author: WERLEIN, Justice.

text:
    Richard Dean WILLIAMS, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 14201.
    Court of Civil Appeals of Texas. Houston.
    Oct. 24, 1963.
    Howard M. Wayland, Robert H. Cowie, Houston, for appellant.
    Joe Resweber, County Atty., Edward J. Landry, Asst. County Atty., Houston, for appellee.
   WERLEIN, Justice.

This is an appeal from the County Court of Harris County, Texas. The record consists of a transcript only. Judgment in the trial court was entered on the pleadings. Appellant’s statement of the case, which appellee says in its brief is correct is substantially as follows:

Appellant was tried in Corporation Court No. 3 of Houston, Harris County, Texas, on August 31, 1962 on a petition for an administrative hearing under Article 6687b, Sec. 22, Vernon’s Annotated Texas Civil Statutes, filed by the Texas Department of Public Safety wherein it was alleged that the appellant was an habitual violator of the traffic laws of the State of Texas. From an affirmative finding by the judge of the Corporation Court appellant appealed to the County Court of Harris County, Texas. From an order of the County Court dismissing the appeal for want of jurisdiction, appellant has perfected his appeal to this Court.

At the outset we are confronted not only with the question as to whether the County Court of Harris County or the County Civil Court at Law of Harris County had jurisdiction over the appeal from the affirmative finding of the Corporation Court, but also the question whether this Court has jurisdiction over appellant’s appeal. A brief discussion of the applicable sections of Article 6687b, Sec. 22, and of the authorities will be helpful in answering both questions.

Appellant contends that the trial court erred in dismissing the case for want of jurisdiction because of the provisions of Article 6687b, Sec. 22(a), V.A.T.S., which provides as follows.

“Upon such hearing, in the event of an affirmative finding by the court; the officer who presides at such hearing shall report the same to the Department which shall have authority to .suspend said license for a period not ■greater than one (1) year, provided, however, that in the event of such affirmative finding the licensee may appeal to the county court of the county wherein the hearing was held, said appeal to be tried de novo. * * * ”

Appellee takes the position that the court properly dismissed appellant’s appeal since jurisdiction to hear and decide the appeal from such affirmative finding properly lies in the County Civil Court at Law of Harris County. Appellee has furnished this Court with a certified copy of an unreported opinion of the El Paso Court of Civil Appeals in the case styled William Patrick Seery, a Minor, by His Guardian Ad Litem, Frank J. Galvan, Jr. v. The Texas Department of Public Safety, handed down June 27, 1956, in which the court, after reviewing the legislation creating the County Courts at Law of El Paso County, 'held that the County Court of that county had properly dismissed an appeal from an affirmative finding by the justice of the peace, on the ground that the county court had no jurisdiction.

We do not agree with appellee’s contention. The Legislature in 1959 amended Section 22 of the Drivers License Act of 1941 by adding Section 22(c). Section 22(a) was re-enacted in full in the 1959 ' amendment. The Waco Court of Civil Appeals, in Forbes v. Texas Department of Public Safety, Tex.Civ.App., 335 S.W.2d 439, in a carefully considered opinion, held Section 22(a), with which we are here concerned, to be valid. Such section specifically provides that in the event of an affirmative finding the licensee may appeal to the County Court of the County wherein the hearing was held, said appeal to be de novo. The appeal under Section 22(a) to the County Court is taken prior to suspension of the driver’s license by the Department of Public Safety.

Section 22(c), with which we are not concerned except as it may furnish some light in construing Section 22(a), applies to appeals taken after the driver’s license has been suspended, and provides that the licensee may bring suit in the County Court, or County Court at Law, of his residence to vacate and set aside such final ruling and decision suspending his license. Section 31 of Article 6687b, V.A.T.S., with which we are not directly concerned, applies where a person has been denied a license or where his license has been can-celled or revoked by the Department, except where such cancellation or revocation is automatic under the provisions of the Act. It provides for a hearing of the matter in the County Court at Law in the county in which such person shall reside, or if there be no County Court at Law therein, then in the County Court of said county. We mention these other sections of the Act as they clearly show an awareness on the part of the Legislature of the existence of both county courts and county courts at law in certain counties, and indicate that the Legislature intended to designate the courts to which an appeal might lie just as it has done in the Act.

In the recent case of Texas Department of Public Safety v. King, Tex., 1963, 366 S.W.2d 215, our Supreme Court said:

“We construe Section 22(c) to afford a licensee an election between the appeal provisions of Section 22(a) and Section 22(c). He may appeal the affirmative finding of guilt by the hearing officer to the county court under Section 22(a) which does not require or contemplate an actual suspension of the license by the Department prior, or as a prerequisite, to the appeal.
“If the license is suspended on the basis of suspension reasons 3, 4, 5, 8, or 9 of Section 22(b), the appeal provisions of Section 22(c) are also available to him. In such cases, he can .await the order of the Department suspending’ his license on the basis of the prior affirmative finding of the hearing ■officer and, if unwilling to accept the decision of the Department, bring an appeal suit pursuant to Section 22(c). This suit is from the final ruling or decision of the Department; it is to vacate and set aside the decision suspending the license. The appeal court is to ‘determine the issues in such ■cause, instead of the Department’ and the cause ‘shall be tried * * * as if there had been no prior hearing on the matter of suspension.’ The suspension ■order of the Department, however, is not nullified by the appeal but is itself suspended and stayed pending the appeal.”

It is true that in the King case the appeal was taken from the Corporation Court to the County Court at Law under Section 22(c) of Article 6687b, which permits the licensee, whose license has been suspended under certain paragraphs of Section 22(b), to bring suit in either the County Court or County Court at Law of his residence to vacate and set aside the final ruling and decision of the Department suspending his license. The Supreme Court in said case, however, states in no uncertain language that the licensee may appeal the affirmative finding of guilt by the hearing officer to the County Court under Section 22(a). See also the minority opinion of Justice Gray in Texas Department of Public Safety v. Cocke, Tex.Civ.App., 292 S.W.2d 827. We are of the opinion that both the Legislature and the Supreme Court, with full knowledge of the distinction between county courts and county courts at law, meant exactly what they have said. It is our view, therefore, that the County Court of Harris County does have jurisdiction of appeals under Section 22(a) of the Act.

There is an important distinction between an appeal under Section 22(a) and Section 22(c) of the Act. The appeal under Section 22(a) is merely from the affirmative finding of guilt by the hearing officer to the County Court and such appeal does not require or contemplate an actual suspension of the license by the Department prior, or as a prerequisite, to the appeal. Under Section 22(c), however, the appeal is in the nature of a suit brought in the County Court or County Court at Law to vacate and set aside the final ruling and decision of the Department suspending the driver’s license, and such appeal is before the court or a jury at the election of the licensee, and the court, in either event, shall determine the issues in such cause upon a trial de novo as if there had been no prior hearing on the matter of suspension of the license. Thus, the appeal under Section 22(c) to the County Court or County Court at Law amounts in fact to a civil suit, from which there may be an appeal to the Court of Civil Appeals as in the case of other civil suits. The fact that the Austin Court of Civil Appeals in King v. Texas Department of Public Safety, 362 S.W.2d 131, and the Supreme Court in Texas Department of Public Safety v. King, supra, entertained the appeal in such case under Section 22(c) necessarily implies that they considered they had jurisdiction over the same.

We are of the opinion that upon appeal of the affirmative finding of the Corporation Court or other hearing officer, under Section 22(a), the County Court is called upon to perform an administrative function rather than a judicial one. The County Court merely acts in the same manner as does the Corporation Court and decides the guilt or innocence of the licensee whose license has not been revoked or can-celled. The court acts as a fact finding tribunal. Upon its affirmative finding the Department may revoke the license. It is not required to do so and may not do so. The ultimate purpose of the proceeding brought by the Department is the revocation or cancellation of the license. Until that purpose has been accomplished or consummated, there is merely an affirmative finding of guilt or innocence by an agency of the government acting in an administrative capacity, but no final judgment of cancellation or revocation of the driver’s license from which an appeal can be had to the Court of Civil Appeals.

In Prince v. Garrison, Tex.Civ.App.1952, 248 S.W.2d 241, which was decided before the 1959 amendment adding Section 22(c), the court held on rehearing:

“Although the statute in question is confusing and refers to courts and proceedings therein prior to a cancellation of appellant’s driver’s license, we believe that the statute intends to refer to the mayor, justice of the peace, ‘police’ judge and the county judge as administrative, not judicial, officers in the preliminary hearings to determine a question of fact, for instance, whether or not appellant is an habitually reckless driver, and that until and unless appellant’s license is revoked by the Department of Public Safety and appellant institutes a judicial proceeding in the County Court, as a court in conformity with art. 6687b, Sec. 31, Vernon’s Ann.Civ.St, there is no case in a court and that prior thereto, there is merely a special statutory proceeding before officers acting in an administrative, not judicial capacity. See City of Big Spring v. Garlington, County Judge, Tex.Civ.App., 88 S.W.2d 1095, 1097; Hardy v. City of Throckmorton, Tex.Civ.App., 62 S.W.2d 1104, 1105; 28 Tex.Jur., 606.”

In Texas Department of Public Safety v. Cocke, Tex.Civ.App., 292 S.W.2d 827, the court held that no appeal to the Court of Civil Appeals lies from the affirmative finding made by the County Court under Section 22(a). See Hernandez v. State, Tex.Civ.App.1911, 135 S.W. 170, error dism. See also Morrow v. Corbin, 1933, 122 Tex. 553, 62 S.W.2d 641, in which the Court said:

“The jurisdictional provisions of the Constitution relating to Courts of Civil Appeals are found in section 6 of article 5 of the Constitution, and in so far as here involved read: ‘Sec. 6. * * * Said Court of Civil Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all civil cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. * * * ”

It is our opinion that thus far there has been no civil case in court and no final judgment rendered from which an appeal to this Court is authorized. The appeal is, therefore, dismissed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Evelyn HOPPER, Appellant, v. J. C. PENNEY COMPANY, Appellee.
    No. 16454.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 11, 1963.
    Rehearing Denied Nov. 8,1963.

