text:
    J. R. DOWLEN, Appellant, v. W. M. KLAPPER and J. D. Groves, Appellees.
    No. 7391.
    Court of Civil Appeals of Texas. Amarillo.
    June 15, 1964.
    Rex E. Sullivan, Jr., Quanah, for appellant.
    Charles L. Reynolds, Childress, for ap-pellees.
   DENTON, Chief Justice.

Appellees, W. M. Klapper and J. D. Groves, instituted this suit against J. R. Dowlen to declare the existence of a public road; to enjoin Dowlen from obstructing said road; and for a mandatory injunction to require him to remove a fence which • it is alleged he erected within the boundary line of said public road; and for damages. The case was tried before the court without a jury. The trial court found in the judgment that the evidence supported plaintiffs’ allegations that a public road, as described, had existed since 1909; that the public road had been used by the public generally since its existence and had not been abandoned; and that defendant, his agents or employees have obstructed a portion of said road by constructing a fence within the boundary line of said road. The trial court then declared the public road, 30 feet in width, had existed since 1909 and still existed; and perpetually enjoined Dowlen from obstructing the road and required him to remove the fence from within the boundary of the roadway. No damages were awarded.

The strip of land involved here lay between a tract of land in possession of Dowlen, but owned by his- father, and two tracts of land owned by Klapper and Groves. These tracts had a common boundary line with the Dowlen property lying to the east and the Klapper and Groves land lying to the west of the common boundary line. Klapper’s land joined that of Groves to the north. The strip was one-quarter mile in length. In 1909 the predecessors in title in all three tracts, together with 8 other freeholders of Cottle County, signed and presented a petition to that county’s Commissioners Court for a second-class road. After describing the proposed road by metes and bounds, the court’s order accepting the petition provided :

“It appearing to the Court that notice of said petition has been given, as required by law, it is therefore ordered by the Court, that this road was settled by agreement five freeholders of said County, be and are hereby appointed a Jury of View * *

The record is silent as to whether or not a. Jury of View was actually appointed, and! whether or not a report was made to the-Commissioners Court. There is testimony the road was immediately thereafter established when fences on the three tracts, herein involved were set back 15 feet on each side of the boundary line. W. P. Wilson, one of the signers of the petition in 1909, testified at the trial, and testified, to the establishment of the road and the erection of the fences. Another elderly-witness, who owned the Groves land in the early 1920’s and who had lived in the area over 50 years, testified the strip was fenced on both sides and that the road was used’, by the general public. The roadway was graded and maintained at infrequent and irregular intervals by county employees. Except for an occasional reference to this, strip of land as a “lane” and testimony that the east line of the alleged strip was never-fenced, prior to the time the fence was. erected by appellant in 1962, there is no> direct denial the strip of land was used as a public road. Appellant takes the position there was some sort of roadway between the property, but that it was only 20 feet wide, and that such 20 foot strip did not extend onto the Dowlen land. Appellant admitted he had never attempted to prevent anyone from using the roadway. It is uncontradicted the roadway had been used' to some extent for over 50 years, but some-witnesses contended it had been used only-by the occupants of the land in the immediate vicinity. It is apparent the roadway was in a rather isolated area and was never heavily travelled, but this fact will not alter the conclusions to be reached.

No findings of fact or conclusions of law were requested or filed. In-the absence of such findings we must assume the trial court found every disputed fact in support of its judgment, and the judgment must be affirmed if there is evidence to support it upon any reasonable theory authorized by law. Moore v. Ham, (Tex.Civ.App.), 342 S.W.2d 825. The question of whether or not the roadway was dedicated is one of fact to be decided by the trier of the facts. O’Conner v. Gragg, 161 Tex. 273, 339 S.W.2d 878; Patterson v. City of Bowie, (Tex.Civ.App.), 295 S.W.2d 676. The trial court found the strip of land in question was a dedicated public road. The record clearly supports this finding. Several witnesses testified the road had been openly and continuously used by the public for over 50 years. Appellant admitted he had never objected to anyone using the roadway even though at one time he had erected a 20 foot gate across the road for the purpose of preventing his cattle from straying. No contention is made this gate prevented any travel along the road. There is ample evidence to support the trial court’s finding that the roadway was dedicated to a width of 30 feet.

Appellant further contends the petition and order of 1909 was void in that it did not show where the road terminates, and there was no record of the appointment of a Jury of View. Assuming, arguendo, that the order was void for the purposes of creating a statutory public road, it would manifest an intention on the part of these predecessors in title who signed the petition to dedicate the 15 feet of their land herein involved to public use. Under the applicable statute at the time, second-class roads were required to be a minimum of 30 feet in width. Art. 6873, Vernon’s Civ.St. 1914. Justice Smith in Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957, stated the applicable rule:

“Our courts recognize the doctrine that a dedication of land to public use need not be shown by deed, nor by public use for any particular length of time. It is sufficient if the record shows unequivocal acts or declarations of the landowner, dedicating same to public use, and where others act on the faith of such dedication, the landowner will be estopped to deny the dedication, or to make any future use of the property inconsistent with any purpose for which the land was dedicated. Common-law dedications, such as the one here involved, are subdivided into two classes, express and implied.”

When the subsequent opening of the road was accomplished by setting back the fences is considered along with the landowners presenting the petition for the establishment of the same road, we can reach only the conclusion the 30 foot road was properly dedicated. Brown v. Kelley, (Tex.Civ.App.), 212 S.W.2d 834; Greer v. Robertson, (Tex.Civ.App.), 297 S.W.2d 279, (Refused, NRE). It is sufficient that there be some clear, unequivocal act of dedication of the landowner evidencing an intention to set it apart for a public use and that others have acted in reference thereto and upon the faith of such intention. City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477; Tribble v. Dallas Railway & Terminal Co., (Tex.Civ.App.), 13 S.W.2d 933, (Writ Refused); Dunn v. Deussen, (Tex.Civ.App.), 268 S.W.2d 266, (Refused, NRE). The trier of the facts may be entitled to infer the fact of an intention to dedicate from long continued use by the public and the apparent acquiescence of the owner. Dunn v. Deussen, supra.

A careful study of the record leads us to the conclusion the evidence amply supports the trial court’s judgment that the road in question was a dedicated public road 30 feet in width. It follows the court’s findings relative to appellant obstructing the roadway was supported by the evidence.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    E. E. STUESSY and Fred Crooks, Appellants, v. BYRD, DAVIS AND EISENBERG, Appellees.
    No. 11244.
    Court of Civil Appeals of Texas. Austin.
    June 24, 1964.

      Felts & Robinson, Austin, for appellants.
    Byrd, Davis & Eisenberg, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from the grant of a temporary injunction. It embraces the law of interference. Appellees, plaintiffs in the Trial Court, are practicing attorneys. Appellants, defendants in the Trial Court, are businessmen. E. E. Stuessy is the owner of the contracting business and Fred Crooks is his office manager.

Michael DeLeuil was injured in the course of his employment on January 10, 1964. He employed plaintiffs on January 11, 1964, to represent him in a possible workman’s compensation suit. He started back to work, but without Stuessy’s personal knowledge, during the week of March 16, 1964, but did not secure a full release from his doctor until March 21, 1964. Stuessy learned of this recovery and when DeLeuil reported for work on March 23, 1964, he (DeLeuil) was given the alternative of going back to work and dismissing any litigation or keeping his litigation and giving up his job.

The appeal is predicated on four points and are to the effect that the Trial Court abused its discretion and erred in granting the temporary injunction because appellants were exercising absolute rights; because the contract is not the type to which the law of interference applies; because there was no malice, willfulness or unlawful intent, and finally because the petition was incomplete, general, contained no specific allegations or facts, and failed to allege lack of an adequate remedy at law and was unsupported by a verified affidavit.

The facts are not in dispute, DeLeuil was an employee of Stuessy, was injured, and employed appellees as his attorneys on the day following the accident.

DeLeuil received treatment, recovered and returned to work, and was told by Stuessy that the lawsuit must be forgotten if he wanted to continue to work.

DeLeuil testified:

