant Allen appeals, contending: 1) The trial court erred in rendering judgment against him for the years 1955 through 1957 because the business was incorporated “Around December 3, 1956,” and the 1957 taxes were the liability of the corporation only. 2) The corporation agreed to take over all liabilities of the partnership which included the taxes sued for, and is alone liable for such taxes.

Plaintiffs sued “Phillip D. Allen, individually and doing business as Allen Mfg. Co.,” and “W. A. Plaster,” and alleged that each of them “own or claim some interest in” certain described personal property situated in Harris County, Texas, upon which the itemized taxes for the years 1955 through 1957 had not been paid. Plaintiffs prayed for judgment for such 1955 through 1957 taxes, together with penalty, interest and attorneys’ fees.

The proof showed that during the years 1955 through 1956 defendant Allen was a partner in the property with W. A. Plaster; and continued as a partner with Plaster until January 10, 1957, when the partnership was dissolved and the business was incorporated. The property was owned by the partnership all during 1955, 1956, and until January 10, 1957. Each member of the partnership is individually liable for all of the taxes on the property for the years 1955 and 1956; and for the year 1957, since ownership of the property was in the partnership on January 1, 1957.

Any agreement of the corporation to assume liability for the partnership’s debts, does not relieve the partnership and its members of liability for taxes owed to the plaintiffs.

The judgment is correct. Defendant’s points and contentions are overruled.

Affirmed.


text:
    Brunies SNEAD, Appellant, v. H. E. BUTT GROCERY COMPANY et al., Appellees.
    No. 4311.
    Court of Civil Appeals of Texas. Waco.
    Nov. 4, 1965.

      Bedford D. Edwards, Waco, for appellant.
    Jones, Boyd, Westbrook & Lovelace, Waco, for appellees.
   McDONALD, Chief Justice.

This is an appeal by plaintiff from a take-nothing judgment in a slip and fall case.

Plaintiff Snead sued defendant Grocery Company for damages for personal injuries sustained by her when she slipped and fell in defendant’s store.

Trial was to a jury which found that water was on the floor inside the entrance to defendant’s store; that defendant’s employees knew of the water on the floor; that defendant’s employees’ failure to remove and mop up the water was negligence, proximately causing the accident. The jury further found that the condition of the floor inside the door of defendant’s store was open and obvious; that plaintiff failed to keep a proper lookout; and that such failure was a proximate cause of the accident.

The trial court entered judgment on the verdict that plaintiff take nothing.

Plaintiff appeals on 7 points, contending:

1) There is no evidence, or insufficient evidence, to support the jury’s finding that plaintiff failed to keep a proper lookout (which proximately caused the accident) ; and that such findings are against the great weight and preponderance of the evidence.
2) The answer to Issue IS is in conflict with the answers to Issues 16, 17, 18, 19 and 20.

We revert to plaintiff’s 1st contention. The record reflects that on the day of the accident it had been raining, and plaintiff waited for it to stop before going to shop for her groceries. The water plaintiff slipped in was about 3 feet inside the door and was practically all across the entrance of the door. Another witness had seen the water and stepped over it as she entered the store. Plaintiff testified she “didn’t know the water was there”; “I wasn’t looking down.” Photographs in evidence reflect an open area in front of the door which was clearly visible. Proper lookout is ordinarily a question for the trier of facts, in this case the jury. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273.

We think the jury had a right to conclude that plaintiff did not keep a proper lookout, and that such was a proximate cause of the accident. We think such finding supported by ample evidence, and from the record as a whole not contrary to the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Plaintiff’s 2nd contention complains that the jury’s finding to Issue 15, that the condition of the floor was open and obvious is in conflict with the findings to Issues 16, 17, 18, 19 and 20.

Plaintiff did not assign such alleged conflict with Issues 19 and 20 in her motion for new trial, for which reason any possible conflict is waived. St. Paul Fire & Marine Ins. Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744. Issue 16 found that plaintiff had no knowledge of the water on the floor; Issue 17 found plaintiff did not fully appreciate the danger of walking into the water; and Issue 18 found plaintiff did not voluntarily expose herself to known or appreciated danger. We fail to perceive that such findings conflict with the finding that the condition of the floor was open and obvious. In any event the judgment is supported by the findings that plaintiff failed to keep a proper lookout, which proximately caused the accident.

Plaintiff’s points and contentions are overruled.

Affirmed.