      Crumley & Hooper, R. E. Rouer and W. M. Murphy, Fort Worth, for appellant.
    Cantey, Hanger, Gooch, Cravens & Scarborough, David O. Belew, Jr., and Sloan B. Blair, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Plaintiff Evelyn Hopper, a feme sole, brought suit for personal injuries against J. C. Penney Company, alleging personal injuries proximately caused as the result of the condition of stairs on which she fell. Trial was to a jury, but upon the conclusion of plaintiff’s case an instructed verdict was directed and judgment thereon entered that plaintiff take nothing. An appeal was taken, hence the matter before us.

Judgment affirmed.

It is manifest that in negligence cases of this character, as in negligence cases generally, proof of proximate causation is an absolute prerequisite to recovery. See 64 A.L.R.2d p. 398, et seq., Annotation: “Liability of proprietor of store, office, or similar business premises for injury from fall due to defect in stairway,” and p. 451, et seq., § 13, “(Proximate cause) Generally; causation sufficiently shown.” In same volume see also page 335, et seq., Annotation: “Liability of proprietor of store, office, or similar business premises for injury from fall due to defect in floor or floor covering”, and p. 377, et seq., § 15, “(Proximate cause) Generally; causation sufficiently shown.”

In the instant case we are convinced that the plaintiff failed to introduce evidence sufficient to raise an issue of fact upon the matter of whether the defendant’s dereliction of duty, if any, amounted to a proximate cause of the injuries which were sustained by her.

Immediately prior to and at the time of plaintiff’s accident she was on the landing at' the top of some stairs in defendant’s retail mercantile establishment, preparing to descend or in the act of descending the same. The point at which plaintiff was located at the time was such that she would have been near the left-hand portion of the stairway, as she descended, so that if she used the: handrail she would have placed her left hand thereon.

The handrail is at a level 30 inches above the outer edge of each step of the stairs. The width of each step is 10¼ inches, and each riser is 7 inches. The handrail is more or less what is now termed an obsolete type, in that it does not extend to a point where it can be grasped conveniently by a person while standing on the landing at the top of the stairs preparatory to a descent. The handrail begins some three inches therefrom (toward the descending stairway), where it enters the side of an upright post that supports and holds the handrail. The post holding the same rises several inches above the railing. Therefore, the plaintiff, desiring to descend these stairs on the left side, and furthermore desiring to support herself in so doing by grasping the handrail with her left hand, necessarily had to reach forward and downward and around the post in order to grasp the same before stepping onto the first step below the landing.

There was a person accompanying plaintiff at the time of her accident, but this person was to her right and had apparently started down the stairs before the plaintiff fell for she did not see the accident occur. The first this person knew of the event was when plaintiff had already fallen, as she tumbled down the stairs. There was a complete absence of any evidence that any other person had ever fallen in this portion of defendant’s store, or on the stairs. There was evidence that plaintiff had theretofore used them. There was no proof apparent from physical evidence immediately after plaintiff’s fall which revealed the occasion for her accident, and the physical situation of the stairs, including the handrail, was the same -immediately afterward as before the accident. We are therefore confined to the testimony of the plaintiff herself as to the occasion for her fall, i. e., the proximate cause thereof.

Plaintiff admitted that she did not know what caused her to fall. Her last recollection of any event prior to her accident was that she was on the landing at the top of the stairs, reaching forward and downward with her left hand to grasp the handrail to her left at which time she either had both her feet still on the landing or had one foot stepping out and down toward the first step. After that moment she remembers only that she was in the act of tumbling down the stairs, or had come to a stop at the bottom, after tumbling down, with complete inability to recall what occurred in the intervening period. In other words, we are left to speculate whether her hand failed to reach the handrail toward which she was reaching, or grasped the same only to have her hand slip; whether she missed the first step or stepped thereupon only to have her foot slip, her ankle turn, her heel or toe to catch in some obstruction, etc. Therefore plaintiff failed to show any causal connection with the negligence or dereliction in duty on the part of the defendant, if any. The evidence proves only the fact of her accident, not the cause. In such a case a plaintiff cannot be said to have made out a prima facie case. Houston Nat. Bank v. Adair, 1948, 146 Tex. 387, 207 S.W.2d 374. Unlike the situation in J. Weingarten, Inc. v. Brockman, (1940) 134 Tex. 451, 135 S.W.2d 698, opinion adopted, there is no room in this cast for any legitimate inference of proximate cause.

Independently, even assuming for the purpose of our discussion that defendant was in fact negligent in permitting the handrail to exist in the condition aforede-scribed, and that it amounted to a proximate cause, we are of the opinion that defendant was furthermore entitled to prevail under the “no duty” doctrine. On the trial plaintiff concentrated her efforts to make out a prima facie case on the condition, location, and construction of the handrail.

We deem an affirmative defense under the doctrine to have been adequately invoked by the defendant within the provisions of Texas Rules of Civil Procedure 94, “Affirmative Defenses”, under its allegations that the condition of the stairs was open and obvious and that if plaintiff had been exercising ordinary care for her own safety the event would not have occurred. It is evident that any dangers existent in connection with the handrail were open and obvious and furthermore that plaintiff did discover and was aware thereof immediately prior to the occurrence of the accident. One meaning of the “no duty” doctrine is that if an invitee on the premises, having knowledge of the dangers thereon, exposes himself to them, he must take the premises as he finds them and there is no duty on the owner to protect him even by the use of reasonable precautions to eliminate the hazards. Robert E. McKee, General Contractor v. Patterson, 1954, 153 Tex. 517, 271 S.W.2d 391. See also Natalie K. Halepeska v. Callihan Interests, Inc., 6 Texas Supreme Court Journal, August 3, 1963, pp. 644, 652, in which there is a more detailed elaboration of the rule than stated in the McKee case, and in which is disapproved a small though important part of the law as announced in McKee.

Defendant has additional points of error based upon the trial court’s exclusion of certain photographs of other stairs and stairways on the defendant’s premises but at locations other than the point of plaintiff’s accident. As evidenced by proof introduced for purposes of plaintiff’s bills of exceptions, it is obvious that the stairs and stairways sought to be shown in the excluded photographs were of much more modern design than the stairs upon which plaintiff fell, and embodied safety features which were non-existent in the latter. Actually, the question would relate to negligence of the defendant, not to the matter of proximate cause, and its resolution could not effect our disposition of the case. Nevertheless we will discuss it.

Plaintiff’s contention upon the admissibility of the photographs into evidence is clearly set forth in her counsel’s argument to the trial court as reflected in her brief: “Your Honor, the position of the defendant seems to be that the stairway in question is not hazardous. Our position is that there are other stairways maintained by the defendant in the same store, or in the same building, which contain certain features which are not contained in the stairway in question, and this constitutes an admission by the defendant and that the action and/or conduct by the defendant constitutes an act of negligence, and that such conduct and acts of the defendant is, therefore, an admission and is admissible. It is our position that there being certain features which are in the second stairway which are not contained in the stairway in question, * * or the stairway in question here, is not all that it should be, and it goes to show that it is feasible and practicable to build the stairway in question with features which will eliminate the hazard, which we maintain was in the stairway in question. Now, the area is not similar in the stairway, ⅜ * ⅜ and the purpose of this is to show they were not prevented from making repairs to the stairway in question which would prevent further accidents and we think we should be permitted to present evidence to show that they were not prevented from making repairs to the stairway in question before this accident ever occurred.”

The proffered evidence was properly excluded. The fact that a party maintains several facilities serving the same purpose, some of which have features not found in others, is not proof that the latter are dangerous or hazardous, nor do such circumstances constitute any admission by such a party. A defendant should not he subjected to having the most lately constructed or the most efficiently constructed stairway on his premises treated as the proper, or the norm, with older or other less efficiently constructed stairways deemed to be unsafe, dangerous, or negligently maintained merely because they are not on a parity. To have permitted the evidence before the jury would have invited it to make this character of comparison. This would have amounted to the trial of an issue upon the question of which of the stairways on the defendant’s premises were the safe and which the unsafe, rather than a trial in which the issue was upon the question of defendant’s negligence in relation to the stairway where the plaintiff fell. Furthermore it would have unfairly exposed the defendant to improper prejudice by the jury because all the stairways on its premises were not identical.

We see no distinction to be made from the question of admissibility of evidence of repairs or improvements, or additional precautions taken, subsequent to the occurrence of an accident. Generally on the issue of negligence such evidence should be excluded on the ground of public policy. There are exceptions to this rule of exclusion. Where the same evidence becomes relevant to other issues in the case it would be admissible. The test thereupon to be applied is whether the fact such evidence would reflect would be merely remotely probative. If the remoteness is too great to justify its admission, considering that it was not admissible on the issue of negligence, it should be excluded. The trial court, in the exercise of sound discretion, correctly ruled the evidence inadmissible. Roosth & Genecov Production Co. v. White, 1953, 152 Tex. 619, 262 S.W.2d 99; St. Louis A. & T. Ry. Co. v. Johnston, 1890, 78 Tex. 536, 15 S.W. 104.

Stephenville, N. & S. T. Ry. Co. v. Schrank, 1915 (Tex.Civ.App., Austin), 175 S.W. 471 was cited by McCormick & Ray, Texas Law of Evidence, 1937, p. 649, “Exceptions to Hearsay Rule — Admissions”, § 503, “Subsequent Repair or Precaution” as authority for a statement that it was proper to permit a plaintiff to show that defendant has substituted a different kind of appliance at another place as evidence that the one in question was admitted to be defective. Our interpretation of the holding in the case was that the evidence was deemed admissible because its probative effect was to establish that the appliance was admitted to be insufficient to accomplish its intended purpose, to-wit: to keep livestock from getting on the railroad tracks. Even so, we believe the decision of the case on such point is effectively nullified by subsequent decisions.

Judgment is affirmed.


author: COLEMAN, Justice.

text:
    Leland O. WEBB et ux., Appellants, v. Irene MITCHELL et al., Appellees.
    No. 14108.
    Court of Civil Appeals of Texas. Houston.
    July 11, 1963.
    Rehearing Denied Oct. 24,1963.

      Wilson M. Rutherford, El Campo, for appellants.
    Willis & Willis, George P. Willis, El Campo, for appellees.
   COLEMAN, Justice.