“A I went into Mr. Stuessy’s office.
“Q When you got there was anybody else there?
“A Yes, sir, Mr. Stuessy and Fred Crooks, and Mr. Stuessy introduced a man, I think an adjuster from Travelers Insurance, if I am not mistaken now.
******
“Q (Mr. Eisenberg) State for me, if you would, as accurately as possible who Mr. Stuessy introduced and the character of the introduction.
“A I know Fred was in there. Fred Crooks brought me in the office.
“Q What does Mr. Crooks do?
“A I believe he is bookkeeper for Mr. Stuessy and Mr. Stuessy of course was sitting at his desk, and a man was sitting at my right, and I was sitting in front of Mr. Stuessy’s desk, and I am not saying for sure because it has been a little while ago, but I believe he said, —it was a funny name, and it just hit me for a minute. I was thinking about Mr. Stuessy, but I thought he said this man is an adjuster, or something, from Travelers Insurance Company.
******
“Q All right. Now, would you tell us as accurately as possible what conversations transpired in that room that day?
“A Well, Mr. Stuessy was concerned. You know he asked me how I was and how my back was, and he wanted to know what I was going to do. He said that I could not continue working there right now until I got rid of my lawyers. He said he could not have somebody working for him that was going to turn around and sue him. Pie said that to him or to anybody else he said it might look like I was after money from hiring the lawyers, and I told him, well, I was trying to get my workmen’s compensation checks, and he said, ‘Well, your lawyer has them tied up,’ and this other man sitting there—
* 5*C iji * * *
“A Well, this insurance man, like I say, I don’t recall his name, but they was talking, and he said they would— * * * As I was saying, Mr. Stuessy was talking, and he said, ‘Well,’ he said — he asked me how come I went ahead and got a lawyer. I said I was hunting compensation checks, but he said, well, it looked like to him that I was not too well interested in my job, for getting a lawyer. He said it appeared to him that I was after money by getting a lawyer. He said if I got rid of my lawyers, he said possibly there would be a settlement made right away, and then he asked that other man there, and, like I say, I can’t say for sure, because I don’t know who, and he asked him, and he said, ‘Yes, your lawyers have got your money tied up.’ That is what he said.
4» «J» ífc *!» ífs H*
“A That’s right, he did that at the first. He said that he was going to have to take me off the payroll until something was done about these lawyers. He said he could not have someone working for him who was going to turn around and sue him. He was very conscientious about that.
“Q Was there a subsequent meeting with Mr. Stuessy?
“A Yes, sir, there was one other. It was just Mr. Stuessy there and Fred Crooks.
“Q When did that occur?
:{« sjs ijs íjí jfs %
“A I believe Mr. Pannell — it was Mr. Panned come and got me. Fred and them called me and said Mr. Stuessy wanted to talk to me, and I went down to the office, and Fred Crooks and Mr. Stuessy was there, and he wanted to know what I decided about the lawyer deal, you know, about firing you ad or going to keep you or what. I told him I was going to talk to my dad, which I did, and I told him I would let him know by dinner that day, which I never did, because I went to work and never got a chance to, but I consulted you ad about that, and I told you about that meeting, and he was talking about a deal that if I would get a release from you ad, I could come back and get my job back.
* * # * * . *
“Q Do you want your job back with Mr. Stuessy?
“A Yes, sir, I would like to.
“Q Do you want to keep your lawyer?
“A Yes, sir, I do.
“Q If you have to choose between one or the other, which one do you choose?
“A My lawyer, sir.”

Mr. DeLeuil is not now and has not been in the employment of Stuessy for some time, but is employed elsewhere.

“ * * * The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion.” Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460.

Appellees’ contract with DeLeuil is one within the protection of equity, involving attorney and client relationship, and the Trial Court has wide discretion in granting temporary injunctions. Goss v. Star Engraving Company, Tex.Civ.App., El Paso, 377 S.W.2d 207.

The pleadings in this case are sufficiently specific and we have set out facts that are sufficient in effect to allege that appellees had no remedy at law.

The testimony was not in any manner denied by the defendants, who were present. Magnolia Petroleum Co. v. State, Tex.Civ.App., 218 S.W.2d 855, er. ref., n. r. e.; Thrift Finance Company v. State, Tex.Civ.App., 351 S.W.2d 653, er. ref., n. r. e.

Appellants contend that a contract by which an attorney is employed is unenforceable. This is incorrect. See 7 Tex. Jur.2d, Attorneys At Law, Sec. 113.

Appellants also contend that they have a legitimate interest of their own to serve in demanding that Mr. DeLeuil breach his contract with appellees or lose his job, i. e. freedom from litigation. We find no evidence here that Mr. DeLeuil was threatening to sue his employer or that he had any legal grounds for such a suit. The only litigation which appears to be in sight is against the compensation insurance carrier of appellant Stuessy.

We have given careful consideration to appellants’ brief and the authorities cited but believe the Trial Court’s order granting the temporary injunction was proper.

The judgment of the Trial Court is affirmed.

Affirmed.


author: PHILLIPS, Justice.

text:
    Francis A. MISKELL, Regulatory Loan Commissioner of Texas, Appellant, v. TERMPLAN INCORPORATED OF HOUSTON, Termplan Incorporated of El Paso, Termplan Incorporated of Oak Cliff, Termplan Incorporated of South Texas, Termplan Incorporated of Fort Worth. Francis A. MISKELL, Regulatory Loan Commissioner of Texas v. TEXAS PUBLIC FINANCE CORPORATION. Francis A. MISKELL, Regulatory Loan Commissioner of the State of Texas, v. BENEFICIAL FINANCE COMPANY OF HARRIS COUNTY. Francis A. MISKELL, Regulatory Loan Commissioner of the State of Texas, v. CONSOLIDATED CREDIT CORPORATION OF ARLINGTON et al.
    Nos. 11220-11224.
    No. 11230-11232.
    Court of Civil Appeals of Texas. Austin.
    July 8, 1964.
    Rehearing Denied July 22, 1964.

      Waggoner Carr, Atty. Gen., Charles B. Swanner, Howard M. Fender, Asst. Attys. Gen., Austin, for appellant.
    Irby & McConnico, Fort Worth, for Termplan Incorporated of Houston.
    R. Dean Moorhead, Austin, C. S. Baum-garten, St. Louis, Mo., Irion, Cain, Cocke & Magee, Dallas, for Texas Public Finance Corp.
    Clark, West, Keller & Clark, Allen Butler, Dallas, for Beneficial Finance Co. of Harris County.
    Graves, Dougherty, Gee & Hearon, Austin, Berry & Browne, Charlotte, N. C., for Consolidated Credit Corp. of Arlington.
   PHILLIPS, Justice.

Inasmuch as the factual situations and the issues involved in all of the above styled cases are interrelated and dependent upon the constitutionality of a portion of the same section of the same statute, hereinafter described, the cases were consolidated for trial in the court below, were consolidated for argument before this Court, and will be considered together in this opinion.

This is an appeal by Francis A. Miskell, Regulatory Loan Commissioner of Texas, hereinafter referred to as appellant, from a judgment of the trial court setting aside his order denying regulatory loan licenses to the various loan companies set out above. The loan companies will hereinafter be referred to as appellees.

The licenses in question were applied for by appellees by authority of the Texas Regulatory Loan Act of 1963 which is now designated as Art. 6165b, Vernon’s Civil Statutes.

This act was passed by the 58th Legislature May 23, 1963, and became effective August 23, 1963. The purpose of the act was to regulate the small loan industry in Texas. Appellees do not contest the authority of the State to regulate the industry, however, they do attack the constitutionality of Section 7(d) of the act which requires that at least 51% of the capital stock of the corporations subject thereto be owned by citizens of the State of Texas. The act provides further that a corporate applicant which does not meet such requirement be granted a license only for such place or places of business as it was operating on January 8, 1963.

The trial court held that the above mentioned provisions of Section 7(d). are unconstitutional and invalid and in violation of Section 3, Article 1, and Section 19, Article 1 of the Constitution of Texas, Vernon’s Ann.St., and the Equal Protection and Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.

We affirm the judgment of thé trial court.

The trial court held, and we so hold, that by virtue of the severability clause in Section 31 of the Act, the provisions of the Act are severable and any unconstitutional portions of Section 7(d) can be held for •naught without disturbing the remainder of the act.

None of the appellees’ capital stock is held by 51% or more by citizens of the State of Texas, however, appellees find themselves in slightly differing factual situations.

Beneficial Finance Company of Harris County, a Texas corporation can generally be classified as a new company desiring to do'business since the passage of the Act. Beneficial is a wholly owned subsidiary of Beneficial Finance Company, a Delaware corporation, the stock of which is listed on the New York stock exchange. Beneficial was not doing business in the State prior to January 8,1963.

Consolidated Credit Corporation of Arlington, Texarkana and Waco are three domestic corporations wholly owned by Consolidated Credit Corporation, a North Carolina corporation. These corporations were chartered after January 8, 1963, began business and had loans outstanding before the passage of the act.

Termplan Incorporated of Houston, El Paso, Oak Cliff, South Texas and Fort Worth are five domestic corporations whose stock is totally owned by Industrial Finance and Thrift Corporation, a Louisiana corporation. Each of these corporations (except Termplan Incorporated of Oak Cliff which began doing business June 24, 1963) were incorporated after January 8, 1963, but prior to the passage of the act and prior to the effective date of the act.

Texas Public Finance Corporation, a domestic corporation, has its entire - stock owned by American Investment Company, a Delaware corporation with principal offices in St. Louis, Missouri. This corporation for a lengthy period both prior and subsequent to January 8, 1963, engaged in business in El Paso, Texas, and now desires to open a branch office in Dallas.

Under the provisions of the act stated above and under the rulings of the Loan Commissioner none of the above mentioned appellees can legally operate in Texas with the exception of Texas Public Finance Corporation which is limited to the operation of its office in El Paso.

All of the appellees have made application to the Loan Commissioner for licenses to do business as required by the act and all have been reported by the Commissioner to have complied with the act in every respect, are qualified and entitled to licenses to operate under the act with the exception of the stock ownership provision.

It is undisputed that other qualified domestic corporations have been granted licenses because they were doing business in this State under charter or license prior to January 8, 1963, although 51% of their stock is not owned by residents of Texas.

As stated above, each appellee is a corporation organized under the laws of the State of Texas and has its principal office and place of business in the State of Texas.

Under Section 10(c) of the act a qualified person or corporation is entitled to a maximum of 60 licenses to operate 60 separate offices.

We hold that Section 7(d) discriminates between two domestic corporations on the basis of the residence of their shareholders and the length of time each has been engaged in business. That the apparent discrimination is invidious to the due process and equal protection clauses of the Constitutions of Texas and of the United States.

In Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957) the Supreme Court of the United States held that a statutory discrimination must be based on differences that are reasonably related to the purposes of the act in which it is found.

We have reviewed the entire record and are unable to find any differences that would uphold statutory discrimination between Texas corporations whose Texas citizens own 51% or more of the stock and Texas corporations whose stock is not so held.

Section 1 of the act entitled Declaration of Legislative Intent does not provide any clue for such a discrimination. From a history of the small loan business in Texas compiled by the Legislative Council with an eye toward the regulatory legislation that was subsequently passed, we find that the principal evils were overcharges on loans-usury; “flipping” (renewal) and pyramiding loans; and harassment of borrowers in connection with delinquent loans. Moreover, it was stipulated between the parties that at least 90% of the usury suits which the Attorney General instituted in a given year against loan companies were instituted against Texas-owned businesses, rather than against loan companies such as appel-lees.

