author: CLAUDE WILLIAMS, Justice.

text:
    A. V. STEELMAN et al., Appellants, v. Marshall ROSENFELD et al., Appellees.
    No. 16636.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 26, 1965.
    Rehearing Denied Dec. 24, 1965.

      Saner, Jack, Sallinger & Nichols, H. Louis Nichols, Dallas, for appellants.
    Strasburger, Price, Kelton, Miller & Martin, Robert H. Thomas, Dallas, for ap-pellees.
   CLAUDE WILLIAMS, Justice.

This action, in which a declaratory judgment was sought, was originally instituted by Marshall Rosenfeld and Julius Coleman against A. V. Steelman, Guy Vince, Harold Shank, City Secretary of the City of Dallas, Texas, and Tom E. Ellis, County Clerk of Dallas County, Texas. Plaintiffs sought a judicial determination whether or not a certain area located in the City of Dallas was within a “dry” territory where the sale of alcoholic beverages is prohibited by the laws of the State of Texas.

The defendants Steelman and Vince were lessees of a certain tract of land located in the City of Dallas which was either adjacent to or close to White Rock Creek. They desired to build a building on such property in which to operate a liquor store but prior to constructing such building lessees sought a determination from the City Secretary of the City of Dallas and the County Clerk of Dallas County to the effect that the area in question was a “wet” area where the sale of alcoholic beverages would be authorized under the laws of the State of Texas.

Plaintiffs Rosenfeld and Coleman operate a liquor store on Second Avenue in the City of Dallas, approximately three-quarters of a mile from the property under lease by Steelman and Vince. In an effort to protect their location as being the last location for a liquor store on Second Avenue going East, as well as the first liquor store going West on Second Avenue, Rosenfeld and Coleman made known to the City of Dallas and the County Clerk that if they certified the property in question as being a “wet” area where the sale of alcoholic beverages was authorized that such plaintiffs would then sue the City of Dallas and the County Clerk. Because of the opposition raised by Rosenfeld and Coleman the City Secretary of the City of Dallas and the County Clerk declined to certify the area in question as being either a wet area or a dry area, but took the position that they would only act on the application after the question had been adjudicated in a court of proper jurisdiction. After Rosenfeld and Coleman had brought this action seeking a declaratory judgment the district judge raised the question as to whether or not there was a justi-ciable controversy between Rosenfeld and Coleman and the other parties involved. Thereupon counsel for Steelman and Vince advised the court that he would amend his pleadings and create a justiciable controversy between his clients and the City of Dallas and County of Dallas. Thereupon Steelman and Vince filed a trial amendment alleging their leasehold interest in the real estate in question, and that a bona fide controversy existed between them and the City Secretary and County Clerk of Dallas County in that said officials had declined to certify the area in question as being an area where the sale of alcoholic beverages was authorized and that Steelman and Vince were entitled to a determination of such rights. They sought an order directing the City Secretary and County Clerk to certify the area in question as being wet territory.

The case proceeded to trial before the court without a jury and at the conclusion of the testimony an order was entered finding and declaring that the sale of alcoholic beverages is not lawful and is not legally permissible on the property in question and denied Steelman and Vince any relief.

Appellants Steelman and Vince through the medium of five points of error urge us to reverse the order of the district judge. We find it unnecessary to pass upon or consider these points for the reason that there is apparent in this record the absence of a necessary party thereby presenting a jurisdictional defect requiring reversal of the judgment.

In a brief filed by John Harrison, attorney at law, as amicus curiae, our attention is directed to the fact that J. B. Lesley is the owner in fee simple of the land in question in this declaratory judgment action; that appellants Steelman and Vince are lessees and J. B. Lesley is lessor of the property in controversy, and that the lease between the parties appears in this record as Defendants’ Exhibit No. 16. Amicus curiae directs our attention to the fact that Mr. Lesley was not a party to this action; that he took no part in the trial of the case, and that as such owner and lessor of the land in question he has an interest in the declaratory proceedings to such an extent that he is a necessary and indispensable party to the action.

The Texas Uniform Declaratory Judgments Act, Art. 2524-1, Sec. 11, Vernon’s Annotated Civil Statutes, provides:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.”

The courts generally recognize that this provision is mandatory and that a court should decline to consider a case on the merits until all the interested persons have been made parties. 22 Am.Jur.2d, § 80, p. 943; 71 A.L.R.2d, § 4, p. 730, et seq. The rules applicable to other civil actions in determining whether a person is interested and therefore essential to the action are applicable in suits for declaratory judgment. Texas Agricultural Workers’ Union v. Isbell, Tcx.Civ.App., 195 S.W.2d 206.

This court, speaking through Chief Justice Dixon, in the recent case of Dorn v. Cartwright, Civ.App., 392 S.W.2d 181, had occasion to discuss the question of necessary parties in a declaratory judgment suit. After considering the applicable authorities on the question we there held that one who had a direct interest in the property and in the outcome of the case was a necessary and indispensable party without whose presence a valid judgment could not be rendered.

In Petroleum Anchor Equipment, Inc. v. Tyra, Civ.App., 392 S.W.2d 873, we had occasion to again discuss and pass upon the question of necessary and indispensable parties. After a comprehensive review of all of the authorities, we discussed the decision of our Supreme Court in Royal Petroleum Corp. v. Dennis, 160 Tex. 392, 332 S.W.2d 313, in which it was said:

“The term ‘necessary parties’ has also been defined as ‘persons who have such an interest in the controversy that a final judgment or decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final adjudication may be wholly inconsistent with equity and good conscience.’ ” (Citing authorities.)