This is a suit for partition of real estate. The trial court found that appellees, Irene Mitchell, Leola Storey, Anna Belle Odell, and Clyde Webb, owned a 4/7ths interest in the property and ordered it partitioned by commissioners. The appellants, Leland O. Webb and Cora Spree Webb, who contend that they have record title to 6/7ths of the property and title by limitation to the entire property, have perfected their appeal.

Appellants’ Points I through V, complaining of alleged procedural errors of the trial court, were expressly waived in oral argument and will not be discussed further.

Sam Bishkin et al. conveyed the property in dispute to Leland O. Webb, M. A. Webb, Mrs. Leola Storey, Henley Webb, Clyde Webb, Mrs. Irene Mitchell and Mrs. Anna Belle Walker (now Anna Belle Odell) by general warranty deed dated November 12, 1946. During the year 1948 a general warranty deed conveying the property to Leland O. Webb and his wife, Cora Spree Webb, was executed by all of the other grantees in the Bishkin deed except Mrs. Irene Mitchell. She signed the deed, but since her husband declined to sign it Mrs. Mitchell did not acknowledge the deed. Mrs. Mitchell testified that she retained possession of the deed for several years when she gave it to Leland 0. Webb at his request. Leland O. Webb testified that the deed was given to him after Mr. Mitchell refused to sign it and that he kept it in his possession and finally recorded it in 1953. The deed was acknowledged by M. A. Webb on January 9, 1948, in Brewster County; by Mrs. Walker on January 12, 1948, in Midland County; by Mr. and Mrs. Storey on January 17, 1948, in Bexar County; by Clyde Webb on January 22, 1948, in Sedgwick County, Kansas; by Henley Webb on February 17, 1948, in Harris County; and Mrs. Mitchell signed the deed in El Campo, Texas, on March 2, 1948.

Mrs. Mitchell testified as follows:

“Q Will you tell the Court Mrs. Mitchell, what the agreement was among your brothers and sisters that caused the preparation of this deed?
“A Actually, I didn’t know anything about the instrument until it was brought to us to be signed and we were told at that time that it was — if all of the heirs and children did sign the instrument that it was to be delivered to my brother, Leland and that he was to in consideration of being given that instrument, he was to see that the taxes were paid and the place was taken care of and who my father, who was living in his own old home at that time to be care_ for.
“Q In other words, the children wanted your father to be cared for?
“A Yes, sir.
“Q And was that one of the reasons that they signed the deed ?
“A I can’t say that it was their reason, I feel like it was. I have been told by all of them that it was—
“MR. RUTHERFORD: If it please the Court, that is hearsay.
"Q (Continuing questions by Mr. Willis:) Was the matter discussed rather frequently among the children — other children, other than Leland ?
■“A Yes, sir, it was.
“Q And the agreement that it would be signed under those conditions, is that correct?
■“A Yes.
■“Q That it would be delivered only if everyone signed it ?
“A That’s right.
■“Q And that the property was to be used by Leland, he was to pay the taxes and to used by him to care for your father?
•“A Yes, sir.
“Q After your husband refused to sign it, Mrs. Mitchell, did you keep the deed in your possession for several years ?
■“A Yes, sir, I did have it at my home, it was just left there until, I think around 1953.
“Q And then what happened to the deed?
“A Leland called and wanted to know if he could pick the paper up and I said, ‘yes’, ‘yes, If I could find it,’ It was still there, he could have it and he came by the house then and I gave it to him.
"Q Did you ever have any legal advice given you Mrs. Mitchell to the effect that a married woman-signature, without the joinder of her husband as awnullity?
“A Yes, sir, I have.
“Q Did you feel that when you delivered the deed to Leland, that you were delivering him a worthless paper?
“A Yes, I did, I didn’t have no idea that anything could be done with it.
“Q Did you have the authority of these other grantors to — in writing or orally or any other way, did you have their authority to deliver this deed to Leland without the signature of everyone, to make it legal?.
“A No, I didn’t.
“Q And you delivered it to him, because you felt that it had no legal effect, is that right?
“A That’s right.”

Clyde Webb testified that it was his understanding that one of the children should be given title to the property to handle it. The property was not to be sold as long as their father wanted to live there and upon a sale being made, the proceeds were to be divided equally among the seven children. At one point he testified that the deed was to be delivered only if all named grantors signed it. Later he said that he never thought of what would happen if everyone did not sign it. He also testified he told Mrs. Mitchell that it was all right to deliver the deed, but the evidence indicates that this statement was made before the deed was signed by anyone, and he later testified that he didn’t remember telling her to deliver the deed and he didn’t believe there was any agreement on it. He testified that he had never talked to Leland Webb about the delivery of the deed and that he did not have any agreement with him concerning the return of the property; that he just trusted in Leland’s good faith. He testified that when he signed the deed he intended that title to the property would “rest” in Leland Webb until it was sold and divided.

Mrs. Odell testified that it was her understanding of the agreement among the parties that “it would have been of no use and not to be delivered unless we all signed it.” She testified that it was the understanding of all the children that “Leland had offered to pay the back taxes on the place and fix it up or improve it or sell it or whatever all the children agreed to do.” She also testified that their father was to have a home as long as he lived and that in the event the property was sold the proceeds were to be divided equally. She testified that she did not authorize Mrs. Mitchell to deliver the deed.

Mrs. Storey testified that all of the children were to agree on what was to be done; that Leland was to take care of their father and the place; and that the deed was to be “turned over to Leland only on the condition that all the parties sign it.” She later testified that it was to be delivered only if all the parties signed the deed and acknowledged it; that she did not deliver the deed to Leland or authorize Mrs. Mitchell to do so.

Leland Webb testified that he did not request anyone to give him the deed and that he did not know about the deed until it was signed and Irene gave it to him, and that he had no agreement or understanding that the property would be reconveyed or accounted for to any of his brothers and sisters.

In answer to the question: “Have you told other people in the community that the property belongs to you?” he stated: “No, sir, just a few words, I told them that I was paying taxes on them.” Referring to 1948, 1950, or 1953, he testified in answer to the question: “You weren’t at that time trying to exclude your brothers and sisters from their share of the homestead property, were you?” as follows: “I thought if they would pay up their part, I would go along, but they never did.” He also testified that in 1954 he did not intend to exclude them from participating in ownership of the property “if they had put up their part and kept it up, and they didn’t.” He admitted that he remembered something about counsel for appellees asking for a list of his expenses in 1959, which he agreed to furnish, so that the total could be divided by seven and each of the appellees could repay him the share due.

Henley Webb and M. A. Webb were im-pleaded as defendants by appellees. An answer was filed by Henley Webb in which he alleged that the deed by which the property in question was conveyed to Leland O. Webb was a good and sufficient general warranty deed and was properly delivered. !He alleged that by the execution and delivery of the deed it was the intention of the grantors that a complete gift of the property be made to the grantees.

It appears that M. A. Webb executed a confirmation deed to Leland O. Webb of his interest, if any, in the property and he filed no answer. While his deposition was taken and appears in the transcript, it is not included in the statement of facts and does not appear to have been introduced into evidence.

The trial was to the court without a jury and no findings of fact or conclusions of law were requested or filed by the trial court with the exception of certain recitations found in the judgment. The judgment recited that the trial court finds that appellees and appellants jointly own the property in question and that Irene Mitchell, Leola Storey, Anna Belle Odell, and Clyde Webb own an undivided 4/7ths interest in the property and that appellants, Leland O. Webb and Cora Spree Webb own the remaining 3/7ths interest. This finding of the trial court is supported by the evidence showing that appellees did not intend that the deed to Leland O. Webb and Cora Spree Webb be delivered until all the other joint owners properly executed the deed. Mrs. Irene Mitchell, as previously stated, has never conveyed her interest. We imply in support of the trial court’s judgment that the appellees did not intend that the deed should become operative as a conveyance of the title until it was signed and acknowledged by Mrs. Irene Mitchell and her husband, and that delivery of the deed, in the absence of the properly acknowledged signature of Mrs. Mitchell, was not authorized or intended by them. Under such circumstances the deed did not divest these appellees of title to the land. Vannerberg v. Anderson, 146 Tex. 302, 206 S.W.2d 217; Koppelmann v. Koppelmann, 94 Tex. 40, 57 S.W. 570; Steffian v. Milmo National Bank, 69 Tex. 513, 6 S.W. 823; Marble v. Marble, 52 Tex.Civ.App. 380, 114 S.W. 871; North v. North, Tex.Civ.App., 2 S.W.2d 481.

The deed is not ineffective as to M. A. Webb and Henley Webb. If it was their intention, at the time they executed the deed and mailed it to another of the grantors, that the deed become operative to vest title as to their interests, the fact that Irene Mitchell failed to acknowledge and deliver the deed to Leland Webb would not render the deed invalid as to their interests. Clark v. Hoover, 51 Tex.Civ.App. 181, 110 S.W. 792, error ref.; Minor v. Powers, Tex.Civ.App., 38 S.W. 400. They were not parties-plaintiff in the trial court and have not appealed from the judgment of the trial court.

The trial court denied appellants’ pleas of limitation title. There is evidence in the record from which the trial court could properly have found that Leland O. and Cora Spree Webb made no adverse claim to the property until a few months prior to the date on which this suit was filed and that appellees had no actual knowledge, and insufficient notice to constitute knowledge as a matter of law, that they claimed ownership of the entire property.

Appellants urge that the trial court erred in failing to allow judgment for the amounts spent in payment of taxes and paving liens and permanent improvements to the property. The trial court found that the delinquent and current taxes paid by appellants “will offset any rentals due by the said Leland O. Webb” for the use of the property in question. Mrs. Irene Mitchell, one of the owners of the property, testified that she had made inquiries concerning rentals paid in the community and had discussed rental values with residents and people experienced in the sale or rental of city property, and had reached a conclusion as to the rental value of the property in question. She was then asked what her conclusion was and the question was objected to on the ground that her opinion would be based on hearsay and that she was not qualified to testify to the rental value of the property. The court admitted the testimony carrying the objection with the case. No further request for a ruling on the objection was made. She then testified that “from my discussion from a number of people, who are familiar with rental of places * * * a fair monthly rental on the land would be between $40.00 and $50.00 a month.” No other testimony as to rental value was introduced. Appellant contends that the court erred in admitting this testimony.