The Attorney General in representing appellant seeks to justify the discrimination by citing cases which sustain certain dis-criminations in the regulation of the liquor industry. His principal cases here are DeGrazier v. Stephens, 101 Tex. 194, 105 S.W. 992, 16 L.R.A.,N.S., 1033, where reasonable residence requirements were upheld to insure that nonresidents and others not amenable to process by the State do not use their immunity to evade the regulatory laws of the State; Texas Liquor Control Board v. Continental Distilling Sales Co., 203 S.W.2d 288, Tex.Civ.App., er.ref., upheld Article 666-15]/2 of the Penal Code, which prohibited a person holding a nonresident seller’s permit from holding or having an interest in the permit or business of a person authorized to import liquor into the State for resale. In upholding the statute, the court emphasized that the 21st amendment to the Constitution of the United States gave the State broad powers to control the transportation of liquor into and within the state. The discrimination cases in the liquor field are of little help as they are treated in a class to themselves. This is especially so since the adoption of the 21st amendment to the Federal Constitution.

The Attorney General also cites Commercial Insurance Companies of Newark, N. J. v. Adams, Tex.Civ.App., 366 S.W.2d 801, by the Houston Court of Civil Appeals in which error was refused. This case upheld the constitutionality of Section 27 of Article 1995 which allowed a wider venue for actions against foreign corporations than was provided for in Section 23 of the same statute. The court viewed Section 27 as tending to place foreign corporations on a parity with domestic corporations with respect to ' venue and stated: “There is little doubt that the difficulty of securing service on foreign corporations was a factor inducing the Legislature to provide a wide venue for actions against them.” ■

Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959) cited by the Attorney General, does not permit a State to discriminate against a nonresident but in fact upheld a State law which exempted from personal property taxes merchandise belonging to nonresidents of the State if held in a warehouse for storage only. The discrimination here was not against nonresidents but against residents, a -factor which a majority of. the court deemed decisive.

Nor do we believe that Metropolitan Casualty Insurance Company of New York v. Brownell, 294 U.S. 580, 55 S.Ct. 538, 79 L.Ed. 1070 (1934) .is in point here as this case upheld a State law permitting domestic insurance companies to operate under a statute of limitations lesser- in duration of time than 'foreign insurance companies. The difference in treatment was held to be reasonable because of the difficulties often arising in settling claims with insurance companies whose business offices might be located outside of the. State.

The Attorney General’s argument that the Legislature had the power to insert the offensive provisions of the act quoted above because engaging in the small loan business in Texas is not a “right” but a mere “privilege” is foreclosed by Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796. In Schware the court held that a State cannot, by referring to the practice of the law as a privilege rather than a right, prevent a person from practicing for reasons that qre not valid. Also see Hornsby v. Allen, 5 Cir., 326 F.2d 605, (1964).

Appellees are domestic corporations subject to the same State police powers as any other' domestic corporation. They are equally amenable to the arm of the law as any other domestic corporation. We have not been shown where the stock ownership requirement of 7(d) is reasonable in any respect or wherein the State of Texas or the general welfare of its citizens would be prejudiced should this requirement be excised from the act. Hence, we have a discrimination that is unlawful.

It takes little imagination to picture the jeopardy in which corporations presently having the ownership required would be placed through the routine vagaries of the stock market or by possible heirs of stockholders who might be foreign citizens.

Numerous decisions can be found by both out state and Federal courts proscribing legislation such as the stock ownership requirement before us.

A stock ownership requirement such as that in Section 7(d) was passed upon in Edwards v. Leaver, D.C., 102 F.Supp., 698, 1952. Here a Rhode Island statute was involved which limited the right to obtain a commercial fishing license to individuals who were residents of the State or domestic corporations that had 51% or more of their stock owned by residents of Rhode Island. The court stated:

“This disparity of treatment between residents and non-residents requires an adequate explanation if the statute is to be sustained as a proper exercise of the state’s police power.”

The Court held the statute unconstitutional saying:

“It has not been shown that any local evils, caused by non-residents, would be eliminated by this statute.”

The court also held that corporations were “persons” within the meaning of the equal protection and due process clauses of the Constitution of the United States, and that corporate plaintiffs which did not meet the 51% standards were entitled to relief against the discrimination effected by the statute. In respect to corporations being entitled to equal protection clause guaranteed by the Fourteenth Amendment see Louis K. Liggett Co. v. Lee, 288 U.S. 517, 53 S.Ct. 481, 77 L.Ed. 929 (1933).

In three other “fishing cases”, residency or nonresidency within a State was also held to be an unconstitutional criterion for the granting or withholding of licenses. Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156 (1948); Steed v. Dodgen, 85 F.Supp. 956 (W.D.Tex.1949); Dobard v. State, 149 Tex. 332, 233 S.W.2d 435. Although these cases involved the rights of nonresident individuals, rather than corporations, their rulings and rationale appear equally applicable to corporations since corporations are also embraced by the equal protection and due process clauses.

Additionally, in Ex Parte Baker, 127 Tex.Cr.R. 589, 78 S.W.2d 610, and Linen Service Corporation v. Abilene, Tex.Civ.App., 169 S.W.2d 497, writ refused, courts of this State have stricken down municipal ordinances which gave a preference to a resident engaged in a particular business and discriminated against a nonresident engaged in the same business. In Ex Parte Rodgers, 371 S.W.2d 570 (Tex.Crim.App.) the Court held unconstitutional a city ordinance which, while it did not in so many words discriminate against nonresidents, nevertheless had such effect. In that case the ordinance restricted the unloading of gasoline within a city, but bulk plants were excluded from the restrictions. Standard had a bulk plant within the city, but its competitor, Mobil Oil Company, did not. The Court held unconstitutional such a preference of “resident” Standard over “nonresident” Mobil.

It is not necessary to unduly prolong this opinion with additional cases that could be cited in this respect. The requirement in question is patently discriminatory, of no lawful purpose, consequently unconstitutional.

The judgment of the trial court is affirmed.

      . “(d) No person who is not a citizen of the State of Texas shall be eligible to receive a license under this Act. No license shall be issued to a corporation unless the same be incorporated under the laws of this state, and at least fifty-one per cent (51%) of the stock of the corporation is owned at all times by citizens of the State of Texas and who possess the qualifications required of other applicants for license; provided, however, the restrictions contained in the preceding clause shall not apply to domestic or foreign corporations which are doing business in this state under charter or license prior to January 8, 1963, but any such corporation which does not meet the requirements of such restrictions shall not be issued a license for any place of business other than those being operated by it on January 8, 1963. Partnerships, firms, and associations applying for li-eenses shall be composed wholly of citizens possessing the qualifications above enumerated. Any person holding a license under this Act who shall violate any provision hereof, or any rule or regulation promulgated hereunder, shall be subject to forfeiture of its license and if a corporation, its charter shall be subjected to forfeiture, and it shall be the duty of the Attorney General, when any such violation is called to his attention, to file suit for such forfeiture of charter and cancellation of the license in a District Court in Travis County, Texas.”

      . “Section 1. The Legislature finds as facts and determines:
      “(a) The Legislature should, in obedience to Article XVI, Section 11, of the Constitution of Texas, as amended in 1960, classify loans and lenders, license and regulate lenders, define interest and fix a maximum rate of interest pertaining to licensees under this Act.
      “(b) Consumer loans make an essential and useful contribution to our society in that they provide the only means by which many individuals and families can secure credit to improve their standards of living and to meet unforeseen financial emergencies.
      “ (e) There exists among citizens of this state a widespread demand for such loans, the scope and intensity of which has been increased progressively by many social and economic forces.
      “(d) Due to the lack of adequate regulation, many unethical and unscrupulous lenders are engaged in the making of loans of this type and are subjecting borrowers to abuses.
      “(e) These facts characterize and distinguish loans with cash advances of One Thousand Five Hundred Dollars ($1,500) or less, and legislation to control this class of loans is necessary to protect the public welfare.
      “(f) It is the intent of the Legislature in enacting this statute to bring under public supervision those engaged in the business of making such loans, to eliminate practices that facilitate abuse of borrowers; to establish a system of regulation for the purpose of insuring honest and efficient loan service and of stimulating competition in such lending; to provide for interest that is fair, just and equitable, and to provide the administrative machinery necessary for effective enforcement.”

      . Report of the Texas Legislative Council to the 57th Legislature entitled “The Small Loan Business in Texas through 1961,” Part L


author: STEPHENSON, Justice.

text:
    Herschel Ann Thomas WIMBERLY et vir, Appellants, v. J. Leon PARISH et al., Appellees.
    No. 6611.
    Court of Civil Appeals of Texas. Beaumont.
    May 28, 1964.
    Rehearing Denied June 24, 1964.

      Roger J. Conway, Orange, for appellants.
    Sexton & Owens, Orange, for appellees.
   STEPHENSON, Justice.

This is an appeal from an order of the District Court dismissing a petition for a writ of certiorari to review a guardianship proceeding in the County Court.

’■ The petition was filed by Herschel Ann Wimberly, individually and as next friend of- her adoptive mother, Annie Thomas. July 7, 1961, J. Leon Parish was appointed Guardian of the Estate of Annie Thomas. This petition was filed -in the District Court April 12, 1962 alleging certain' irregularities including the following:

1. No personal service of citation upon Annie Thomas as required by Section 130 of the Probate Code.
2. The guardian’s bond was insufficient.
-3: Approval of certain expenses.
,4,. , Approval of application to resign.