There are numerous Texas decisions dealing with the question of necessary parties, each turning upon the factual situation therein presented. The key to the issue is the interest of the absent party.

Thus in Nixon v. Cowan, 134 Tex. 262, 135 S.W.2d 96, opinion adopted by the Supreme Court, it was held that where conflicting interests of plaintiff and defendants under their respective mineral leases were both deraigned from a corporation as common lessor, the corporation was an indispensable party to the litigation, especially when the lease discloses a contention of interest by lessor.

Again, in Suburban Club, Inc. v. State, (Tex.Civ.App.) 222 S.W.2d 321, Justice Cramer, speaking for this court, said that while the owner of leased premises would not be a necessary party in a temporary injunction against lessees who operated a club such owner was a necessary party in a final hearing to determine whether the club should be padlocked.

In the light of these authorities the question directly before us is whether Lesley is one who has or claims an interest in the subject matter of this litigation which would be affected by the declaration of the court. We think that the question must be answered in the affirmative for several reasons.

Since the interest and rights of Lesley in and to the premises in question are governed by the terms and conditions of the lease agreement between Lesley and Steelman and Vince, we look to the lease provisions.

Paragraph II of the lease agreement provides that lessees will pay to lessor, as rent, the sum of $1,800 per year, or the sum of $150 per month, in advance, for a full lease term of twenty years, aggregating a total rental of $36,000.

Paragraph VII provides that in default of payment of the rent, or in the keeping of any other covenant or condition of the lease agreement, lessor is given the right to reenter the premises and remove all persons in possession and either re-let the premises for the best price obtainable for the remainder of the lease term or cancel the lease agreement.

Paragraph III of the lease agreement recites that the lessees are in the process of seeking a rezoning of the property to allow them to carry on a “food, drink and drive-in restaurant business” and that the beginning date of the lease and the first rent payment thereunder should he due ninety days following the date of said rezoning, or whenever improvements to be made on subject property have been completed by the lessees, but in no event shall the effective date be deferred for more than six months following date of lease.

Paragraph XIV of the lease provides that all improvements placed upon the demised premises by lessees shall become annexed to the reahy and belong to lessor either at termination or cancellation of lease.

Paragraph XXI obligates the lessor to level off the surface area of the premises by the filling in with dirt so as to make it “usable by the Lessees and * * * patrons of the Lessees * * * for uses and purposes to which the Lessees expect to put the same.”

Paragraph IX of the lease agreement provides:

“It is an express and understood agreement of this lease agreement, that the Lessor reserves unto himself, his heirs and assigns, the right to place any sign or signs on the leased premises that do not obstruct the normal view of the Lessees’ business, and further, the Lessor shall be entitled to receive and retain any and all rentals that may be received from said signs.”

Paragraph X of the lease agreement obligates lessees to defend lessor on any claims for damages to property or persons growing out of or incidental “to the manner in which the Lessees operate said business” and upon failure of lessees to so defend lessor is authorized to obtain defense counsel for such suit or suits.

In Paragraph XIX it is recited that the application of lessees for rezoning the subject property also includes additional contiguous property owned by lessor; that lessees are granted an option to lease such additional areas in the event of favorable action on the application for change of status.

It is thus to be observed that the lease agreement between the parties is not in the usual or standard form but contains express provisions which delineate the rights and interest of the landowner in the premises covered by the agreement. The leasehold estate is subject to reverter on non-payment of any monthly installment or rent. Accordingly, the event of reverter may occur at the end of any calendar month. The beginning date of the lease agreement itself is made contingent upon the rezoning by the City and thus the landowner has a direct interest in seeing that such contingency occurs as early as possible.

Paragraph IX of the lease agreement, copied above, expressly reserves unto the landowner a stated interest in the property, namely, to place signs thereon and to collect rents therefor. It is not unreasonable to assume that the owner’s reserved right for advertising purposes might conceivably be inimical to the use of the property contemplated by lessees should the area be declared “wet”. This express reservation of interest in the leasehold is, within itself, sufficient to demonstrate such an interest in the property as would require the presence of the owner at any litigation of the character now before us.

An analysis and study of this record clearly reveals an overall picture to the effect that the leasehold estate was created, in large measure, conditioned upon change of legal status of the property so that same could be utilized for the sale of liquor. This is emphasized by the fact that no improvements have been constructed upon the demised premises pending determination of the legal question presented by the suit for declaratory judgment. Thus the fee owner Lesley becomes vitally interested in the outcome of this litigation and to comply with the express terms of the Uniform Declaratory Judgments Act he should be made a party.

Appellees seek to avoid the rule requiring joinder of the fee owner in this case by alleging that Lesley was personally acquainted with the pendency of the lawsuit and should have voluntarily made himself a party. We cannot agree with this contention. In McDonald v. Miller, 90 Tex. 309, 39 S.W. 89, 95, we find this statement of the rule that is applicable here:

“To make one having an interest in an action a party, the petition must make him a party; and, if he does not voluntarily appear, he must be cited. That he knows of the existence of the suit, and could have intervened, makes no difference. The right of intervention, which is allowed by our laws, is a privilege, and not a duty.”

See also Shaffer v. Schaleben, Tex.Civ.App., 236 S.W.2d 234, and Merritt, et al. v. Ryno, Tex.Civ.App., 268 S.W.2d 546.

It is our opinion, and we so hold, that the record in this case demonstrates that a final judgment or decree in this case cannot be made without either affecting the interest of Lesley or leaving the controversy in such a condition that its final adjudication would be wholly inconsistent with equity and good conscience. Royal Petroleum Corp. v. Dennis, 160 Tex. 392, 332 S.W.2d 313.