Leland Webb testified that he had built a home on the property costing $6,-000.00 and had spent $1100.00 for improvements on the home. He testified that he had the land filled and graded and that, counting his own labor, time and machinery, the cost was about $1500.00. He introduced receipts showing the payment of taxes and a paving lien assessment in substantial amounts. There is no testimony that any of appellees desired to make use of the property or were denied the right to use it until a few months prior to the filing of the suit. Appellant used the property for his residence and for several years conducted his business on the property. He used more than his proportionate share of the property. In his judgment the trial court suggested and recommended to the commissioners that Leland O. Webb be awarded a portion of the premises to include the improvements placed on the property by him. Neither party has objected to this part of the decree. Where a party has placed improvements on land owned in common, that portion of the land on which such improvements were placed should be awarded to him on partition if it can be done without detriment to the interests of the cotenants. Broom v. Pearson, Tex.Civ.App., 200 S.W. 191, error ref. In such a case the court should not require the cotenants to pay their proportionate part of the value of the improvements. Spicer v. Henderson, Tex.Civ.App., 43 S.W. 27.

Appellants waived the objection to the testimony of Mrs. Mitchell as to rental value by failing to secure a ruling from the trial judge. City of Denison v. Corcoran, Tex.Civ.App., 253 S.W.2d 321; Wilson v. Texas Cresoting Co., Tex.Civ.App., 270 S.W.2d 230.

It is well established that the qualification of a witness testifying as to market value is primarily a question for the trial court, whose ruling thereon will not be disturbed on appeal unless it is clearly erroneous. Slack v. Magee Heirs, Tex. Civ.App., 252 S.W.2d 274, aff’d 152 Tex. 427, 258 S.W.2d 797; Foley Bros. Dry Goods Co. v. Settegast, Tex.Civ.App., 133 S.W.2d 228, error ref.

No special study, training or experience is necessary to enable a witness to estimate values, but he must possess: (1) a knowledge of the general value standard of things in that particular class; and (2) a knowledge of the particular thing to be valued. McCormick and Ray, Tex. Law of Evidence (2d Ed.), § 1422. The fact that Mrs. Mitchell’s knowledge of rental values of other properties was derived from information furnished her by others does not deprive her testimony of probative value. Humphrey v. Stidham, Tex.Civ.App., 124 S.W.2d 921; Murray v. Morris, Tex.Civ.App., 17 S.W.2d 110, error dism.; Humble Oil and Refining Co. v. Woods, Tex.Civ.App., 277 S.W. 152, rev. on other grounds, Tex.Com.App., 292 S.W. 200; Missouri, K. & T. R. Co. v. Cocreham, 10 Tex.Civ.App. 166, 30 S. W. 1118; Galveston, H. & S. A. Ry. Co. v. Polk, Tex.Civ.App., 28 S.W. 353.

The expense incurred by appellants for filling in the lots cannot properly be charged to the cotenants. It cannot be determined from the evidence whether this improvement affected all of the land, and, if it did not, what portion of the land was filled in and leveled. We cannot determine that the land cannot be partitioned so as to give appellants the benefit of all of their improvements. Spicer v. Henderson, supra.

The trial court did not err in offsetting the value of the use of the property against appellants’ claim for reimbursement for taxes and other funds expended by them for the preservation of the common property. Roberts v. Roberts, 136 Tex. 255, 150 S.W.2d 236; Rucker v. Butcher, Tex.Civ.App., 300 S.W.2d 183.

Appellants complain of the action of the trial court in allowing questions concerning a conversation between Leland O. Webb and appellees’ attorney. This, action of the court, if error, was not of such a nature as to probably cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

Appellant has attacked the trial court’s-conclusion that a constructive trust exists between the parties by several points of error. Since we have determined that the deed into appellant was ineffective as a conveyance of the interests of appellees, we do not deem it necessary to prolong this opinion by discussing these points. All other points of error not specifically discussed herein have been carefully considered and are denied.

The judgment of the trial court is affirmed.

On Motion for Rehearing

On motion for rehearing appellants assert that it was not their intention to waive their Points I and II. In view of this statement we will consider these points.

Point I presents appellants’ contention that the court erred in proceeding to trial without first acting on special exceptions to appellees’ petition. The record ■does not reflect that the special exception was called to the attention of the trial ■court prior to rendition of judgment, in which event it was waived. Connor v. Boyd, Tex.Civ.App., 176 S.W.2d 212; Tarkington v. Continental Casualty Co., Tex.Civ.App., 341 S.W.2d 490; Kaherl v. Kaherl, Tex.Civ.App., 357 S.W.2d 622; Rule 90, Texas Rules of Civil Procedure.

Appellants’ second Point complains that appellees’ petition and amendments thereto were subject to appellants’ special exception because it failed to allege a cause of action for partition or trespass to try title. Rule 90, supra, specifically provides that every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the judge in the trial court, in a non-jury case, before the rendition of judgment, shall be deemed to have been waived. Where a party files exceptions complaining of defects in pleadings pertaining to matters of substance, it is necessary that he call them to the attention of the trial court before the rendition of judgment, in a non-jury trial, and that he secure an order disposing of the exceptions, if the action taken by the court on the exceptions is not otherwise shown by the record. Polk v. Grogan’s Wholesale & Retail Lumber Co., Tex.Civ.App., 325 S.W.2d 201; Talbert v. Herrera, Tex. Civ.App., 353 S.W.2d 948.

Appellants request that we find as a fact that appellees had no agreement concerning any conditions under which the deed would be delivered prior to the dates that each of appellees signed the deed, and that such conditions were never made known to appellants. As the testimony quoted in our opinion shows, there was testimony of an agreement that the deed would not be delivered unless all children signed and acknowledged it. We are unable to make the requested findings for another reason. No findings of fact or conclusions of law were requested of the trial court, although certain findings are included in the judgment. No findings were made concerning delivery of the deed or agreements relating thereto.

The Court of Civil Appeals has no power to find facts in the first instance. The Leader, Inc. v. Elder Mfg. Co., Tex. Com.App., 39 S.W.2d 880. In Construction and General Labor Union v. Stephenson, 148 Tex. 434, 225 S.W.2d 958, the Supreme Court stated:

“No request was made of the trial court to make and file findings of fact and conclusions of law, under Rules 296-299, Texas Rules of Civil Procedure, and no separate findings and conclusions were filed. In the absence of findings of fact in a case tried without a jury, it is settled that we must test the validity of the judgment on the assumption that the trial court found every disputed fact in such a way as to support the judgment he rendered. Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74; International Union of Operating Engineers v. Cox, Tex.Sup., 219 S.W.2d 787; North East Texas Motor Lines v. Dickson, Tex. Sup., 219 S.W.2d 795. Petitioners point out that the judgment in this case recites certain findings of fact and, after granting an injunction against picketing, provides that all other relief not specifically granted is denied. However, this denial of other relief does not constitute a finding of the nonexistence of facts not recited in the judgment; and in this situation omitted findings necessary to support the judgment will be supplied by a presumption in support of the judgment, if there is evidence in the record to sustain such omitted findings. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562. Moreover, it is established that this court will not reverse a judgment of the trial court affirmed by the Court of Civil Appeals if the judgment is correct in view of the entire record, even though in our opinion one or both of the lower courts have given erroneous reasons for rendering or upholding the judgment. Walker v. Garland, Tex.Com.App., 235 S.W. 1078; Bordelon v. Philbrick, 125 Tex. 460, 84 S.W.2d 710; Payne v, Bracken, 131 Tex. 394, 115 S.W. 2d 903. * * *”

There is no evidence that appellees specifically authorized Mrs. Mitchell to deliver the deed to appellants unless it was properly signed. We remain of the opinion that under such circumstances the fact that Mrs. Mitchell gave appellant Leland O. Webb the deed under the impression that it was not effective as a deed, since her husband had not signed it and she had not acknowledged it, would not constitute a delivery of the deed.

The motion for rehearing is denied.


author: DIXON, Chief Justice.

text:
    DAVID GRAHAM HALL FOUNDATION, Appellant, v. HIGHLAND PARK INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 16243.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 27, 1963.
    Rehearing Denied Nov. 1,1963.

      Woodgate & Richards, John H. McEl-haney, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for appellant.
    Henry Wade, Dist. Atty., Sam Connally and Philip E. Thorson, Asst. Dist. Attys., C. L. Chance, Leander, for appellees.
   DIXON, Chief Justice.

David Graham Hall Foundation has appealed from a judgment against it for delinquent ad valorem taxes found to have been due Highland Park Independent School District, Town of Highland Park and State of Texas and County of Dallas. Appellant defends on the ground that it is a charitable organization and is therefore exempt from the payment of taxes under Art. 7150, subd. 7, Vernon’s Ann.Civ.St.

We have concluded that the judgment should be affirmed. Notwithstanding the statutory provisions upon which appellant relies the Constitution of the State of Texas, Art. VIII, Sec. 2, Vernon’s Ann.St., has been interpreted to mean that property of a charitable organization is not exempt from the payment of taxes unless it is shown that the particular property in question has been used exclusively for charitable purposes during each year for which exemption is claimed. Appellant has failed to show that the property was so exclusively used.

In 1942 Highland Park Independent School District filed suit for taxes alleged to be due on property owned by appellant and described as all of Lot 16, Block 87, Highland Park 4th Installment (and improvements thereon) as shown by the official recorded map of the Town of Highland Park. In 1943 the Town of Highland Park intervened, also suing for delinquent taxes on said property.

In 1958, sixteen years after the filing of its original petition, the School District filed its second amended original petition in which it reasserted its claim for taxes due for the year 1941 and sued further for all delinquent taxes which had accrued since the filing of its original petition. Inter-venor Town of Highland Park filed its amended plea of intervention, likewise suing for the additional delinquent taxes alleged to have accrued since the filing of its original plea. In 1959 the State of Texas for the first time intervened, claiming delinquent taxes over a similar period of time.

Appellant filed its original answer on February 27, 1959, consisting of a general denial. On July 13, 1962 appellant filed its fourth amended answer and a plea in abatement, in which pleadings appellant claimed for the first time that the suit should be dismissed because of the failure of the taxing authorities to prosecute for a long period of time. So far as the record shows the plea in abatement was never acted on by the court.