Tt was prayed that the matters raised in the ■ petition1 be tried'de novo, and for •júdgníent- disapproving the application to resign,’. an order for ’an independent audit of the estate, that all expenditures made contrary to the law be disallowed, that all expenditures in excess of” the income of -the ¡estate be disallowed and. that the guardian’s appointment be declared illegal. •

l-: The’ District Judge ordered a writ' of Certiorari- be issued upon applicant’s making a bond. The guardian and his bondsman filed a motion to dismiss which was heard and granted. Finding of Fact and Conclusions of Law were filed by the trial court.

Petitioners contend the court erred in finding as a fact that petitioners had not alleged they had been or would be injured or in what manner the estate was being wasted or depleted to their injury. The petition contained six alleged irregularities in the guardianship proceeding including those set forth above, and then contained this paragraph:

“Such errors were and are to the prejudice of Mrs. Annie Thomas and her estate in that the estate is being wasted and depleted by the expenditures of money and property of said estate in a manner contrary to law by a guardian illegally appointed and without lawful authority, acting with a bond insufficient in law to protect the estate, at a time and under circumstances making it impossible for the ward, Mrs. Annie Thomas, to protect herself or properly care for her own interest.”

The law is well settled, as respondent agrees in his brief, that in this type of suit the incompetent is the real party in interest. Safeway Stores, Inc. of Texas v. Rutherford, 130 Tex. 465, 111 S.W.2d 688. The pleadings were sufficient to apprise the court of the matters involved, especially in the absence of a special exception.

Respondent contends the petitioners lacked the capacity to bring this suit as next friend, because the ward had a legal guardian. The application for writ of certiorari alleges no personal service was had on Mrs. Annie Thomas as required by Texas Probate Code, Section 130, V.A. T.S. The question as to the legality of the guardianship has not yet been determined. Further, the motion to 'dismiss did not challenge petitioners’ right to bring this suit because of lack of capacity. Also, the motion to dismiss was not sworn to, and Rule 93(b), Texas Rules of Civil Procedure, provides that a plea as to lack of authority to sue is waived unless it is a sworn plea. McGinnis v. McGinnis, Tex.Civ.App., 267 S.W.2d 432.

Petitioners contend the court erred in finding that there was no evidence that plaintiffs would be injured, or that the estate was being wasted or wrongfully depleted. This matter was never heard on the merits, but was disposed of by granting a motion to dismiss. We must take the allegations contained in the petition as true, since there was a judgment of dismissal, and the only evidence heard was on the motion to dismiss. Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816.

The trial court also found as a fact that Annie Thomas, the ward, was the adoptive parent of Johnny D. Marr, that he was a party adversely interested in this proceeding, and that he had not been made a party either in the Bill of Review filed in the Probate Court or in this present action. The trial court then found as a conclusion of law that it lacked jurisdiction to hear this petition for writ of cer-tiorari for the reason that Johnny D. Marr was not made a party.

Rule 344, T.R.C.P., provides that a petition for a writ of certiorari shall state the name and residence of each party adversely interested. The law is also clear that in this type of proceeding all parties in interest and whose rights will be directly affected by the decree must be made parties. McDonald v. Edwards, 137 Tex. 423, 153 S.W.2d 567. As we have stated before, in this opinion, the real party in interest is the incompetent. Safeway Stores, Inc. of Texas v. Rutherford, supra. The only other necessary parties to this suit were the guardian. and his bondsman. Johnny D. Marr was not a party adversely interested so as to be a necessary party.

The trial court found as a conclusion of law that Herschel Ann Wimberly was judicially and equitably estopped from taking an adverse position in this petition to the position she assumed in the probate court. The statement of facts contains the testimony of Herschel Ann Wimberly both in chambers and in open court, and an ex parte affidavit made by her. It also contains the testimony of Mary Reese and County Judge Sid J. Caillavet. A careful study of all of this testimony shows that Herschel Ann Wimberly was reluctantly bringing this action upon the insistence of her husband. Regardless of this, as already pointed out in this opinion twice, the real party at interest is the incompetent, and no estoppel on the part of Herschel Ann Wimberly as an individual is before this court. Her acts as an individual did not bind the estate of Mrs. Annie Thomas or Mrs. Annie Thomas. The petition for a writ of error must be heard subject to the limitations set out in this opinion.

The trial court also found as a conclusion of law that it lacked jurisdiction to hear a petition for a writ of cer-tiorari in so far as it concerned the approval by the County Court of claims paid by the guardian, or the court’s approval of the final accounting for the reason that the proper recourse is by appeal. The trial court also found as a conclusion of law that it had no jurisdiction to hear certain enumerated questions because they had not been raised in the Probate Court. The statutory writ of certiorari provided for by Sec. 30 of the Probate Code is not to be confused with the common law writ of certiorari. A full discussion of the distinction is set forth in Clayton v. Clayton, Tex.Civ.App., 308 S.W.2d 557, a part of the opinion being as follows:

“The writ of certiorari sought by respondents is a statutory writ and not a common law writ. The Supreme-Court in McDonald v. Edwards, supra, stated [137 Tex. 423, 153 S.W.2d [567] 569] : 'This Court has liberally construed the rights of the parties to invoke the jurisdiction of the district court in certiorari proceedings to review the orders of the probate court’ (citing numerous authorities), and then quoting from Jirou v. Jirou, 104 Tex. 136, 135 S.W. 114, further stated: ‘It is true that the jurisdiction of the district court over the county court is appellate in its nature, but it may be exercised by a trial Mj>ow the /acts o/ the ££«•£ as well as by a revision of the record made in the lower court.’ The Supreme Court in McDonald v. Edwards, supra, further stated:
‘It is true that a certiorari proceeding in a probate matter is one of the methods of appeal provided by statute. At the same time, it is a direct proceeding. * * * The rule has been stated in 21 Tex.Jur., pp. 376 and 377, in the following language:
“ ‘The proceeding by certiorari is direct and it is in no sense a collateral attack. While it is appellate in its nature, it seems that the powers of the court in the trial and disposition of the matters in issue are not precisely the same as those of an appellate or revisory court.
“ ‘The statute provides that the trial in the District Court shall be de novo, * * *. Accordingly, it has been held that the District Court may neither affirm nor reverse the order of the County Court upon the record sent up; it must retry the case upon the merits as if it were an original suit.’

As to claims against estates, we quote again from McDonald v. Edwards, 137 Tex. 423, 153 S.W.2d 567, 569, 570, as follows:

“Plaintiffs in error contend that the rule is settled that the remedy of cer-tiorari is not available to set aside orders of the probate court approving •claims against estates. We agree that such is the rule in this State. Jones v. Wynne, 133 Tex. 436, 129 S.W.2d 279; De Cordova v. Rogers, 97 Tex. 60, 75 S.W. 16.”

.Reversed and remanded.


author: GRISSOM, Chief Justice.

text:
    David BENSON et al., Appellants, v. Harold Glen HANEY et ux., Appellees.
    No. 3891.
    Court of Civil Appeals of Texas. Eastland.
    June 26, 1964.

      Simon & Simon, Sheldon Anisman, Ft. Worth, for appellants.
    George R. Edwards, Marvin Lewis, Dallas, for appellees.
   GRISSOM, Chief Justice.

Janie Lee Haney, while employed as a waitress in a restaurant in Dallas County, walked around a counter, slipped in a puddle of water on the restaurant floor, fell and was injured. She and her husband sued David Benson and Raymond Nichols, who were alleged to be doing business as Lone Star Drive In Restaurants, for damages. Benson and Nichols filed pleas of privilege to be sued in Tarrant County, where they reside. Their pleas were controverted by allegations that they had committed a trespass in Dallas County and, therefore, suit could be maintained in Dallas County under Vernon’s Ann.Civ.St., exception 9, Article 1995. The pleas of privilege were overruled. Benson and Nichols have appealed.

Benson and Nichols had some relationship to a corporation, with a different name than that alleged by plaintiffs, that owned the restaurant and Benson owned the controlling interest therein. Mrs. Haney’s testimony was to the effect that as she walked around a counter she slipped and fell in a puddle of water on the restaurant floor; that she did not know how the water got on the floor, nor how long it had been there but that she had been by that spot several times on the day of the accident and had not seen it; that employees of the restaurant corporation were mopping the floor at the time, but they had not mopped, and were not then mopping, the place where she fell.

To maintain the suit in Dallas County appellees had the burden of proving by a preponderance of the evidence the commission of a trespass by appellants in that county. Article 1995, subdivision 9, as amended Acts 1953, 53rd Legislature, p. 390.

The Supreme Court of Texas, in 1891, held that trespass embraced only actions for such injuries as result from wrongful acts willfully or negligently committed and did not include those which result from a mere omission of duty. Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645. See also City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466 and 29 Tex. Law Review 518. But, by the amendment of subdivision 9 of Article 1995 in 1953, it was provided that “This subdivision shall not apply to any suit based upon negligence per se, negligence at common law or any form of negligence, active or passive.” Therefore, the meaning of trespass has been restricted by statute so that it does not now include any form of negligence. There was no evidence that appellants did anything which had any possible connection with the water being on the floor or appellee’s injury.

There was no evidence of the venue facts that are required to be established to maintain the suit against appellants in Dallas County under subdivision 9, Article 1995. The case was fully developed on the venue question. The judgment is reversed and the case is ordered transferred to Tarrant County. Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593, 594; Odom v. Parker, Tex.Civ.App., 173 S.W.2d 328; Keystone-Fleming Transport, Inc. v. City of Tahoka, Tex.Civ.App., 277 S.W.2d 202, 211; Chiles v. Goswick, Tex.Civ.App., 225 S.W.2d 407, 410, affirmed 148 Tex. 306, 225 S.W.2d 411.


author: PER CURIAM.

text:
    Adalberto HINOJOSA et al., Appellants, v. J. M. LONGORIA et al., Appellees.
    No. 14327.
    Court of Civil Appeals of Texas. San Antonio.
    July 9, 1964.
    Rehearing Denied July 22, 1964.
    ■ Pope & Pope, Rio Grande City, and Hill, King & McKeithan, Mission, for appellants.
    F. R.. Nye, .Jr., and Emilio Gutierrez, Rio Grande City, for appellees.
   PER CURIAM.