For these reasons the judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings. All costs herein are assessed against the appellees Rosenfeld and Coleman.

Reversed and remanded.

      . Lesley is also lessor of premises occupied by Rosenfeld and Coleman.

      . It has been held that the latter portion of the statute should not ordinarily he relied upon by the courts as authority to proceed to judgment without the presence of all necessary parties. Town of Morganton v. Hutton & Bourbonnais Co., 247 N.C. 606, 101 S.E.2d 679; St. John’s Baptist Society, etc. v. Ukranian Nat. Ass’n, 105 N.J.Eq. 69, 146 A. 886.

      . In addition to the authorities cited see Annotation in 71 A.L.B. 723, et seq., enumerating cases construing Section 11 of the Uniform Declaratory Judgments Act.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Jack R. FLETCHER, Appellant, v. Virginia FLETCHER, Appellee.
    No. 14428.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 8, 1965.
    Rehearing Denied Jan. 5, 1966.

      Vale, Torres & Alaniz, San Antonio, for appellant.
    Harry A. Nass, Jr., San Antonio, for ap-pellee.
   MURRAY, Chief Justice.

This divorce proceeding was instituted by Virginia Fletcher against her husband, Jack Fletcher. From a judgment granting his wife a divorce, custody of their three children, together with provisions for child support, and disposing of the community property, Jack R. Fletcher has prosecuted this appeal.

Appellant’s point of error is as follows i

“The Court erred in granting the divorce to the Appellee in that there was not sufficient evidence to show that the Appellant was guilty of such excesses, outrages, and cruel treatment toward Appellee so as to render their further living together insupportable.”

Only appellant and appellee appeared as witnesses. Virginia Fletcher testified that she could no longer live with her husband, Jack Fletcher as his wife, that their further living together as man and wife was insupportable, and when asked why she said, “Well, it’s just impossible to be married to someone that really doesn’t want to be married, and he wants to lead his own life, and we had * * She further testified that “three years ago he hit me in front of the children and knocked me out of the chair on to the floor,” but since then she stayed with him so she could try to keep their home together, but she failed to do so. Since appellant left home in March, 1964, he has not returned; he has never come back to see the children. She has had the children with her since he left. While they were living together appellant spent a good deal of time at his art studio in Brackenridge Park. She further testified they had tried counseling, but that it was to no avail. Her insistence that her husband see a marriage counselor was what precipitated the last break up. She testified that Dr. Lewis told her that “Jack shouldn’t never have been married in the first place. He just doesn’t want to have a married life. He wants to be, what I call a 'married bachelor’. He wants a home to come to, but other than that he wants to completely lead his own life. We had no personal life. We had no family life; no religious life, and that’s just in my * * * not a marriage.” There were three children born to this marriage, the last on December 5, 1964, after appellant had left home in March, 1964. Appellant did not visit his wife while she was in the hospital and never came to see the child. He explained this by saying, “You don’t go around where people hate you.”

Appellant was called to the witness stand and testified rather fully. There was very little conflict in the evidence. He testified that he did not think he and appellee could live together amicably as man and wife. He testified that he loved his wife and children, and the reason he left was “she kept badgering me and trying to get on to me about going to marriage counselors, and she says I was gone all the time, which is not true. I was there every night except on weekends when T went to my studio to work.” He further testified that he did not want the divorce and left home because “she was driving me nuts,” and he would go back home if she would take him.

The divorce here is sought on the grounds of cruel treatment, as is provided by Art. 4629(1), Vernon’s Ann.Civ.Stats. The record does not show by full and satisfactory evidence that the acts complained of by appellee were a series of studied and deliberate insults and provocations as would render appellee’s living with appellant unendurable or intolerable, which is required where no physical violence is shown. The only physical violence shown was condoned by appellee. Gentry v. Gentry, Tex.Civ.App., 394 S.W.2d 544; Bell v. Bell, Tex.Civ.App., 389 S.W.2d 126; Hausladen v. Hausladen, Tex.Civ.App., 388 S.W.2d 952; Stevenson v. Stevenson, Tex.Civ.App., 383 S.W.2d 92.

The rule that where there is some evidence to sustain a finding of the trial court such finding is binding on the appellate court, is not applicable in divorce cases. Art. 4632, Vernon’s Ann.Civ.Stats., provides, among other things, that a divorce decree “shall be rendered upon full and satisfactory evidence,” and this rule applies as much to the appellate courts as it does to the trial courts. Gentry v. Gentry, supra; Bell v. Bell, supra.

A husband and wife cannot be divorced in this State merely because they live unhappily together, or on account of marital wranglings, incompatibility, or for a trivial cause. McNabb v. McNabb, Tex.Civ.App., 207 S.W. 129.

During the trial appellant’s then counsel announced in open court that he was not contesting the divorce, but a marital contract cannot be dissolved by the mutual agreement of the parties as can other civil contracts. In Sheffield v. Sheffield, 3 Tex. 79, Judge Hemphill, speaking for the Supreme Court of Texas, had this to say:

“The nature, object and important purposes of the contract should have their just influence upon the mind. The parties have pledged themselves, not only for their own happiness, but for purposes important to society, to live together during the term of their natural lives. The engagement is the most solemn and important of human transactions. It is regarded by all Christian nations as the basis of civilized society, of sound morals, and of the domestic affections; and the relations, duties, obligations and consequences flowing from the contract are so important to the peace and welfare of society, as to have placed it under the control of special municipal regulations, independent of the will of the parties. The mutual comfort and happiness of the parties are the principal, but not the only, objects of the engagement. It is intended also for the benefit of their common offspring, and is an important element in the moral order, security and tranquility of civilized society. The parties cannot dissolve the contract, as they can others, by mutual consent, and no light or trivial causes should be suffered to effect its recission. While full effect is to be given to the statute it should be remembered that, according to the experience of the most enlightened nations, the happiness of married life greatly depends on its indissolubility, and that the prospect of easy separation foments the most frivolous quarrels and disgusts into deadly animosities. Parties may not be able to live together very harmoniously, but they cannot be separated except for reasons approved of by the law. And when they know they must live together, except for causes prescribed by the law, they learn, in the language of Lord Stowell, ‘to soften, by mutual accommodation, the yoke which they know they cannot shake off; they become good husbands and wives from the necessity of remaining good husbands and wives; for necessity is a powerful master in teaching the duties it imposes.’ Such construction ought to be given the statute, and such weight allowed the acts of the parties, as would effect the legislative intention; but there should not be such looseness of exposition as would defeat the beneficial objects of the marriage institution, and sunder its bonds with almost as much facility as if it were a state of concubinage, dependent alone on the will of the parties.”

The judgment is reversed and the divorce denied.


author: MASSEY, Chief Justice.

text:
    RYDER TANK LINES, INC., Appellant, v. Harvey BENTLEY, Appellee.
    No. 16688.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 17, 1965.
    Rehearing Denied Jan. 14, 1966.
    Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, for appellant.
    Brown, Day & Crowley and M. Hendricks Brown, Fort Worth, and Jones, Fillmore, Robinson & Lambert and Ray Fara-bee, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

A question on appeal is whether or not the trial court erred in refusing to admit portions of a letter which was sent to the defendant wherein the plaintiff represented that the “damages” he had sustained by reason of a vehicle collision involving his truck-tractor, low-boy trailer, and D-6 caterpillar tractor were “approximately $1500.00”. The amount of damages awarded plaintiff because of injury to his equipment was $6,169.00, predicated upon the jury’s answers to special issues posing inquiry as to values of his property immediately prior to and immediately subsequent to the collision. The excluded evidence was offered by the defendant, Ryder Tank Lines, Inc., during the course of its interrogation of the plaintiff, “ * * * for the limited purpose, and for the only purpose of showing an admission against interest as to Mr. Bentley’s admitted amount of damages.”

Undoubtedly the theory under which the tendered evidence was excluded was that the letter, considered as an entirety, constituted an offer in compromise. Our holding is that it did not qualify as such. Under general rules applicable in Texas as in the majority of the states the tendered portions of the letter should have been received as admissions against interest, even though a mixed question of law and fact was involved and despite the fact that the. plaintiff would not have been qualified to testify as to his conclusions of any monetary amount as “damages” flowing from the collision. See 118 A.L.R. 1230, Annotation: “Admissibility as against interest of statement or report made out of court regarding accident as affected by the fact that it relates to or includes matters of opinion or conclusion”, and in particular the Texas cases therein annotated (and those subsequently cited in A.L.R. Blue-book of Supplemental Decisions). See also 86 A.L.R. 1449, Annotation: “Opinion evidence directly as to the ultimate question of the amount of damage to property”.

However, though we are convinced that the tendered evidence was erroneously excluded, it does not follow that such amounted to reversible error. A test of reversibility in such a situation falls within the provisions of Texas Rules of Civil Procedure 434. To be reversible error it must appear that the erroneous exclusion of evidence was reasonably calculated to cause and probably did cause the return of an improper verdict and the rendition of an improper judgment in the case. On this question the writer, speaking for a majority of the court, wrote at length in the case of Maddox v. Gulf, Colorado & Santa Fe Railway Co., 293 S.W.2d 499, 503 (Fort Worth Civ.App., 1956, writ ref., n. r. e.). At page 508 of the opinion Justice Boyd wrote a vigorous dissent pointing up the question here involved. It is one with which appellate courts have long struggled, particularly as applied to situations in which erroneous exclusion of testimony may operate to defeat a purpose of cross-examination.

In our test of reversibility under T.R.C.P. 434, we are not convinced that in all reasonable probability the jury returned a verdict other than that which it would have returned had it received the benefit of the evidence which was excluded.

Judgment is affirmed.


text:
    J. W. MARSHALL, d/b/a Marshall Pipe & Supply Company, Appellant, v. M. O. RIFE, Jr., Appellee.
    No. 16686.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 10, 1965.
    Rehearing Denied Jan. 14, 1966.

      Prothro & Sellers and Lee Sellers, Wichita Falls, for appellant.
    Vincent Stine, Henrietta, for appellee.
   MASSEY, Chief Justice.

M. O. Rife, Jr. purchased from J. W. Marshall, d/b/a Marshall Pipe & Supply Company, a “string” of used oilfield pipe to use to drill into an old “hole” and set and cement in place for use in attempting to rejuvenate an oil well. In order to produce oil from the pipe after it was set and cemented and ready for use it was necessary that a pumping tool be operable within the pipe in an up-and-down motion so that, the oil would be brought upward to the surface where it would be trapped and drawn off. In oil field parlance such a tool is called a “swab”, and the actual operation of the tool in the accomplishment of the pumping operation is called “swabbing”.

In the state of the record it is to be considered factually established that Marshall was fully acquainted with the purpose to be accomplished by Rife by use of the pipe, and also with the manner of accomplishment. At and prior to the consummation of the transaction of sale and purchase Marshall knew that a “swabbing” operation would be performed. For such to be performed Marshall knew that the “swab” would necessarily have to be lowered down the pipe to the lower portion thereof where the “swabbing” could take place; being furthermore aware that a uniformity of interior dimensions of the many sections of pipe in the “string” would be essential to the running of the “swab” down the pipe. In the “piston-like” operation of the “swab” it is fatal to successful “swabbing” if the oil being pumped slips by its sides and back to the reservoir from which it is attempted to be pumped.