On July 20, 1962 a jury returned a verdict finding in substance that (1) The School District and the Town of Highland Park had not prosecuted their actions with diligence between 1943 and 1958; (2) all the rents and revenues from three houses on the property had been used by appellant Foundation to sustain the Foundation; and (3) appellant during all of the time between 1941 and 1961 was an institution of purely public charity.

Thereafter the taxing authorities filed motions for judgment non obstante vere-dicto. The motions were sustained. On December 31, 1962 judgment was rendered in favor of Highland Park Independent School District for a total amount of $4353.-46; in favor of the Town of Highland Park for a total amount of $3043.04; and in favor of the State of Texas and County of Dallas for a total amount of $5383.40.

In its first point on appeal appellant Foundation asserts that the court erred in rendering judgment non obstante veredicto because the jury findings and the ample evidence in support thereof authorize an exemption from the taxes in question under the provisions of Art. 7150, Subd. 7, V.A. C.S.

As was pointed out by our Supreme Court recently it will not suffice for one to show that he comes within the statutory provisions for tax exemption if the facts do not bring his case within the requirements for tax exemption as laid down in Art. VIII, Sec. 2 of our State Constitution. River Oaks Garden Club v. City of Houston, Tex., 370 S.W.2d 851. In our discussion of the second point on appeal we shall explain why appellant has failed to meet these constitutional requirements. Appellant’s first point is overruled.

In its second point on appeal appellant contends that the court erred in failing to-render judgment for appellant because there is ample evidence in support of the jury’s findings that (1) appellant Foundation is an institution of purely public charity and (2) the property in question was owned, and used exclusively for charitable purposes.

Art. VIII, Sec. 2 of our State Constitution contains the following provision:

“ * * * ⅜-he legislature may, by general laws, exempt from taxation * * all buildings used exclusively and owned by * * * institutions of purely public charity * *

Before reviewing the facts of this-case we think it well to summarize the holdings of our Supreme Court in construing the above constitutional provision. Exemptions from taxation are never favored and all doubts are resolved against exemption. Morris v. Lone Star Chap. No. 6, R. A. Masons, 68 Tex. 101, 5 S.W. 519; City of Longview v. Markham-McRee Memorial Hospital, 137 Tex. 178, 152 S.W.2d 1112. In tax suits the taxing authority makes out a prima facie case by introduction of certified copies of the tax records and the testimony of the tax agents. The burden is then on the parties contesting the taxes to go forward with their de fensive evidence. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572; Stone v. City of Dallas, Tex.Civ.App., 244 S.W.2d 937; Art. 7326 and Art. 7328, Sec. 6, V.A.C.S. The constitutional requirement is two-fold: the property must be owned by the organization claiming the exemption; and it must be exclusively used by the organization, as distinguished from a partial use by it and a partial use by others whether the others pay rent or not. Santa Rosa Infirmary et al. v. City of San Antonio, Tex.Com.App., 259 S.W. 926, 932; City of Longview v. Markham-McRee Memorial Hospital (Comm. of App., opinion adopted by S.C.), 137 Tex. 178, 152 S.W.2d 1112. If rent is received from property belonging to a charitable institution, the property is not exempt from taxation though the rental revenues are used solely for the benefit of the charitable institution. State v. Settegast (Comm. of App.), 254 S.W. 925; City of Houston v. Scottish Rite Benev. Association, 111 Tex. 191, 230 S.W. 978; Morris v. Lone Star Chap. No. 6, R.A. Masons, 68 Tex. 701, 5 S.W. 519. (See Footnote ).

It is not necessary for us to pass on the first part of appellant Foundation’s second point, that is, whether there is ample evidence to support the jury’s finding that the Foundation is an institution of purely public charity. For if we were to uphold appellant’s contention in that particular we would still be compelled to hold that the property in question is not exempt from taxation for the years involved because it was not used exclusively for charitable purposes.

The David Graham Hall Foundation was established in 1940. Its corporate charter recites that it was created for the “support of any benevolent, charitable, educational or missionary undertaking.” Over the years it has engaged in many laudable activities, among them the study, prevention and cure of communicable diseases, the establishment of blood banks, etc.

The Foundation is sole owner of the property in question, Lot 16 of Block 87, Highland Park 4th Installment. The dimensions of the lot are 250' by 250'. On it four buildings are located: a main building and three residences.

The main building houses the Foundation’s administrative offices and laboratories. This building also houses the administrative offices of the David Graham Hall Trust, a related but separate organization. The Trust owns many properties the revenue from which is devoted to the support of the Foundation.

At various times the main building has also been used by the Texas Social Hygiene Association, the Dallas Mental Health Society and a private commercial enterprise known as “Right-Way Repair Service.” The specific duration of each of these uses is not shown in the evidence, though each of the uses took place at one time or the other from 1941 through 1962.

Of the three residences on the property, two of them are rent houses, the revenues from which are devoted to the Foundation’s activities. The third residence is known as the caretaker’s house. This house has also been rented for an indeterminate period for the sum of $50.00 per month. During World War II these houses were occupied in part at least at a nominal rental by war refugees who performed services for the Foundation.

The Foundation on several occasions in the past has paid the yearly taxes assessed against the property. The President and General Director testified that the payment of these taxes was a mistake. In this suit no payment was sought for these years.

The above facts are undisputed. There is no evidence to support the jury’s verdict that the property has been used exclusively for charitable purposes. That being so the property under our constitutional provisions as they have been interpreted by our Supreme Court is not entitled to exemption from the payment by its owner of ad valorem taxes. Appellant’s second point on appeal is overruled.

In its third point appellant takes the position that the School District and the Town of Highland Park, by failing to prosecute their causes of action within a reasonable time, had abandoned any causes they might have had.

There is no merit in this point. It is not contended that the Statute of Limitations is applicable to appellees’ suits for taxes. After suit was first filed in 1942 the President and Director of the Foundation suggested that the matter be held in abeyance pending meetings between the parties involved in an effort to reach an agreement in regard to the claim of exemption. Nothing was thereafter done by either side with respect to calling such a meeting.

It should be remembered too that when the original suit was filed in 1942 only the taxes for the year 1941 were in question. When the School District and the Town filed their amended pleadings in 19S8 they sued for the additional taxes which had accrued up to the year 1958. This was in effect the filing of a new suit. The State and County appeared by intervention for the first time in 1959.

It cannot be said that there was any lack of diligence following the filing of the amended pleas by the taxing authorities in 1958. Thereafter appellant filed its original answer. There was considerable activity in the case from that point on as is evidenced by the fact that appellant went to trial on its fourth amended answer. So far as the record shows appellant did not urge its plea of abandonment until shortly before the case went to trial on its merits in 1962. In passing on a motion to dismiss on the grounds of abandonment the lack of action at the time of the presentation of the motion or just before the presentation will govern the court’s decision. Chapman, Banking Commissioner v. Gibson, Tex.Civ.App., 8 S.W.2d 711. Appellant’s third point is overruled.

Appellant’s fourth and fifth points are presented in the alternative. It is alleged that the trial court should have segregated and differentiated the taxes as to exempt years and non-exempt years, and as to specific parts of the property that may have been used for non-exempt purposes.

There is no merit in either of these points. As we have stated each of the taxing authorities made out a prima facie case when it introduced its official tax records and the testimony of its taxing agent. The burden was then on the Foundation to prove its defense. This it failed to do. The testimony is too vague and general to enable the court to single out any one or more tax years when the property was used exclusively for purely charitable purposes within the meaning of our law, if there were any such years.

The same thing is true with reference to segregating those parts of the property, if any, which may have been used for non-exempt purposes. The property is described as Lot 16 of Block 87 4th Installment of Highland Park with improvements thereon. This is a proper description for tax purposes. Art. 7204, subd. 7, V. A.C.S.; Art. 7205, subd. 7, V.A.C.S.; 84 C.J.S. Taxation § 467, p. 904. We find no evidence in the record upon which the court could have predicated a segregation either as to years or portions of appellant’s property. The fifth and sixth points on appeal are overruled.

The judgment of the trial court is affirmed.

      . It is interesting to note that in City of Houston, et al. v. River Oaks Garden Club, Tex.Civ.App., 360 S.W.2d 855, the Houston Court of Civil Appeals held that the Garden Club was an institution of purely public charity. Nevertheless the Court held that the Club’s property was not exempt from taxation, since the Club permitted other non-profit organizations to use the property from time to time though no charge was made for such use.
      The Supreme Court affirmed the decision of the Court of Civil Appeals but on different grounds. River Oaks Garden Club v. City of Houston, Tex., 370 S.W.2d 851. The Supreme Court held that the Club was not an institution of purely public charity, therefore its property cannot be exempt. The Supreme Court did not reach the other question decided by the Court of Civil Appeals: that the Club had allowed other nonprofit organizations to use the property, though rent free, therefore the property was not exempt.
      Justice Norvell, in a dissenting opinion in which he was joined by three other Justices, takes issue with the conclusions of both the Court of Civil Appeals and the majority opinion of the Supreme Court.
      Neither the Supreme Court opinion nor the Court of Civil Appeals opinion control our holding here, for the facts are different: here it is undisputed that the property was used in part by other organizations and individuals some of whom paid rent to the Foundation.


text:
    George YOUNG, Intervenor, Appellant, v. JEWISH WELFARE FEDERATION OF DALLAS and City of Dallas, Texas, Appellees.
    No. 16230.
    Court of Civil Appeals of Texas. Dallas.
    July 26, 1963.
    Rehearing Denied. Nov. 1,1963.
    Odeneal & Odeneal, Dallas, for appellant.
    Saner, Jack, Sallinger and Nichols, H. Louis Nichols, H. P. Kucera, City Atty., and N. Alex Bickley and Ted P. MacMaster, Asst. City Attys., Dallas, for appellees.
   DIXON, Chief Justice.

This is an appeal from a summary judgment in favor of the City of Dallas and Jewish Welfare Federation of Dallas, a corporation, hereinafter called Federation, and against Intervenor Young, who is appellant here.

The litigation began when Federation brought suit against the City for a declaratory judgment seeking to have Federation’s deed of street dedication declared null and void and returned to Federation.

Appellant Young, owner of nearby property, intervened claiming that title for street purposes of a strip SO feet wide had passed to the City by virtue of Federation’s deed and a deed executed by Young’s predecessor in title, Gaspar Arakelian. Young also sought $75,000 damages against Federation for using the property in controversy as part of a concrete parking lot. In a cross-action he asked for damages against the City in the same amount.