The question presented'by this appeal is whether three contestants filed their election contest within ten days from the date of declaring the result of the election, as required by Sec. (3), Article 13.30, V.A. T.S., Election Code. The trial court sustained a plea to the jurisdiction on the grounds that the contest was filed one day late and contestants have appealed. We must determine whether in computing the time, the day of the event should be included, as the trial court ruled, or excluded as contestants urge.

On May 5, 1964, the Starr County Democratic Executive Committee certified the contestees as winners of the May 2 Democratic primary. Contestants filed this contest on May 15. Contestants urge that the Texas Rules of Civil Procedure govern the computation of time in election suits and that Rule 4 expressly excludes the day of the event. In our opinion, the Supreme Court has decided that election contests are not governed by Rule 4. Nunn v. New, 148 Tex. 443, 226 S.W.2d 116. However, the Supreme Court, independent of Rule 4, held in Home Insurance Co., N. Y. v. Rose, 152 Tex. 222, 255 S.W.2d 861: “The established rule in this state and in most of the other states is that when time is to be computed from or after a certain day or date, the designated day is to be excluded and the last day of the period is to be included unless a contrary intent is clearly manifested by the contract.”

Nunn v. New, supra, was an election recall case and the court had to determine whether a recall petition was filed within the required thirty days after the filing of an affidavit with the City Secretary. The affidavit was filed on December 3, 1948. The petition was filed on January 3, 1949. The Court in stating the facts said that the petition was filed thirty-one days after the affidavit. If the Supreme Court had counted the day of the event, the filing of the affidavit, the time would have been thirty-two days. It is our judgment that the time requirement in Sec. (3), Article 13.30 of the Election Code, contemplated the exclusion of the day of the event from which the time is measured. By counting the days in this manner, the election contest was filed on the tenth day and was timely. Hardy v. City of Throckmorton, Tex.Civ.App., 70 S.W.2d 775. The plea in abatement should not have been sustained.

The judgment of the trial court is reversed and the cause remanded. Motion for rehearing must be filed on or before July 16, 1964.


text:
    GULF OIL CORPORATION, Appellant, v. Jack MARTINDALE et al., Appellees.
    No. 6626.
    Court of Civil Appeals of Texas. Beaumont.
    June 18, 1964.
    Rehearing Denied July 15, 1964.
    Wm. F. Erwin, Jr., Houston, for appellant.
    Barber & Seale, Jasper, for appellees.
   STEPHENSON, Justice.

This is an appeal from an order overruling defendant’s plea of privilege. The parties will be designated here as they were in the trial court

Plaintiffs relied upon Section 27 of Article 1995, Vernon’s Ann.Civ.St., in their controverting affidavit as the ground for maintaining venue of this case in Jasper County. Defendant contends plaintiffs failed to plead and prove a cause of action on the venue hearing.

Plaintiffs brought this suit for damages for wrongful injunction. In a prior suit the defendant had secured an injunction against two of the plaintiffs and others enjoining them from interfering with the operation of a service station as a “Gulf” station, from using defendant’s equipment except with defendant-products, and from painting, altering or removing defendant’s equipment. This court, in such prior suit, 345 S.W.2d 810, reformed the judgment of the trial court by holding plaintiffs were properly enjoined from using defendant’s equipment and that plaintiffs were improperly enjoined in the other respects.

It was stipulated that defendant was a foreign corporation. Plaintiffs alleged that defendant was a resident of Harris County, Texas. In order to maintain venue in Jasper County the plaintiffs had to plead and prove that a cause of action against the defendant arose in Jasper County.

First, as to pleading a cause of action, plaintiffs alleged that on a certain date defendant wilfully and maliciously caused to be issued a temporary restraining order, which later became a temporary injunction, which effectively prevented plaintiffs from operating a certain service station as a “Mobil” station. It was alleged that the injunction was wrongful and that it was so held by the Court of Civil Appeals. The petition also alleged that as a direct and natural result of said wrongful injunction plaintiffs were damaged in a certain sum. We find this sufficiently alleged a cause of action for wrongful injunction.

As to the proof of a cause of action, plaintiffs introduced in evidence their controverting affidavit, their original petition which was made a part 'of their controverting plea, the judgment of the trial court in the former suit granting the injunction and the Mandate of this Court of Civil Appeals. Plaintiffs offered the testimony of J. B. Hinkie, one of the plaintiffs, to the effect that he was one of the partners in the company that had the Magnolia distributorship in Jasper along with Jack Martindale and F. W. Martindale, the other plaintiffs in this present suit. He further testified that he and his partners did not sell their products at the service station in question during the time the injunction was in force, and that they were damaged by not being able to sell their products during such period of time. He further testified that they began selling their products after the injunction was dissolved and made a profit. J. B. Hinkie had not been made a party to the original injunction suit.

We are aware that in a venue hearing the plaintiffs had the same burden of proving a cause of action as on a trial on the merits. Compton v. Elliott, Tex.Com.App., 126 Tex. 232, 88 S.W.2d 91. However, it was not necessary to establish the amount of damage, but only to prove that there were some damages. The amount of damages is not a venue fact. Hawkins v. Schroeter, Tex.Civ.App., 212 S.W.2d 843. This point is overruled.

Defendant contends this cause of action arose in Harris County because the temporary restraining order was signed by a district judge in Harris County. No cases are cited supporting this position. We hold that the filing of the application for the temporary restraining order in Jasper County is the determining factor, and and not the location of the judge at the time the order was signed. Defendant’s third point was determined by the former suit. The points are overruled.

Affirmed.


author: CLAYTON, Justice.

text:
    Della Sue Gray BLAKNEY et al., Appellants, v. PANHANDLE & SANTA FE RAILWAY COMPANY, Appellee.
    No. 5604.
    Court of Civil Appeals of Texas. El Paso.
    June 17, 1964.
    Rehearing Denied July 22, 1964.
    Tom Sneed, John J. Watts, James D. Cunningham, Odessa, Maurice R. Bullock, Ft. Stockton, for appellants.
    Snodgrass, Smith, Rose & Finley, W. Truett Smith, San Angelo, Travers Crump-ton, Ft. Stockton, Connell Ashley, Odessa, for appellee.
   CLAYTON, Justice.

This is a suit for damages arising out of the death of Kenneth Ray Blakney, who was killed as a result of a collision between the automobile in which he was a passenger, being driven by Larry Edward Smith, and a flatcar on the appellee’s train which partially blocked a crossing in Fort Stockton, Texas. The incident occurred just past midnight on the morning of October 30, 1959, at the intersection of the railroad crossing and U. S. Highway 290. The driver of the automobile also was killed. Suit was on behalf of the widow and minor son of Blakney. On a judgment for appel-lee based upon jury findings, appellants perfected this appeal.

The jury found that the crossing in question at the time of the collision was not an extra-hazardous crossing; that appellee had an employee stationed at the crossing in such manner as he could have been seen and observed by those in the automobile, and was not negligent in failing to place flares at the point where the flatcar partially obstructed the crossing; that the employee had not flashed a signal to appellee’s engineer to stop the flatcar when there was no necessity of stopping the same upon a public crossing; that appellee was not negligent in failing to maintain an automatic signal device with red flashing signal lights and a bell at the crossing at the time of the collision. The jury further found that the deceased Blakney was in a position of peril immediately prior to the collision and this fact was discovered by appellee’s employee, who realized that the deceased could not, or might not, extricate himself from such position of peril and that such discovery was made by the employee in time to avoid the collision by the exercise of ordinary care in the use of means at his command by properly using his lantern at the center of the intersection, but not by the use of fusees, and that such employee did not fail to use such means at his command nor did the appellee company fail to give such warning to the two deceased as would have been given by a person of ordinary care and prudence upon the occasion in question. It was the further finding of the jury that appellee’s employee was acting in an emergency which arose after the employee had left appellee’s flatcar upon the track over the crossing, but that the employee had acted prudently under the circumstances. On the other hand, the jury found that the deceased Blakney was riding in an automobile which was being driven at an unreasonable rate of speed, but was not negligent in so riding under the circumstances; that he did fail to keep a proper lookout under all the circumstances then existing and that this was a proximate cause of his death. Also, that the driver of the automobile disregarded the warnings of the crossing and the railroad car upon it until it was too late to avoid the collision; that the driver failed to keep a proper lookout, that he approached the crossing at an unreasonable rate of speed and failed to have the automobile under proper control, but that none of these facts in itself was the sole proximate cause of the accident. Thus, it may be seen that the jury found the issues of primary negligence in favor of the appellee, as well as finding the deceased and the driver guilty of certain acts of contributory negligence. That the accident was found to be not unavoidable.