Pipe which stands up under tests of “drifting” and “testing” will “swab”. We may disregard the matter of whether the pipe in question had been “tested” for there is no contention that it had materiality in the litigation. The matter of “drifting” is of consequence and importance. A section of pipe which has been “drifted” will “swab”, for its interior dimensions are formed or milled so that the “swab” will move up and down in a semi-snug fit against the interior walls of the pipe, thus enabling the pumping operation to lift the oil from the reservoir.

In addition to Marshall’s knowledge of the purpose for which Rife purchased (with honest opinion and belief on the part of Marshall that the pipe was fit and suitable therefor), Marshall affirmatively represented that all the pipe sections had been “drifted”. A “drifting” operation is the running through of a tool having close tolerance to the interior dimensions of a pipe section to make sure that there is no obstruction.

Rife knew that Marshall had obtained the pipe by a transaction with a third party. He also knew that the pipe was transported directly to the site — where Rife intended to and did use it — from the storage yard of said third party. We do not believe the fact material, though it is obvious that Marshall’s representation to Rife that the pipe had been “drifted” was made because the third party had so represented that fact to Marshall. This Marshall relied upon, without any examination made to confirm it. Rife knew that this was the situation, but was content to rely on Marshall’s representation without independent investigation on his own part.

Before accepting the pipe, when it was delivered at the wellsite, Rife’s representative looked down each section of pipe to determine that it was open; however, the interior dimension of the pipe was supposed to have been 2i/£ inches, and the evidence satisfactorily established that the only way to determine that such was true as to the pipe delivered was by “drifting” it. It was proved that it is neither usual nor customary for a purchaser to “drift” pipe when it is delivered at a wellsite.

Rife used the pipe to drill into the old “hole”, cemented it in place, and did all things expected to be necessary to prepare it for “swabbing”. At that point it was found that the “swab” would not go very far down the string of pipe. As already indicated, it is necessary to position the “swab” at the lower end of the string of pipe in order to pump the oil. Furthermore the “swab” must have the close tolerance heretofore mentioned.

Many things were tried in order to get the “swab” down the string of pipe to the point where the well could be pumped. Ultimately it was determined that sections of the pipe had to be milled out by a machine tool. In performing the milling operation it became apparent that the interior of some of the sections of pipe had been coated with a plastic compound, while the interior of other sections had mot been so coated. It was referred to in. the evidence as a “mixed string” of pipe. It was discovered that a point would be struck where plastic would “mill out” of the entire section of pipe, to be followed by a section where the milling tool would pass on down the pipe without hindrance to another section where plastic would be “milled out”. By this method the lower part of the pipe was reached. Finally the “swab” was inserted and put into operation. This made a well which pumped oil, giving Rife what he expected to have without necessity of milling the pipe. Obviously plastic inside some of the sections had reduced interior dimensions below 2i4 inches. Such could not be true of pipe which had been “drifted”. Thus the evidence established that some of the sections had not been “drifted”.

Rife deducted from Marshall’s bill the amount reasonably and necessarily expended in milling operations, being the expense requisite to make the pipe useful to accomplish the purpose intended and understood by both parties. This the trial court (also sitting as the fact-finding agency) found to have been proper. Judgment was in accord.

In view of Marshall’s representation to Rife that the pipe had been “drifted”, relied upon by the latter in the purchase, we believe that Marshall became liable on the theory of express warranty. In this connection we take notice of the fact that it was not reasonable to expect that the inspection -Rife’s agent made at time the pipe was delivered did or should have revealed to him the fact that the pipe was not as represented, to wit: pipe which had been “drifted”. See 50 Tex.Jur.2d, “Sales”, p. 440, et seq., “Express Warranties”, § 143, et seq.; Blythe v. Speake, 23 Tex. 429 (1858).

Furthermore, in view of the fact that both parties were fully acquainted with the úse to be made of the pipe we believe that Marshall became liable on the theory of implied warranty. The doctrine of caveat emptor finds one of its exceptions in the implied warranty by a seller of the fitness or suitability of good purchased for a known purpose. See 50 Tex.Jur.2d, “Sales”, p. 460 et seq., “Implied Warranties”, and especially § 159 at p. 468, “Fitness or suitability for buyer’s purpose”. In this connection we again take notice of the inspection Rife’s agent made of the pipe at time of the delivery and that it would not be reasonable to expect that he should have discovered that it was in fact unsuitable for the intended purpose.

Judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    Donald R. LANG, Appellant, v. Jack M. BASS, Jr., et al., Appellees.
    No. 7679.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 23, 1965.
    Rehearing Denied Dec. 14, 1965.
    See also Tex.Civ.App., 374 S.W.2d 900.
    Gerald H. Fortney, Houston, for appellant.
    William Key Wilde, Bracewell, Reynolds & Patterson, David J. Nagle, Nagle & Hall, Houston, for appellees.
   CHADICK, Chief Justice.

This suit originated as an action to recover the unpaid balance of a promissory note, a reasonable attorney fee as contracted for in the note, interest, etc. The trial court’s take nothing judgment rendered non obstante veredicto is affirmed.