Both Federation and the City filed motions for summary judgment and both were sustained. The trial court in its judgment decreed that the property described in Federation’s deed had not been dedicated for street purposes and the City had no right, title or interest in the property. It was also decreed that appellant take nothing against Federation or the City in his action for damages.

FACTS

On August 31, 1953 Clifford L. Huffines, appellant’s predecessor in title, entered into a written agreement with Tom Jackson, Jr., Federation’s predecessor in title, to the effect that on or before three years from date each of them would dedicate parts of their property for use as a street not to exceed 60 feet in width. On August 31, 1956 this agreement expired under its own terms without either of the parties having done anything further toward dedicating the street.

The above agreement between Huffines and Jackson, which had been filed for record in the deed records of Dallas County, Texas, contained this paragraph:

“It is expressly agreed and understood that this agreement shall be binding upon the parties hereto, their heirs and assigns or successors in title to the two tracts of land above mentioned but that said parties reserve the right by mutual agreement to alter the length of the street to be dedicated, it being understood that this instrument shall not be constru-ed to constitute a dedication of the street, and that rights of the public and/or third parties shall not attach or become effective until the street is dedicated by further act of said parties, and they (sic) only to the extend and over such part of said tracts as may be then included in the dedication ■but said dedication to be made on or before 3 years from this date or this casement agreement to become null and void without effect.” (Emphasis ours).

Meantime on June 4, 1954 Federation acquired Jackson’s property. On August 23, 1954 the property was rezoned for use as a community center. This was at a time when the original agreement between Huf-fines and Jackson had not expired, so Federation’s plans took into consideration the possibility that the proposed street might be dedicated prior to August 31, 1956.

The earlier agreement having expired under its own terms, Federation and Fowler Building Company, which had acquired Huffines’ property, on August 31, 1956 entered into a written agreement extending the earlier Huffines-Jackson agreement to August 31, 1957. This contract also expired under its own terms without anything further having been done toward the actual dedication of the street.

Sometime in 1957 an agreement was entered into between Federation and Gaspar Arakelian, who had acquired the Huffines’ property, extending the agreement for the proposed dedication to August 31, 1958.

On May 8, 1958 Federation informed Arakelian, by letter to his agent Nelson A. Farry, that Federation in accordance with its agreement was calling for the dedication of the street, a strip 25 feet in width to be deeded for street purposes from Federation’s property and a like strip from Arake-lian’s property. A copy of this letter was sent to the City Plan Commission and appears among the records of the Commission. We quote from the letter:

“As you are aware, an agreement exists between your client, Caspar Arakelian, and the Dallas Jewish Welfare Federation to dedicate a street off of Northhaven Road, the center line of which shall be the East line of the street conveyed to Fowler Building Company by Clifford L. Huffines by instrument dated September 2, 1953, recorded in Volume 3913 p. 483 of the Deed Records of Dallas County, Texas, reference to which deed is made for a complete description of the tract in question, which street shall be sixty feet (60') in width and shall extend along the entire line of said Fowler tract of land. This agreement was renewed for a period of one (1) year ending August 31, 1958. (Emphasis ours.)
“In accordance with this agreement, the Dallas Jewish Welfare Federation is now calling for the dedication of a 5CK strip, which Marvin Springer of the City Planning Commission believes is adequate, of which we are asking you to dedicate 25' and the Dallas Jewish Welfare Federation will dedicate the other 25'.”

On August 29, 1958 Federation, pursuant to the above letter, executed and filed with the City its deed conveying an easement to the City for street purposes. It is this deed which is the subject of the present litigation.

Arakelian did not dedicate any part of his property on or before August 31, 1958. On November 24, 1958, nearly three months after the expiration of his contract with Federation, he executed a deed conveying a strip 25 feet wide for street purposes. But this deed was not filed with the City until July 15, 1961, nearly three years after the expiration of the agreement between Federation and Arakelian, and about three and one-half months after Arakelian had sold his property to appellant Young on April 1, 1961.

On March 15, 1962 the City Plan Commission of Dallas approved and on March 19, 1961 the City Council approved a revised site plan authorizing Federation to use as part of its parking space, the strip 25 feet wide described in Federation’s deed of August 28, 1958.

Among the City’s answers to Federation’s request for admissions are the following :

1. Federation’s dedicatory deed of August 28, 1958 was delivered to the City in escrow.

2. The delivery was made subject to certain conditions and if said conditions were not complied with the deed would be null and void and would be returned to Federation.

3. One condition was that certain property adjacent to Federation’s property also be dedicated prior to August 31, 1958.

4. Said adjacent property was not dedicated prior to August 31, 1958.

5. It was understood between Federation and the City that if a strip 25 feet in width off the adjacent property to the west was not dedicated by deed prior to August 31, 1958, Federation’s deed would not effect a dedication.

6. The conditions of said escrow agreement were not complied with.

7. The proposed dedication by Federation has not been accepted by the City.

8. The tender of dedication was withdrawn by Federation prior to any acceptance by the City.

9. The City does not contend that the property described in Federation’s deed of August 28, 1958 has ever been dedicated and the City does not claim any right, title or interest in s«iid property.

10. The City would have returned the deed to Federation but for certain claims made by appellant George Young.

OPINION '

We have concluded - that' the trial court correctly sustained both motions for summary judgment. .

The substance of appellant’s first two points on appeal is that it was error to grant Federation’s motion for summary judgment because numerous issues of fact existed, including an issue as to whether Federation was estopped to seek return of its deed and to use the 25 ’ foot strip 'for purposes other than a street.

In his controverting affidavit appellant Young says that on August 11, 1961 he wrote a letter to the. Director of Planning of the City of Dallas disputing the right of the City to return Federation’s deed of August 28, 1958 and asserting that the special permit under which the. Welfare Center was built was issued on condition that the street be located between Federation’s tract of land and appellant’s tract. Young also claimed that the change permitting the 25 foot strip to be used by Federation as part of its parking lot was made without notice to him, and after Federation had already poured the concrete covering up the strip.

Appellant undertakes to support his claims by asserting -that prior to acquiring title to his property from Arakelian he had made inquiry as to all matters appearing in the records of the City Plan Commission, and had purchased his property in reliance on the records, including plats, on file with the Commission. That being so, Young was bound to have taken notice that Federation’s order of dedication was in performance of its agreement of 1957 which renewed the Huffines-Jackson agreement of 1953. This is shown by Federation’s letter of May 8, 1958, copy of which was on file with the Commission. Young is bound also to have taken notice that Ara-kelian had not executed or filed a dedicatory deed prior to August 31, 1958. With this knowledge he cannot support a claim of estoppel against Federation from whom he bought no property at all.

The filing of plats showing an intention in the future to dedicate property as a street does not constitute a dedication. Sec. 6 of Art. 974a, Vernon’s Ann.Civ.St. expressly provides that the filing and approval of a subdivision plat showing streets to be dedicated do not constitute an acceptance by the City. See also Ft. Worth & D. S. P. Ry. Co. v. Judd, Tex.Civ.App., 4 S.W.2d 1032; City of Galveston v. Williams, 69 Tex. 449, 6 S.W. 860.

The undisputed evidence is that Federation withdrew its offer of dedication before acceptance by the City. In fact there was never an acceptance by the City of a dedication of the proposed street. The street was never opened and the property in question has never been used for street purposes. Young bought his property from Arakelian, not from Federation. It was Arakelian, appellant’s immediate predecessor in title, who failed to meet the condition under which Federation’s conditional deed of dedication was tendered. It is to be remembered that Arakelian’s purported deed of dedication was not filed until nearly three years after the expiration of his contract with Federation and about three and a half months after he sold his property to appellant.

The undisputed facts negative any plea of estoppel by appellant against Federation which might prevent a judgment in Federation’s favor decreeing its dedicatory deed of August 28, 1958 to be null and void and to be returned to Federation. Further, Federation is not liable in damages for irregularities, if there were any, committed by the City of Dallas in its zoning procedures in granting or refusing, a building permit, which is the exercise of a governmental function by the City. Appellant’s first two points on appeal are overruled.

Appellant’s third and fourth points in substance are that it was error to grant summary judgment in favor of the City of Dallas since there was a genuine issue of fact as to whether appellant had notice of the hearing and action by the City of Dallas in allowing an amended site plan for the Welfare Center of Federation, deleting the 25 foot strip, said action being taken after the present controversy arose and after this suit was filed; and said proceeding by the City was arbitrary and capricious.

The undisputed evidence, as we have pointed out, shows that the tract in question had never been dedicated for street purposes and that the City of Dallas had no right, title or interest in the property. Federation’s tender of a dedicatory deed was never accepted by the City. A deed not accepted by the grantee conveys no interest. Tanner v. Doty, Tex.Civ.App., 311 S.W.2d 508; Janes v. Stratton, Tex.Civ.App., 203 S.W. 386. The facts having been conclusively established, appellant’s plea that Federation’s dedicatory deed of August 28, 1958 be allowed to stand was properly denied by the trial court.

As to appellant’s suit for damages against the City, we must hold that if there were any irregularities in the City’s procedures in amending the site plan of the Welfare Center (we do not say there were any irregularities), the City is not liable for damages. Such amending action was an exercise of the zoning power of the City. It was a governmental function and in connection therewith the City is immune from liability for damages. Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475; Ellis v. City of West University Place, Tex.Civ.App., 171 S.W.2d 178, affirmed by Supreme Court, 141 Tex. 608, 175 S.W.2d 396. Appellant’s third and fourth points are overruled.

The judgment of the trial court is affirmed.


text:
    Felix J. CURRIE et ux., Appellants, v. MOHASCO INDUSTRIES, INC., et al., Appellees.
    No. 14198.
    Court of Civil Appeals of Texas. Houston.
    Oct. 17, 1963.

      Schmidt, Garrett & Hensley; Robert Q. Edmiston, Houston, for appellants.
    Ungerman, Hill, Ungerman & Angrist, Dallas, Steeger, Dohoney, Jones & Caldwell, J. Daffan Caldwell, Houston, for ap-pellees.
   WERLEIN, Justice.