Appellants urge thirteen points of error. Points of Error Nos. 1, 2, 3 and 5 relate to the admission of defendant’s, (appellee’s) exhibit No. 1. This was a police officer’s report of the incident entitled “Texas Police Officers’ Confidential Accident Report” prepared by, or from information furnished by, one Stanley Harrison, Assistant Chief of Police of Fort Stockton, who investigated the collision and who signed the report. This report was offered in evidence by defendant after plaintiffs had introduced in evidence their exhibit No. 30, which was a copy of a sketch of the scene prepared by the same officer, which showed the location of a brakeman with light, and various objects on the ground, and the approximate speed and approximate length of skidmarks of the approaching automobile before it struck the railroad car. At the same time that defendant offered in evidence its exhibit No. 1, it offered in evidence its exhibit No. 2 (which was the original of plaintiffs’ exhibit No. 30), and its exhibit No. 3, which was a “24 Hour Incident Report” of the accident prepared on information also furnished by Assistant Chief Harrison; the three exhibits constituting the complete file of regular business records of the Police Department in connection with this particular accident. Before being actually admitted in evidence, the three proffered exhibits were proved up in strict accordance with the provisions of Article 3737e, Vernon’s Ann.Texas Rev.Civ.St., “Memorandum or record of act, event or condition * * Appellants were given ample opportunity to object to the admission of these exhibits, which they did both in the absence of the jury and in their presence, but out of their hearing, in whispered conversations at the bench. The trial judge passed on these objections as they arose, striking out a portion of the proffered reports, and no error appears in the admission of the balance of the exhibits. As to the admissibility of such exhibits and records generally, see Travis Life Insurance Company v. Rodriguez, 326 S.W.2d 256 (Tex.Civ.App., 1959; ref., N.R.E., 160 Tex. 182, 328 S.W.2d 434, per curiam); Western Fire & Indemnity Company v. Bradshaw, 356 S.W.2d 832 (Tex.Civ.App., 1962; ref., N.R.E.). Other than the objection which had been raised to the portion of the proffered reports which was excluded by the trial judge and a general statement that the reports were inadmissible as involving hearsay, the burden of appellants’ complaints contained in their Points 1, 2, 3 and 5 are directed at the claimed lack of qualification of the Assistant Chief of Police to estimate the speed of the automobile prior to the collision, as reflected by the exhibits, and the allegation that appellants were required by the trial court to make their objections to exhibit No. 1 in the presence of the jury.' The Assistant Chief’s estimated speed of the automobile was first introduced to the jury by the appellants, as it was contained in their exhibit No. 30, which exhibit shows on its face the estimated speed and the length of visible skidmarks; and the allegation as to the action of the trial court in compelling appellants to state their objections in the presence of the jury is not supported in the record. These four points are accordingly overruled.

Points 4 and 6 relate to the testimony at the trial of the appellants’ witness Harrison and an appellee’s witness Claude Hill as to the speed of the automobile immediately prior to the collision. As the testimony of Harrison relative to speed was substantially the same as that reflected by the diagram in exhibit No. 30 introduced by appellants, the latter cannot now be heard to complain of this testimony, and Point No. 4 is overruled. Point No. 6 is not argued by appellants, but since the testimony of the witness Claude Hill, who was in a truck approaching the scene at the time of the occurrence, and who testified to the estimated speed of the automobile, was substantially the same as, and cumulative of, the testimony of Harrison, such testimony could not have caused the rendition of an improper judgment in the case. (See McLellan Stores Company v. Layfield, 305 S.W.2d 830, Tex.Civ.App., 1957, n. w. h.; Rule 434, Texas Rules of Civil Procedure). Point No. 6 is overruled.

Points 7 and 8 are directed to the trial court’s submission of Special Issue No. 30 relative to the failure of the deceased to keep a proper lookout and the court’s failure to give a requested instruction on said issue. Appellee cites several authorities to controvert these points and calls to our attention that the jury found the issues relating to primary negligence on the part of the appellee in its favor. Appellee quotes the following from the opinion on motion for rehearing in Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339 (1944; adopted opinion):

“ * * * We do not find it necessary to consider the merits of the assignments raising these questions, for the reason that all the issues relating to the primary negligence of the defendants were answered in their favor and, therefore, any error in the manner of submitting issues as to the contributory negligence of the deceased are immaterial. No other judgment than the one in favor of the petitioners could have been rendered by the trial court on the verdict and the errors complained of, if any, are therefore harmless.” (Citing numerous authorities).

This case, in addition to being decisive of Points 7 and 8, also sets out rules governing general objections to the introduction of evidence as a whole which could be equally well applied to the record in the instant case.

Appellants’ Points 7 and 8 are overruled.

Appellants’ Points 9 through 13 assert that the answers of the jury to certain special issues were so against the overwhelming weight and preponderance of the evidence, or the undisputed evidence, as to be manifestly unfair. Appellants’ “Argument and Authorities” under these points is as follows:

“In order to adequately point out to this Court the multitude of evidence tending to show that reasonable minds could not conclude that the railroad was not negligent upon the occasion in question would require more time and space than is available. The Record as a whole is available to this Court and upon a reading of the Statement of Facts it is apparent beyond doubt that such issues could only be against the great weight and preponderance of the evidence.”

As appellee points out, the Supreme Court, in Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, has this to say concerning a similar situation:

* * * It was not the duty of the Court of Civil Appeals to make an independent search of the statement of facts, which in this instance consisted of 510 pages and many exhibits, including account books and other records. Since the petitioner failed to point out to the Court of Civil Appeals any evidence to support his contention that the trial court’s judgment should be set aside because it was not supported by the conclusive evidence, he failed to discharge his burden.”

The court calls attention to Rule 418, T.R. C.P. As stated, the case before us presents a similar situation to that before the Supreme Court in the quoted case, and we believe we are justified in overruling appellants’ Points 9 through 13 without further comment. However, we did review the statement of facts in the instant case, and it does not, in our opinion, support the contention of appellants as embodied, in these points. Appellants’ Points 9 through 13 are accordingly overruled.

Since all of appellants’ points have been treated and overruled, the judgment in this case is affirmed.

PRESLAR, J., not participating.


author: PRESLAR, Justice.

text:
    D. ORTEGA AND SONS, a partnership, Appellants, v. EL PASO ELECTRIC COMPANY, a corporation, Appellee.
    No. 5636.
    Court of Civil Appeals of Texas. El Paso.
    July 1, 1964.
    Rehearing Denied July 22, 1964.
    Morgan & Boling, Guinn & Guinn, El Paso, for appellant.
    Kemp, Smith, Brown, Goggin & White, William Duncan, El Paso, for appellee.
   PRESLAR, Justice.

Appellants were plaintiffs in a suit against appellee for the loss of a stack of baled hay destroyed by fire. The jury found that the fire was caused by appellee’s electric wires coming to rest on the hay when a defective anchor rod broke during a snow and ice storm. Appellee was found to be negligent in the use of the defective anchor rod and such negligence was found to be the cause of the fire. The jury found that appellants (plaintiffs) also were negligent in stacking the hay to the height to which it was stacked under appellee’s wires. Damages were found in the amount of $12,-342.96 as the value of the destroyed hay, but judgment was entered for defendant because of the plaintiffs’ contributory negligence.

The submission of the contributory negligence issues, their form, and the jury’s findings thereon are made the basis of plaintiffs’ appeal. Such issues and answers are:

“QUESTION NO. 17
“Do you find from a preponderance of the evidence that Plaintiffs were negligent in stacking the hay stack to the height under the electric lines as was done in this case. ANSWER: ‘Yes’ or ‘No’.
“We answer: Yes.
“QUESTION NO. 18
“Do you find that said negligence of Plaintiffs, if you have so found, was a proximate cause of the burning of the stacks? ANSWER: ‘Yes’ or ‘No’.
“We answer: Yes.”

Appellants contend there was no evidence to warrant the submission of Issue No. 17, and no evidence to support the jury’s answer thereto. We overrule these contentions, for viewed in its most favorable light, there is some evidence. Plaintiff Louis Ortega testified that he stacked much of the hay himself, with the help of others, and on cross-examination he said:

“Q And you also had several other men at the time working for you?
“A Yes, sir.
"Q And, of course, you would not want to stack it up as close as two or three feet to the line, would you ?
“A No, sir, because we couldn’t work that way. If we did that the wire would be in the way.
"Q All right. That would be dangerous to the men, wouldn’t it?
“A Yes, sir.
“Q And to yourself?
“A Yes, sir.
“Q All right. And it would be a hazard to have the hay stacked that close to the line, wouldn’t it?
“A Yes, sir.”

The answer to the last-quoted question could be construed as testimony to the effect that it was a hazard to the hay to so stack it. There also was evidence that the National Electrical Safety Code established eight-foot clearance for lines going over objects.

Appellants contend that the jury’s answers to Issues Nos. 17 and 18 are against the overwhelming weight and preponderance of the evidence. We sustain that contention. Even though the above evidence may be considered of probative force, we have concluded from a review and consideration of all of the evidence in the case that the jury’s finding on the above issues is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. The jury had before it a definition of negligence and proximate cause. Under those definitions the tests of plaintiffs’ negligence, vel non, is what plaintiffs should have reasonably anticipated would happen in the light of common knowledge, as á result of their stacking their hay to the height to which it was stacked. The evidence was that the electric wires were suspended over plaintiffs’ hay stack on poles some 450 feet apart, and the line terminated with the last span over the hay stack with the terminal pole braced or held in place by the anchor rod which broke. The hay stack was located some 90 feet from the terminal, pole. In considering whether plaintiffs should have anticipated that the hay and wires would probably get together, the distance between the hay and the wires, and the amount such wires would sag, becomes important. The jury had before it the testimony of the plaintiff Louis Ortega that he directed the stacking of the bales of hay in layers, and that he was on the top layer and could walk under the wires; that there was five or six feet clearance between the lower wire and the hay. Other witnesses placed this clearance at four feet, three to four feet, and still others at two to three feet. No witness placed such clearance at less than two feet between the hay and lower line, and it was undisputed that the upper line was two and one-half feet above the lower line. The upper line carried the current and is known as the “hot line”. It was established that no danger existed or injury could result from contact with the lower line, and the testimony was that the two lines coming together would produce a short-circuit or arcing. The jury found that the wires caused the fire. Louis Ortega testified that he knew one or both of the lines was charged with electricity.. Experts testified that the lines would contract and expand under varying weather conditions; that such was equal for both lines, so that the distance between them would remain constant; and when expansion occurred the lines would sag. This sag was placed at as much as four feet at a point midway between the poles on the 450-foot span, where it would be greatest. The evidence as to the amount of sag at the point where the hay was located, 90 feet from the terminal pole, was that it would be one foot or “not over one foot”. The jury, within their province, could disregard all evidence to the contrary and arrive at the least clearance — two feet for the lower line and four and one-half feet for the hot line —but with only one foot sag, this does not bring the two wires and the hay together. It does not substantiate their finding that the height to which the hay was stacked was a proximate cause of the fire, and that such was negligence. The other evidence which the jury had to consider in that regard was that hay had been stacked at this location for some fifteen years; that the plaintiffs themselves had stacked it here for the past eight or ten years, and that the stack which burned was a normal stack not unlike those of prior years; and that similar weather conditions had occurred in prior years. We are of the opinion that the evidence does not establish a reason for the plaintiffs to anticipate any injury -to their hay, and that the finding of the jury in this regard is clearly against the great weight and preponderance of the evi■dence. The often-followed and quoted case of Houston Lighting & Power Co. v. Brooks (1960) lays down the rules applicable here, 161 Tex. 32, 336 S.W.2d 603, at page 606:

“If the reason to anticipate injury is not established, then no duty arises to act to prevent such an unanticipated injury.
“ ‘Negligence rests primarily upon two elements: (1) reason to anticipate injury, and (2) failure to perform the • duty arising on account of that anticipation. The ability to have foreseen and prevented the harm is determinative of responsibility.’ 30-B Tex.Jur., p. 179, Sec. 8.”

And again at page 606:

“Also, it was said in the case of City of Dallas v. Maxwell, 248 S.W. 667, 670, 27 A.L.R. 927 (Tex.Com.App. opinion, approved by Supreme Court) :
‘In this state it is now a settled doctrine that anticipation of consequences is a necessary element in determining not only whether a particular act or omission is actionably negligent, but also whether the injury complained of is proximately caused by such act or omission. Seale v. [Gulf, C. & S. F.] Railway, 65 Tex. 274, 57 Am.Rep. 602; [Texas & P.] Railway [Co.] v. Bigham, 90 Tex. 223, 38 S.W. 162; [Gulf, C. & S. F.] Railway [Co.] v. Bennett, 110 Tex. [262] 270, 219 S.W. 197; [San Antonio & A. P.] Railway Co. v. Behne, Tex.Com.App., 231 S.W. 354. This doctrine is the result of an effort by the courts to avoid as far as possible the metaphysical and philosophical niceties in the age-old discussion of causation, and to lay down a rule of general application which will, as nearly as may be done by a general rule, apply a practical test, the test of common experience, to human conduct when determining legal rights and legal liability. Actual anticipation is of course not in any sense the test; but what one should under the circumstances reasonably anticipate as consequences of his conduct.’ ”

We have carefully gone over the entire statement of facts and, as indicated, we are of the opinion that the jury was not justified in finding that plaintiffs should have reasonably foreseen or anticipated that stacking the hay to the height to which it was stacked would probably result in injury to it. Therefore, the manner in which appellants stacked the hay could not, under the circumstances here present as revealed by the record, constitute a negligent act proximately causing the fire. Having concluded that the verdict on the issue of contributory negligence is so against the great weight and preponderance of the evidence as to be manifestly unjust, it becomes our duty to remand this case for a new trial. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, at p. 661 (1951).

The judgment of the trial court is reversed and the cause remanded.


author: MOORE, Justice.

text:
    KRUEGER ENGINEERING & MANUFACTURING COMPANY, Inc., Appellant, v. OIL & GAS BUILDING OF HOUSTON, INC., Appellee.
    No. 62.
    Court of Civil Appeals of Texas. Tyler.
    July 16, 1964.
    Dempsey J. Prappas, Houston, for appellant.
    George D. Neal, Houston, for appellee.
   MOORE, Justice.

This is a suit on sworn account filed by the Appellant, Krueger Engineering & Manufacturing Company, Inc., against the Appellee, Oil & Gas Building of Houston, Inc., wherein Appellant sues for labor and material alleged to have been supplied Ap-pellee in the repair of a condenser on an air conditioning unit amounting to the sum of $1,783.39, and alternatively for a recovery in quantum meruit for the services, labor and material furnished in repairing the condenser, together with a reasonable attorney’s fee. Appellee denied that the prices charged were reasonable and further plead that the condenser was not repaired; that after the attempted repairs were made, the unit would not function, was unfit for use and was rendered totally useless and worthless.

The trial was before the court without a jury. At the close of the testimony, the court rendered judgment in favor of Ap-pellee, Oil & Gas Building of Houston, Inc. In response to Appellant’s request, the court filed the following Findings of Fact and Conclusions of Laiti:

“FINDINGS OF FACT
“1. On February 23, 1959, the Defendant did execute and deliver to the Plaintiff purchase order No. 2063, for the doing of the following work:
“ ‘Repairing one (1) 50 ton Carrier Condenser at $7.50 per hour plus materials, preliminary estimate approximately $600.00 total. We, Building Corporation, to be refunded salvage on brass tubes removed from unit.
“ ‘/s/ F. P. Campbell, Mgr.’
“2. The Plaintiff did furnish to the Defendant goods, wares, merchandise, materials, service and labor of the reasonable value of $1,783.39 in an endeavor to repair the 50 ton Carrier Condenser.
“3. The materials furnished by the Defendant in attempting to repair the condenser were installed in a defective condition.
“4. The labor and services rendered by the Plaintiff in repairing said condenser was done in an unskillful, unworkmanlike and improper manner.
“5. After the attempted repairs and furnishing of said material, services and labor, the condenser would not properly perform its functions as a part of Defendant’s air conditioning system
“6. The Defendant did not derive any benefits from the repairs made by Plaintiff on said condenser and said condenser had to be replaced with a new condenser.
“7. The Defendant has received no benefits from the goods, wares, merchandise, materials, services and labor performed by the Plaintiff in the attempted repair of said condenser and said condenser after such goods, wares, merchandise, materials, services and labor were furnished to and for the Defendant in the repairs of said condenser, was worthless and unfit as a condenser for use in service as part of the air conditioning system of the Defendant.
“8. The attorney for the Plaintiff, Dempsey J. Prappas, Esq., would be entitled to an attorney’s fee in the reasonable sum of $450.00, if the Plaintiff had been entitled to a recovery.
“CONCLUSIONS OF LAW
“1. The purchase order furnished and delivered by Defendant to Plaintiff for the repair of the condenser did not form a contract limiting the cost of the repairs to approximately $600.00, but the Defendant, if entitled to recover at all, would be limited to a recover on quantum meruit.
“2. The consideration for the goods, wares, merchandise, materials, services and labor furnished by the Plaintiff to the Defendant in the repair of the condenser failed, as such materials were installed in an improper and defective manner and condition and the work of installing same was done in an unskillful, improper and unwork-manlike manner.
“3. The Plaintiff cannot recover, for it has rendered no services to the Defendant which were useful to the Defendant nor'were any of the materials furnished by Plaintiff of any value to the Defendant as the condenser, after the repairs and installation of the máteriál, was worthless except for scrap iron value, and were worthless for the purpose as a part of the Defendant’s air conditioning system.”

By numerous points of error, Appellant seeks a reversal of the judgment, contending that the trial court err.ed (1) in allowing Appellee’s witness Schultz, over his objection, to give opinion testimony, (2) in allowing the witness Schultz, over his objection, to give hearsay testimony, and finally (3) that the findings made by the trial court was not supported by the evidence.

The record reflects that the witness Schultz was the building engineer for the Appellee. He had been employed in this capacity for approximately twenty-five years and had been familiar with the air conditioning unit in question since the time it was installed in the Oil & Gas Building in 1939. Over Appellant’s objection the witness Schultz was permitted to testify that when he came to work one morning, he found that the Appellant’s -employee, Gordy, who was employed to repair the unit, had placed the tubes in an upside down position in the condenser. This was objected to as being a conclusion. He was also permitted to testify that after the repairs were made the unit was useless, to which counsel objected as being a conclusion. Neither of the objections to these questions is thought to be well taken. The former was obviously not a conclusion, but merely what he observed, while the latter was an expression of opinion as to the usefulness of the unit based upon his long experience as a building engineer and was clearly admissible.

Neither do we believe the other testimony given by this witness was subject to an objection on the ground of hearsay. In this connection, the record shows that while Appellant’s employee, Gordy, was in the process of repairing the unit, Schultz related to him what another engineer had told him as to where the level of the liquid should be in the bottom of the unit, which in our opinion cannot be construed to be hearsay.

Furthermore, there was an abundance of other evidence in the record upon which the learned trial court could have based its judgment. This cause having been submitted to the court without the intervention of a jury, it must be presumed upon this appeal that the trial judge disregarded all evidence which may have been improperly received and in no manner considered it in arriving at the judgment. Gordon v. Pledger (Tex.Civ.App.), 271 S.W.2d 344; 24 Tex.Jur.2d par. 553.

Appellant’s points asserting that there is no evidence to support the findings made by the trial court must be overruled. On examining the record in the light most favorable to support the findings, as we are required to do, we find that there is ample evidence to support each of the findings as well as the judgment based thereon. Campbell v. Swinney (Tex.Civ.App.), 328 S.W.2d 330; 4 Tex.Jur.2d par. 839.