Prior to the trial on the merits this case was consolidated for trial purposes with two others and by stipulation the United States Sulphur Corporation, a co-defendant, was dismissed as a party. Early in the trial on the merits parol evidence tending to prove that Jack M. Bass, Jr., and a partnership composed of Harold W. Clark, Beverly W. Landstreet III, Edward L. Kirkpatrick, Jr., and William Nelson II were co-guarantors of the payment of the promissory note in suit and obligated to pay it, though not signatories, was excluded as violative of Articles 3995, subdivision 2 (Statute of Frauds), and 5932, subsection 18 (Negotiable Instrument Act), Vernon’s Annotated Texas Civil Statutes.

To avoid the consequences of the trial court ruling, the defendant Donald R. Lang by trial amendment deleted all reference to a promissory note from his trial petition. As amended his petition stated an action for money lent. Bass and the partnership countered by pleading the two year statute of limitations, Article 5526, Section 4.

If it be conceded that the liability Lang seeks to enforce did not arise out of the promissory note and is not based thereon, and that the note is merely incidental and collateral to the agreement between Lang, as lender, and Bass and the partnership, as borrowers, as Lang contends, the two year statute of limitation bars his action. The breached loan agreement was not in writing. Lang’s amended trial petition asserted the indebtedness matured on or before February 18, 1962, and Bass and the partnership failed then and thereafter to satisfy it in full. The trial amendment pleading the action for money lent was filed with the permission of the court after trial on the merits began on September 17, 1964. More than two years elapsed between accrual of the action and the institution of a suit to enforce liability. The trial court’s judgment is affirmed. Moore v. Dilworth, (1944), 142 Tex. 538, 179 S.W.2d 940; Article 5526, Sec. 4.


author: CLAYTON, Justice.

text:
    MIDLAND COUNTY, Texas, et al. Appellants, v. Hank AVERY, Appellee.
    No. 5745.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 8, 1965.
    Rehearing Denied Jan. 5, 1966.

      Harrell Moore, County Atty., Frank Stubbeman, W. B. Browder, Jr., F. H. Pan-nill, Stubbeman, McRae, Sealy & Laughlin, Midland, for appellants.
    Wm. A. Olson, Austin, for appellee.
   CLAYTON, Justice.

This is a county commissioners’ precinct redistricting case, appealed from the judgment of the District Court of Midland County, Texas. Avery, appellee here, brought the suit as a resident property owner, tax payer and qualified voter of the City of Midland, County Commissioners’ Precinct No. 1, Midland County, Texas, “individually and on behalf of other persons similarly situated and qualified” against the County of Midland and its county judge and four county commissioners, appellants here. Plaintiff-appellee’s pleadings reflect that, since the time of its incorporation in 1901, the City of Midland, lying virtually in its entirety in Commissioners’ Precinct No. 1, has been the only incorporated city, town or village in Midland County. The city’s population had grown through the years until at the time of the 1960 Federal Decennial Census its population represented 92.48 per cent of the population of the county, and Precinct No. 1 contained 97.80 per cent of the population of the county. Of the qualified voters of the county in that year, 97.88 per cent resided in Precinct No. 1. Plaintiff asserted that other things, such as market value and assessed value of taxable property, miles of county roads, land area, allocation and use of county funds and revenue, etc., were disproportionately distributed among the commissioners’ precincts of the county, making the precincts as established “grossly impractical and inconvenient to the people”. In September, 1962, plaintiff petitioned the Commissioners’ Court for a redistricting of the county’s precincts, but “such petition and request was refused”. In that same month this suit was filed to compel a redistricting, invoking the jurisdiction of the district court under its supervisory control of county commissioners’ courts as provided in Article V, § 8 of the Texas Constitution, Vernon’s Ann.St. During the pendency of this suit, and in July and August, 1963, public hearings were held by the Commissioners’ Court on the matter of redistricting the county, during which time plaintiff and others testified or presented plans for such redistricting. On August 31, 1963, plaintiff’s pleadings relate, the Commissioners’ Court adopted an order, effective January 1, 1964, redistricting Midland County into commissioners’ precincts, which order, plaintiff alleges, made only insignificant changes in the boundaries of commissioners’ precincts and in no way corrected or lessened the great disparity in population, qualified voters, land area, assessed value of taxable property, miles of county roads and other pertinent things among the commissioners’ precincts of said county; that in passing said order the commissioners had acted arbitrarily and capriciously, in abuse of their discretion and without regard to the convenience of the people of Midland County or the rights, privileges and guarantees of plaintiff and others similarly situated by the Constitution of the State of Texas and of the United States. Plaintiff prayed that such order of the Commissioners’ Court of August 31, 1963 and all prior orders dividing Midland County into commissioners’ precincts be set aside and that writ of mandamus issue compelling the defendants to pass a new order giving proper consideration to equality of population and the other factors said by plaintiff to be pertinent in the division of the county into commissioners’ precincts.

The presiding judge, who heard the cause without the intervention of a jury, found that Precinct No. 1 had in excess of 95 per cent of the total population of the county under the order of August 31, 1963, and that on the date of such order over 97 per cent of the qualified voters of the county resided in said Precinct No. 1, and that there was a gross disparity of other pertinent factors, such as land area and taxable values in said order as in all previous orders dividing said county into commissioners’ precincts; that in passing such order of August 31st the defendants had acted arbitrarily, capriciously, unreasonably, unfairly and wrongfully, in gross abuse of their discretion, and that their action constituted invidious discrimination. The court’s judgment further found that the said order was not for the convenience of the people of said county as required by Article V, § 18 of the Constitution of the State of Texas. The judgment of the court set aside said order and all previous orders dividing the county into commissioners’ precincts, and ordered that the Commissioners’ Court, not later than the next succeeding July or August term of said court, “divide said County into four Commissioners’ Precincts for the convenience of the people of said County and in so doing to establish such Commissioners’ Precincts so that each •will have substantially the same number of people”. (Emphasis supplied).