Appellants appeal from the order of the trial court sustaining the pleas of privilege of appellees, Mohasco Industries, Inc., d/b/a Mohawk Carpet Mills Division and Shawnee Southwest, Inc., and transferring the cause as to the appellees to the County Court at Law No. 2, Dallas County, Texas.

The suit was brought in Harris County by Suniland Furniture Company against appellants herein, Felix J. Currie and wife, to recover an alleged balance owing said company by appellants on the purchase price of some 54 square yards of Mohawk carpeting. Appellants filed their answer and a cross-action as cross-plaintiffs and third-party plaintiffs against Suniland Furniture Company, Mohawk Carpet Mills, Shawnee Southwest, Inc., a corporation, and Turko-Persian Carpet Service. Cross-defendants, Suniland and Turko-Persian, both residents of Harris County, Texas, filed a joint answer, and Shawnee Southwest, Inc. filed its plea of privilege in proper form showing its residence and domicile to be in Dallas County, Texas. Mohasco Industries, Inc., a corporation, d/b/a Mohawk Carpet Mills Division, a corporation, also filed its plea of privilege to be sued in Dallas County. It also alleged that it was not incorporated as alleged by cross-plaintiffs, but that Mohasco Industries, Inc., a corporation, which operates and does business as Mohawk Carpeting Mills Division, is a New York corporation, which is operating and doing business in Texas under a permit or certificate of authority issued by the Secretary of State of Texas.

Thereafter, appellants filed an amended controverting plea, in which appellants alleged under oath that all the allegations in their petition filed October 26, 1962 (presumably their cross-action and third-party petition filed October 25, 1962) were true and correct, and in which appellants also adopted the allegations in their “Controverting Plea of Privilege” controverting the plea of privilege of Mohasco Industries, Inc., which controverting plea, however, is not a part of the record before us. In such amended controverting plea, appellants set out specifically the provisions of Exceptions 4, 5, 23 and 29a to Article 1995, Vernon’s Annotated Texas Statutes.

Appellants assert that under Subd. 4 of Art. 1995, V.A.T.S., they established their right to maintain their cause of action in Harris County against appellees, since they pled and proved a joint cause of action against Suniland and appellees. The law is well settled that it is not necessary for a plaintiff to plead and prove a cause of action against the non-resident defendant under Subd. 4 of Art. 1995, V.A.T.S., but it is sufficient if the plaintiff alleges a joint cause of action against the resident and non-resident defendant, or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the non-resident defendant that the two may be joined under the rule intended to avoid multiplicity of suits. Stockyards Nat. Bank v. Maples, 1936, 127 Tex. 633, 95 S.W.2d 1300.

It is necessary, however, for the plaintiff, in order to maintain venue as to the non-resident defendant, to both allege and prove a cause of action against the resident defendant. In the instant case, the cause of action, if any, as alleged or proved against Turko-Persian Carpet Service cannot have any bearing on the issue of venue as to appellees, because appellees are not alleged or shown to be connected in any way with such alleged cause of action, and hence are not necessary or proper parties thereto. It, therefore, devolved upon appellants, in order to sustain venue in Harris County as to appellees, under Subd. 4 of Art. 1995, V.A.T.S., to allege and prove a cause of action against Suniland Furniture Company. Harris v. Cleveland, Tex.Civ. App., 294 S.W.2d 235, error dism.

In their cross-action appellants alleged that Suniland, Shawnee Southwest, Inc., and Mohawk Carpet Mills, through their representations and advertisements, induced appellants to purchase the carpet; that they advertised and represented the carpet to be a fine carpet with fine body, texture and sheen which would withstand much hard wear and usage and would not stain or become soiled easily, and which would be easily cleaned without damage to the sheen, body or color of said carpet, and that it could be repeatedly cleaned while still retaining its original luster, body and color; and that notwithstanding the representations, assertions and advertising of the defendants, the carpet soiled easily and did not clean easily but left streaks and spots.

The evidence fails to disclose that Mr. Keith, the salesman representing Suniland in the sale of the carpet and the only one who is charged with making any representations, ever made any such statements to appellant, Mr. Currie. Mr. Currie testified that Mr. Keith, when told that appellants wanted to buy a carpet, said: “Well, this is a good carpet here * * * You can’t buy a better carpet at any price * * It will last for years. Your wife can clean it ⅜ * * I have the same thing in my house * * * We have had it for five years and we have never had it cleaned * * * ” Qurrie further testified that he had never heard the name “Shawnee Southwest Carpet Company” but had heard of Mohawk, and that he had never had any discussion with anyone from Mohawk Carpeting Company or Shawnee Southwest before he had the carpet cleaned by Turko-Persian.

Mrs. Currie testified that before going to Suniland she and her husband had considered several brands and Mohawk was one of them. When she went to Suniland she just picked out the color that she wanted. She further testified that Mr. Keith did not advise her or give her any brochure concerning cleaning procedures on the carpet but merely said it could be cleaned; that she used a vacuum cleaner on the carpet and noticed that where they frequently walked over the carpet it was becoming a little soiled, so she tried to clean it with Bissell Cleaner, and that it streaked the carpet over about a five foot square area where she cleaned it; that when she found it was dull and streaked she called Mr. Keith, who recommended the Turko-Persian Company as reliable, and that she had such company clean the whole carpet, after which it was dull all over and the sheen was gone, and there were dark and light spots on it.

Mrs. Currie also testified that she believed she was sure the carpet was Mohawk, but it had been a long time and she didn’t remember whether she observed any Mohawk label on it — she really didn’t remember; that Mr. Keith told her that she couldn’t get a better carpet for the price, and that it would maintain its sheen after it had been on the floor for five years, that he had one on his floor just like it. She further testified that the carpet had not shrunk or come apart at the seams but had just lost its sheen and wasn’t the same color she bought, and was too excessively faded after it had been cleaned.

Prior to the time she had Turko-Persian clean the rug she didn’t have any discussion with any representative of Mohawk and her only conversation up to that point was with Mr. Keith and she didn’t know whether she had ever heard of Shawnee Southwest — just Mohawk' — the name “Mohawk” was all that she could ever think of regarding carpeting; that she had read a lot of things and may have read about Mohawk but didn’t recall if she did, and that she couldn’t tell what specific ad she had read on the subject, but had looked at different stores, and that Joske’s of Houston had Mohawk, and she had always seen ads of Mohawk but didn’t know where. There is no evidence as to what any of such advertisements may have represented with respect to the carpet, other than the statement of Mr. Currie that his wife looked around, “and we had saw in the newspapers and magazines where Mohawk was good carpet and would last * * * ”

We are of the opinion that appellants failed to allege and prove a cause of action against Suniland and hence venue as to appellees could not be maintained in Harris County under Subd. 4 of Art. 1995, V.A.T.S. It is clear that the statements of Mr. Keith relative to the future wear of the carpet were mere expressions of opinion based upon his own experience and ownership for some five years of a similar carpet. There is no pleading or proof that Mr. Keith had expressed an opinion that he did not honestly entertain or that he had dishonestly made any representation for the purpose of deceiving appellants. O’Brien v. Von Lienen, Tex.Civ.App., 149 S.W. 723; Starnes v. Motsinger, Tex.Civ.App.1926, 278 S.W. 496

Appellants failed to plead and prove a prima facie cause of action against ap-pellees arising in whole or in part in Harris County, or for that matter anywhere else, and therefore the trial court properly refused to maintain venue as to appellees in Harris County under Subd. 23 of Art. 1995, V.A.T.S. Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605; Pan American Insurance Company v. White, Tex.Civ.App.1959, 321 S.W.2d 337.

Furthermore, in the absence of anything in the record to the contrary, this Court will presume that the trial court found the facts necessary to support its order sustaining appellees’ pleas of privilege. Quinn v. Dupree, 1957, 157 Tex. 441, 303 S.W.2d 769; Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363; Greenway Parks Home Owners Ass’n v. City of Dallas, 1958, 159 Tex. 46, 312 S.W.2d 235, 316 S.W.2d 74; 4 Tex.Jur.2d, p. 329, Appeal and Error, § 806.

Appellants’ contention that venue as to appellees should have been retained in Harris County under Subd. 5 of Art. 1995, V.A.T.S., is without merit. There is no evidence whatever of any contract in writing between appellants and appellees. Equally without merit is their contention that venue should have been retained in Harris County under Subd. 29a of Art. 1995. Appellees were not necessary parties to appellants’ alleged cause of action against either Suniland or Turko-Persian. Moreover, venue cannot be maintained under Subd. 29a of Art. 1995 in the county where suit is brought, if any defendant in the suit is a resident of such county. Ladner v. Reliance Corporation ,1956, 156 Tex. 158, 293 S.W. 758; Tarrant v. Walker, 1942, 140 Tex. 249, 166 S.W.2d 900; Lake v. Reid, Tex.Civ.App.1952, 252 S.W.2d 978.

Judgment'of the trial court affirmed.


author: POPE, Justice.

text:
    James W. EVANS, Jr., et al., Appellants, v. James W. EVANS, Sr., Appellee.
    No. 14157.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 16, 1963.

      T. P. Hull, J. Douglas McGuire, San Antonio, for appellants.
    Glendon Roberts, Bandera, for appellee.
   POPE, Justice.

James W. Evans, Jr., and Kathleen Bur-ket, have appealed from a summary judgment which construed the holographic will of their mother, Kitty Clark Evans. The judgment of the trial court was that the will vested the property in the testatrix’s husband, James W. Evans, Sr., the father of appellants. The issue upon which the parties meet is whether the words which appear after Kitty Clark Evans’ signature are mandatory or precatory. In our opinion the judgment should be affirmed. The will is as follows:

“The State of Texas'
County of Bandera
Known all men
by these presents that I, Kitty Clark Evans of the County of Bandera and State of Texas, being of sound and disposing mind and memory, and mind-full of the uncertainty of human life, do make and publish this my last will and testament,
“1st — I direct that all my just debts, should I have any, be paid by my executrix hereinafter named, as soon after my death as may be convinent.
“2d — I give demise and bequeath unto my husband James W. Evans all the estate, both real and personal of which I shall die possessed or in any way be entitled to, To have and to hold the same unto him and his heirs and assigns forever.
“3d — I appoint my said husband, James W. Evans executrix of this my last will and testament, and I direct that he give no bond, and that no proceedings may be had in any court over my estate, except to probate this will, and to file an inventory and appraisement,
“4th — In witness whereof I hereunto set my hand, signing my name in the presence of-and-who in my presence and at my request, and in the presence of each other sign their names hereto as witnesses.
“Kitty Clark Evans
“(Witnesses)
and after my death I advise my husband Jimmie, to immediately make another will leaving all property to our children Jimmie, Jr. and Kathleen after his death, and that every effort will be made to keep the children together as long as possible.
“Feb. 41”

While the will was written by a housewife who probably was poorly advised about the force of words in a will, it is seen that the second paragraph of the will unequivocally vested all of the testatrix’s estate in her husband. The addenda following the signature, judging the will as a whole, is what the testatrix called it, advice. It would strain the meaning to hold that the devisee was given no option about his own disposition of the property. Byars v. Byars, 143 Tex. 10, 182 S.W.2d 363. It is apparent that the testatrix’s advice that her husband leave the property to their children was coupled with another non-testamentary suggestion that he make every effort “to keep the children together as long as possible.”