The judgment is affirmed.


text:
    The CITY OF ODESSA, Appellant, v. Cora Alice LEA, Appellee.
    No. 5666.
    Court of Civil Appeals of Texas. El Paso.
    July 17, 1964.
    Robert E. Hoblit, Asst. City Atty., Odessa, for appellant,
    Mike R. Mason, Odessa, for appellee.
   CLAYTON, Justice.

This is a suit for delinquent real property taxes, penalty, interest and costs filed by the City of Odessa against Cora Alice Lea on January 4, 1963. At a trial before the court without a jury the following facts were stipulated:

“1. The tax statement which is marked ‘D-X 1’ on real estate property tax for the year 1958, addressed to Cora Alice Lea, 1203 North Golder, Odessa, Texas, is introduced into evidence.
“2. On or about December 15, 1958, Mrs. Cora Alice Lea mailed to the City of Odessa, Texas, check number 216A, which is marked Exhibit ‘D-X 2’, for a hundred and seven dollars and ninety cents to pay the taxes evidenced by the statement which is Exhibit No. 1. The amount of taxes in Exhibit No. 1 is not clear and Mrs. Lea interpreted the amount to be $107.90. This check, - $107.90, was received by the City of Odessa, Texas, in the month of January, 19.59. This check, which is Exhibit 2, was returned by the City of Odessa- to Mrs. Cora Alice Lea and was not accepted by it.
“3. At the time that Exhibit 2 was returned to Mrs. Lea, the City of Odessa, Texas, clarified the amount due as' being $167.90. Pursuant thereto, Mrs. Lea mailed to the City of Odessa, Texas; a check for $167.90, which is the amount of taxes claimed by the City of Odessa, Texas, on property involved in this suit.
“4. That the City Ordinances relating to taxing procedures were valid and in force for the years 1958 through 1963.
“5. That-'in- the month of- February, 1959; defendant mailed to the City of Odessa, Texas, plaintiff, and at that time plaintiff received, the sum of $167.90 for 1958 taxes, and this sum was refused by the plaintiff for the reason that plaintiff claimed such sum did not include interest and penalty for the month of February, 1959.
“6. The parties stipulate that the only dispute in this lawsuit is whether or not penalties and interest and costs are owed for the taxes.”

In its judgment signed and entered on June 24, 1963 the court found from the facts stipulated that the City was entitled to interest at the rate of 6% per annum on $60.00 for one month, or $0.30, and penalty of 1% on $60.00, or $.60, together with interest on such amounts of 6% per annum from March 1, 1959 until paid, and that all costs incurred in the cause be taxed against the City. From this judgment the City appeals.

Appellant (plaintiff below) presents six points of error directed to the judgment of the court. Points 5 and 6 complain that the judgment is not supported by the evidence, but is contrary to the undisputed evidence which shows that the taxes were delinquent and unpaid. The stipulation between the parties agrees that the only dispute between them is “whether or not penalties and interest and costs are owed for the taxes”. The court’s judgment recites that the only issue in the cause is “what amount of taxes, interest and penalty, if any, are due and payable to the Plaintiff herein”. No mention is made by the court at this point in its judgment as to costs, and this matter will be treated later in this opinion. The court, in arriving at its judgment that certain amounts of interest and of penalty were owing by ap-pellee, must have found that a certain amount of taxes were delinquent and unpaid for a certain period of time. The dispute here, then, between the appellant and the court (since appellee has not favored us with a brief) is what amount of taxes were delinquent for what period of time. We will overrule Points 5 and & and determine amounts and time later herein.

Appellant’s Points 1 and 2 complain of the amount of penalty and interest allowed by the court. From the stipulations of the-parties it seems clear that the taxes imposed on appellee for the year 1958 were in the amount of $167.90. The parties-also agree that the ordinances for the-City of Odessa relating to taxing procedures were valid and in force at all times pertinent to this cause. These ordinances adopt the provisions of Article-7336 of the Revised Civil Statutes of Texas. The statute provides:

“(a) * * * If any person fails to pay one-half (J4) of the taxes, imposed by law upon him or his property, on or before the thirtieth day of November of the year for which the assessment is made, then unless he pays all of the taxes (imposed by law on him or his property), on or before the thirty-first day of the succeeding January, the following penalty shall be payable thereon, to-wit: During the month of February, one (1%) per cent; during the month of March, two-(2%) per cent; during the month of April, three (3%) per cent; during the month of May, four (4%) per cent; during the month of June, five (5%) per cent; and on and after the first day of July, eight (8%) per cent.
“(b) All poll taxes and all ad valorem taxes, unless one-half (J4) thereof have been paid on or before November thirtieth as hereinabove provided, shall become delinquent if not paid prior to February first of the year next succeeding the year for which the return of the assessment rolls of the county are made to the Comptroller of Public Accounts. * *
“(d) All delinquent taxes shall bear interest at the rate of six (6%) per cent per annum from the date of their delinquency. * * *
“(e) * * * the Assessor and Collector of Taxes shall calculate and charge all such penalties, interest and costs on all delinquent tax statements or delinquent tax receipts issued by him.” (Emphasis supplied).

Section 17-31 of the Code of Ordinances of the City of Odessa adopts all laws of the State of Texas relating to the collection of delinquent taxes, interest, penalties and costs and provides a misdemeanor penalty for violation or failure to comply with the same.

The Charter of the City of Odessa provides, in Section 74, Article VI thereof:

“(c) The city council or any other officer of the city shall never extend the time for payment of taxes or remit, discount or compromise any tax legally due the city, or waive the penalty that may be due thereon to any person, * * * (Char. art. VI, Sec. 2.)”

We believe it to be inescapable that the full amount of taxes owing for the year 1958, or $167.90, became delinquent on February 1, 1959 and remained delinquent at the time of this suit. This is true even though there was a tender in good faith of a lesser amount in January, 1959 and a good faith tender of the exact amount of taxes, but without accrued penalty and interest, in February, 1959. “The tax collector was not required to accept a part of appellant’s taxes upon appellant’s claim that that was all that was due.” Lufkin Land & Lumber Co. v. Noble, 60 Tex.Civ.App. 30, 127 S.W. 1093 (1910; ref.). And as to penalty and interest, see Republic Ins. Co. v. Highland Park Independent School District, 123 S.W.2d 784 (Civ.App., 1938; dism. W. O. J.— Correct judgment, 133 Tex. 545, 125 S.W.2d 270):

“Appellant insists that penalties and interest should not apply, at least to the cash tender of $1220.64, paid into court on May 1, 1937. The three reserves being taxable, this deposit failed to the amount of taxes producible therefrom in being a full tender of the taxes legally due. In such a situation, much as we would he inclined to disallow these demands, this relief cannot be afforded, under State v. Fulmore, Tex.Civ.App., 71 S.W. 418, holding that ‘in order to escape liability for the interest and penalties allowed by the statute, he [the taxpayer] should have tendered the amount of taxes legally due’.” (Emphasis supplied). See also 54 Tex.Jur. 2d 329, § 135.

We are therefore constrained to approve appellant’s Points 1 and 2 herein, and to hold that taxes in the amount of $167.90 were due and owing by appellee to appellant at the time of this suit, and had been delinquent since February 1, 1959, and upon such amount of taxes a penalty of 8% was due, together with interest at 6% per an-num on the amount of taxes from February 1, 1959 and Collector’s costs of $5.50. We estimate, without vouching for their accuracy, but by way of illustration, these amounts to be the same as those set out in Exhibit “A” attached to appellant’s petition:

Amount of taxes $167.90

Amount of penalty (8%) 13.43

Amount of interest (6%) 40.30

Collector’s costs 5.50

Total at time of suit $227.13

Appellant’s Points 3 and 4 must also be sustained. These points complain of that part of the judgment herein which taxed all costs incurred in this cause against the appellant. In this, we feel that the trial court was in error. Article 7332, Vernon’s Ann.Civ.St., provides that the County or District Attorney shall represent the state and county in all suits against delinquent taxpayers, and further provides that the compensation of said attorney shall be such reasonable attorneys fees as may be incurred not exceeding ten per cent (10%) of the amount sued for. Article 7333, T.R.C.S., provides that such fees shall be taxed as costs and in -no case shall the State or county he liable therefor. See Whelan v. State, 254 S.W.2d 558 (Civ.App., 1953, n. w. h.). Article 7343 provides that all the laws of this State for the purpose of collecting delinquent State and county taxes are available for, and when invoked shall be applied to, the collection of delinquent taxes of incorporated cities and towns in so far as applicable. The Article also sets out that the city attorney or other attorney filing such tax suits shall be entitled to the same fees as allowed the county or district attorney, to be taxed as costs in the suit. Section 6 of Article 7345b, T.R.C.S., again provides that certain expenses and attorney’s fees in suits by taxing units (of which appellant here was one) shall be taxed as court costs. But under the authorities cited, it is here held that such costs are not chargeable to the appellant city. Furthermore, even under the limited judgment given the appellant in the trial court, the appellant was to that extent the successful party, and under the authority of Rule 131, Texas Rules Civil Procedure, all costs should not have been taxed against it. And under Rule 139, “If the judgment of the court above be in favor of the party appealing and for more than the original judgment, such party shall recover the costs of both courts ; * * *.” Parker v. Rolls, 338 S.W.2d 523 (Civ.App., 1960; n. w. h.). Hence, the judgment of the trial court must be reversed on Points 1 through 4, and all costs of court both here and below assessed against appellee.

Although it is found necessary that the judgment in this cause be reversed, the cause is remanded, however, for entry of judgment in the court below in accordance with the findings herein, including a determination of the proper amount of interest and penalty owing, and the amount of attorney s fees to he taxed as costs under prevailing statutes and authorities.

. Ruling in this matter has been expedited under the mandate contained in Article: 7345b, Sec. 11, T.R.C.S.