Appellant Commissioners advanced twelve points of error and appellant Midland County presented two points of error attacking the District Court’s order as above set out. We deem it unnecessary to discuss these points separately or at length, but will treat only those assignments which relate to that part of the order underscored above which embodies the mandatory requirement that the county be divided into precincts so that each would have substantially the same number of people. We are in accord with the assertion by appellant Commissioners that “neither the Constitution of the United States nor the Constitution of Texas, as construed and interpreted by the courts, contains any requirement that county commissioners precincts be equal to each other in population * * * ” Article IV, § 4 of the United States Constitution merely provides that “The United States shall guarantee to every State in this Union a Republican Form of Government * Amendment XIV, section 1 provides: “ * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Article V, § 8 of the Texas Constitution provides that the district courts “shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law; * * * ”; and § 18 of the same Article relates to commissioners’ precincts:

“Each organized county in the State now or hereafter existing, shall be divided from time to time, for the convenience of the people, into precints, not less than four and not more than eight. * * * Each county shall in like manner be divided into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner * * *. The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed. * ‡

Among the scant authority in Texas on the subject of establishment of commissioners’ precincts is to be found the 1932 opinion of this court in Lewis v. Harris, 48 S.W.2d 730, in which a writ of error was refused. This was a redistricting case which arose in Upton County, and we find the facts involved and the language employed so nearly applicable to the case before us as to justify quotation therefrom at some length. The court states:

“ * * * Appellants cite section 18, art. 5, of the State Constitution which, in substance, requires the division of the county ‘from time to time, for the convenience of the people, into precincts,’ and that the commissioners’ precincts shall be four in number.
“Disregarding legal conclusions stated therein, the petition here simply shows a state of facts which gives to the town of Rankin and precincts Nos. 1, 2, and 3 a power of control over the commissioners’ court of the county out of proportion to their population, voting strength, and taxable values, thereby denying to the town of Mc-Camey and precinct No. 4 the representation upon the court and power of control to which such town and precinct is justly entitled by the population, voting strength, and taxable values thereof.
“As applied to different situations, the phrase ‘convenience of the people,’ as used in the Constitution, may have different meanings, but in our opinion it cannot properly be construed as imposing upon a commissioners’ court the absolute duty of rearranging the boundaries of commissioners’ precincts, from time to time, so as to accord to each precinct representation upon and power of control of the commissioners’ court in proportion to their respective populations, voting strengths, and taxable valuations. This is what the present action seeks to compel. The location of cities and towns in certain counties is no doubt such that it cannot be conveniently done. From a political viewpoint it is desirable and just that the precincts should be so arranged, but in some instances it is doubtless not practical.
“It is not alleged that a redivision of the county as“sought is practical and convenient for the people. Plaintiffs simply base their demand upon population, voting strength, and taxable valuation. The present division is inconvenient in the sense only that the town of McCamey and precinct No. 4 have not the representation upon and control of the commissioners’ court to which the plaintiffs say such town and precinct are justly entitled by the population, voting strength, and taxable valuation thereof.
“There is no law imposing upon a commissioners’ court the duty of rearranging the commissioners’ precincts of a county upon such a basis, and the writ of mandamus will not lie to compel such action. The demurrers were properly sustained.”

The cited case is given recognition in Hatter v. Worst, 390 S.W.2d 293 (Tex.Civ.App., 1965; n. r. e.), although Lewis v. Harris was not controlling on the issue involved in the latter case. An analytical and well-documented discussion of the case now before us is to be found in the Winter, 1965 issue of the Baylor Law Review, Vol. XVII, No. 1, p. 41, written by J. William Davis, which it would be well for the reader of this opinion to review for additional background information on the case before us.

We have come to the conclusion that the judgment of the lower court in the instant case must be reversed. It has been stated here that this judgment orders the Commissioners’ Court of Midland County to divide said county into four Commissioners’ Precincts “for the convenience of the people of said County” and in so doing to establish such commissioners’ precincts “so that each will have substantially the same number of people”. The order thus exceeds the admonition contained in the Texas Constitution that requires only that the division of the county in such precincts be “for the convenience of the people”, which, as stated in Lewis v. Harris, supra, cannot properly be construed as imposing upon a commissioners’ court the absolute duty of rearranging the boundaries of commissioners’ precincts so as to accord to each precinct representation upon and power of control of the commissioners’ court in proportion to their respective populations, voting strengths and taxable valuations, however desirable, in certain instances, such a division might be. Just as there is no law or constitutional requirement that such a division be made, neither is there authority, in our opinion, for the lower court herein to compel the establishment of commissioners’ precincts so that each will have substantially the same number of people. Following this reasoning, the lower court was without authority to enter the order embodied in its judgment, and such judgment must therefore be reversed.

Since this case has been thoroughly tried and expertly briefed by both parties, we feel that no useful purpose would be served by a remand, and this cause is therefore here rendered for the appellants.

Reversed and rendered.


author: BARROW, Justice.

text:
    Quincy LEE, Appellant, v. Edgar B. BOWLES et al., Appellees.
    No. 14425.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 1, 1965.
    Rehearing Denied Dec. 29, 1965.

      Foster, Lewis, Langley, Gardner & Hawn, Willis T. Taylor, San Antonio, for appellant.
    Dayton G. Wiley, Peter N. Plumb, Lewin Plunkett, San Antonio, for appellees.
   BARROW, Justice.