This Court has recently construed a will which first made an outright bequest, followed by the expression, “It is my desire that Ermine Hunt (the legatee) pay to Fred B. Hunt, my son by a former marriage, the sum of Five Thousand Dollars ($5,000.00).” This was only a suggestion. Hunt v. Hunt, Tex.Civ.App., 329 S.W.2d 488. Tile same result was reached in other cases where words of even more directive force were used than those used by the testatrix in this case. Langehennig v. Hohmann, Tex.Com.App., 163 S.W.2d 402; Singer v. Singer, Tex.Civ.App., 196 S.W. 2d 938; Ricketts v. Alliance Life Ins. Co., Tex.Civ.App., 135 S.W.2d 725. This construction also accords with the principle of construction that the law favors the first taker and that language of a will should be construed to grant him the greatest estate which the will, by a fair construction is capable of passing. Banks v. Banks, Tex.Civ.App., 262 S.W.2d 119; Cragin v. Frost Nat. Bank, Tex.Civ.App., 164 S.W.2d 24.

The judgment is affirmed.


author: PRESLAR, Justice.

text:
    James E. KENNY, Appellant, v. EL PASO ELECTRIC COMPANY, Appellee.
    No. 5554.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 16, 1963.
    Rehearing Denied Nov. 6, 1963.
    Guinn & Guinn, Al Truex, El Paso, for appellant.
    Kemp, Smith, Brown, Goggin & White, El Paso, for appellee.
   PRESLAR, Justice.

Appellant brought this action for injuries received as the result of having lifted a metal pipe into contact with a transmission line of appellee. The trial was to a jury, and both parties moved for judgment on the verdict. The court ignored certain findings of the jury and entered judgment that plaintiff take nothing.

Plaintiff, as appellant, assigns as error the action of the trial court in (1) entering a judgment on the verdict, and (2) disregarding the jury’s answers to Issues Nos. 3, 4 and 5.

In response to special issues the jury found (and for purposes of clarity the actual numbers of the issues are used) : (1), that the defendant was not negligent in maintaining its lines at the point where the accident occurred; (3), defendant was negligent in not painting the cross-arms of its poles; (4), such negligence was a proximate cause of plaintiff’s injuries; (5), plaintiff did not contact the line in question with the metal pipe; (10), plaintiff was not negligent in failing to notify defendant he would use the pipe on the well on the occasion; (12), plaintiff knew, or in the exercise of ordinary care should have known, that touching the line in question with a conductive material could cause serious bodily injury; (13), plaintiff suffered damages in the amount of $100,000.

The bare elements of recovery in a case of this type require that the plaintiff prove that the defendant owed a legal duty to plaintiff which he violated, and that plaintiff suffered injury which was proximately caused by such violation. Plaintiff must be free of fault proximately causing his injury, for one cannot recover where he brings about his own injury, nor where such injuries are caused by both himself and the defendant.

In the instant case the jury found that the duty owed by defendant to plaintiff was to paint the cross-arms white. That, and Issue No. 1 above, were the only breaches of duty inquired about, and Issue No. 1 was answered for the defendant. The issue on failure to paint was based on a city ordinance requiring that all electric transmission lines carrying over 1000 volts must have the cross-arms on the poles painted white. The validity of that ordinance is questioned and becomes important, for it is readily noted that in the absence of an ordinance, the mere painting of cross-arms would be meaningless. The ordinance was passed in 1917, and in 1935 the City of El Paso enacted a comprehensive Electrical Code, which was similar in purpose to this ordinance, in that it provided various safety features in the construction and maintenance of electrical lines. However, it did not have any repealing provision, and none of its provisions were in conflict with the instant ordinance, nor were they inconsistent therewith.

We hold that the ordinance was valid on the day of the occurrence of the accident in question. To do otherwise would be to find it repealed by implication — repeal implied by the City’s act of enacting the more comprehensive code. See Tomassi v. City of San Antonio (Tex.Civ.App.), 268 S.W. 273, (error refused), holding ordinance not repealed in absence of inconsistency between the two. Also see Cunningham v. Henry (Tex.Civ.App.), 231 S.W.2d 1013 (err. ref’d., n. r. e.), holding new ordinance inconsistent with earlier one dealing with same subject matter amended in proportion as it introduced change.

The jury found that the failure to paint was negligence, and if we be right in our holding that the ordinance was valid, then it becomes negligence per se. But liability arises in such a case only if the violation is a proximate cause of the injury complained of. 40 Tex.Jur.2d 460; San Antonio & A. P. R. Co. v. Bowles, 88 Tex. 634, 32 S.W. 880; Waterman Lbr. Co. v. Beatty, 110 Tex. 225, 218 S.W. 363; Alpine Telephone Corp. v. McCall, 143 Tex. 335, 184 S.W.2d 830; St. Louis Southwestern R. Co. v. Wilkes, Tex.Civ.App., 159 S.W. 126 (err. dism.); J. S. Abercrombie Co. v. Delcomyn, 134 Tex. 490, 135 S.W.2d 978; Nuse v. Kormeier, Tex.Civ.App., 351 S.W.2d 382 (n. w. h.); East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (reh. den.). The rules for determining proximate cause are the same for negligence per se and common negligence. East Texas Motor Freight Lines v. Loftis, supra; Butler v. Herring, Tex.Civ.App., 34 S.W.2d 307; Tri-County Elec. Coop., Inc. v. Clair, Tex.Civ.App., 217 S.W.2d 681 (err. ref., n. r. e.).

We come now to a consideration of the question of whether this negligence was a proximate cause of the plaintiff’s injuries. It is our conclusion that it was not a proximate cause. The painting of the cross-arms was intended to put a person on notice and cause him to inquire of some possible danger. The thing he was to inquire about, he already knew — that the lines were dangerous. There can be no need to put one “on notice” of danger of which he has actual knowledge. The situation is somewhat analogous to our recording statutes which afford constructive notice in the absence of actual notice; but such “notice by law” does not come into play unless there is an absence of actual notice. It is our view that the violation of a duty to warn was not the proximate cause of the accident where the plaintiff had actual knowledge. Had the cross-arms been white, and had he inquired, he would have found what he already knew.

The record is conclusive against plaintiff by his own testimony that he knew the line was dangerous, and the jury found that he “ * * * knew that touching the electrical distribution line in question with a conductive material could cause serious bodily injury, or in the exercise of ordinary care should have known so.” The evidence shows that the electric lines in question were over plaintiff’s back yard at a height of some 24 feet, and the testimony and photographs show them to be quite obvious, except at a point where partially obscured by a tree. He had lived there some five or six months and bought the property with a reservation in his deed of the right of the defendant to maintain the line there. He testified to knowing these things and to knowing that the line was extremely dangerous if touched with an object which could conduct electricity. He further testified that he knew the lines had 220 volts, for that came to his well and house, and that such lines to his house came from transformers which reduced the current from the overhead lines in question. Plaintiff knew the lines to his house and well were insulated, and he testified that the overhead line in question looked like the insulated lines. There was no duty" to insulate and no issue was submitted thereon, but we think the question of his knowledge and appreciation of the danger is foreclosed by the jury’s finding and his own testimony that he knew the particular overhead line in question was “dangerous”. To argue the degree of danger between 220 volts and 1000 volts begs the question of knowledge of danger and assumes one would voluntarily expose himself to 220 volts but not 1000 volts. We cannot escape the fact that he appreciated the danger to the extent that he knew that touching the line in question with a conductive material could cause serious bodily injury. We conclude that plaintiff failed to prove the violation of a legal duty owed him by defendant which proximately caused his injuries, and the trial court properly disregarded the jury’s findings on such issues, numbers 3 and 4. Under the holding of the trial court and of this court, the finding on Issue No. 5 is immaterial.

It follows that appellant’s Point of Error No. 2 is overruled, and we also overrule appellant’s Point of Error No. 1 on the basis of the foregoing, and for the further reason that plaintiff’s conduct shows that he was not without fault in proximately causing his injuries.

The jury’s findings on Issue No. 12 that plaintiff knew, or in the exercise of ordinary care should have known, that touching the line in question with a conductive material could cause serious bodily injury, convicted him of contributory negligence. His action in so doing proximately caused his injuries, and the jury’s findings properly bring his actions within the definition of contributory negligence which is well established. It is the essence of contributory negligence that the person to be charged therewith knew, or by the exercise of ordinary care should have known, of the circumstance or circumstances out of which the danger arose. Texas & P. R. Co. v. Wylie, Tex.Civ.App., 36 S.W.2d 238; Johnson v. Murray Co., Tex.Civ.App., 90 S.W.2d 920 (dism. w. o. j.); Gholson v. Parrish, Tex.Civ.App., 92 S.W.2d 1113; Burton v. Billingsly, Tex.Civ.App., 129 S.W.2d 439 (err. ref.); El Paso v. Mendoza, Tex.Civ.App., 191 S.W.2d 102 (err. ref.); Brownsville Navigation Dist. v. Valley Ice & Fuel Co., Tex.Civ.App., 313 S.W.2d 104. Actions of plaintiff here almost exactly parallel the plaintiff's actions in the case of Texas Power & Light Co. v. Peterson, Tex.Civ.App., 288 S.W.2d 247, wherein liability was denied.

All points of error are overruled and the judgment of the trial court is affirmed.