Appellant, Quincy Lee, brought this suit to permanently enjoin appellees, Edgar B. Bowles and Pan American Speedway, from establishing, operating and maintaining an automobile race track and drag strip on a tract of land owned by appellees and located near appellant’s residence in a predominantly rural area, a few miles north of San Antonio.

The jury found that the contemplated use of appellees’ property as a race track, alone or combined with a drag strip, would substantially interfere with the reasonable use of appellant’s property as a home, by a person of ordinary sensibilities, tastes and habits. The issue of balancing of equities was severed on motion of appellant and following the jury trial, a hearing was had before the court on this issue. After this hearing, a judgment was entered wherein the court concluded from the verdict of the jury that the contemplated use of appellees’ property without a drag strip would be a nuisance; however, the court found that the equities were in favor of the appellees and the community, and that the injunctive relief sought by appellant against the proposed use of ap-pellees’ property as a race track should be denied.

Judgment was entered permanently enjoining appellees from establishing, operating and maintaining a drag strip upon their property, but denying appellant injunctive relief against the proposed race track. Appellant complains of the denial of this in-junctive relief and urges that the doctrine of balancing of equities is not applicable, and that the trial court abused its discretion in not enjoining both proposed activities. In the alternative, appellant urges that the judgment should be modified to limit the race track operations. Appellees do not complain of the judgment as entered, but assert by cross-assignments several prejudicial errors occuring in the trial.

Appellant’s home, which was constructed in 1962 at a cost of almost $100,000, is located on a small hill near the intersection of Toepperwein Road and the access road west of I.H. 35. With the exception of the land adjoining I.H. 35, most of the land in the areas is rural countryside with only a few residences. In January, 1965, appel-lees purchased an 85-acre tract northwest of appellant’s home and commenced construction of a race track. Appellant learned of this fact about the middle of January and promptly consulted an attorney. This suit, seeking injunctive relief only, was filed on February 10. At this time appellees had expended or become obligated for over $100,000. However, little actual construction had been accomplished before the suit was filed, and appellees did not try to cancel any of their contractual obligations after learning of appellant’s objections. The planned oval track is 2800 feet from appellant’s home at the closest point.

Appellant’s complaints relate primarily to the noise which would he made by the racing automobiles, although there was evidence of traffic congestion on Toepperwein Road created by patrons going to and from the track, and of litter which might be dropped in the area by the patrons. There was evidence that although appellant’s home was air-conditioned, his family enjoyed outdoor living and spent most of their leisure time outside the house and around their swimming pool and patio. Appellant admitted that his home was very close to I.H. 35, which was heavily traveled, and that the flight pattern for Randolph Air Force Base was close to his home. He testified that he had bought the property knowing of the sounds created by these sources, and, although they could sometimes be heard in the home, these sounds did not disturb the family.

Expert witnesses were called by appellant, who testified to experiments whereby measurements of the sounds of a Houston oval race track and a Victoria drag strip were projected to appellant’s property and the noise level measured. There was testimony that the average noise level created by racers on the oval track as proposed by appellees would double the average noise level created by the highway traffic. While the airplane jets might create a louder sound at times, this sound was very infrequent and of short duration. The racing cars are not equipped with a muffler and therefore make much more noise than ordinary traffic. An expert witness testified that ordinary conversation could not be accomplished on appellant’s patio during the races at a greater distance than one to four feet, and that sleep would be difficult unless appellant’s house was closed. This testimony was corroborated by lay witnesses.

Appellees’ track is located on the north side of Toepperwein Road, about one-half mile west of the access road of I.H. 35, and is between this access road and Lookout Road. Nacogdoches Road is a short distance west of Lookout Road. It was anticipated by appellant’s witnesses that most of the traffic would go to the track via I.H. 35. A traffic engineer testified that based upon Bowles’ estimate of 2000 cars arriving in the hour preceding start of the program, traffic conditions would be very congested on Toepperwein Road. Appellees contemplated selling drinks in paper cups as well as hot dogs and concern was expressed by several witnesses as to whether these papers and wrappers would litter the countryside.

As races had not been conducted at this site, most of the evidence relative to the noise and congestion was necessarily based upon the opinion of experts and experiments conducted by them. Appellees previously had operated a race track for several years at a location within the city limits. This operation was on a smaller scale and was abandoned by appellees in October, 1964, because of their inability to secure a long-term lease. Several witnesses testified concerning the sounds from this track. There was evidence from one witness called by appellant that the noise was very disturbing, and appellees produced several witnesses who had lived nearby and they testified that the sounds from the old speedway did not annoy them.

Appellant urges the doctrine of balancing the equities should not be applied in this case, as appellees did not show a public necessity for the race track, but rather a purpose of private profit. The track was planned in an unzoned area and the proposed operation was a lawful business. The case therefore involves the conflicting rights of two lawful owners. The courts have consistently recognized that the abatement of a lawful place of business is a harsh remedy. The trial court properly heard evidence on the question of balancing the equities to determine if an injunction should be granted. Hindman v. Texas Lime Co., 157 Tex. 592, 305 S.W.2d 947 (1957), affirming Tex.Civ.App., 300 S.W.2d 112; Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (1950); Garland Grain Co. v. D-C Home Owners Improvement Ass’n., Tex.Civ.App., 393 S.W.2d 635, wr. ref., n. r. e.; Hill v. Villarreal, Tex.Civ.App., 383 S.W.2d 463, wr. ref. n. r. e.; Georg v. Animal Defense League, Tex.Civ.App., 231 S.W.2d 807, wr. ref. n. r. e.

Thirteen witnesses, including three State Representatives from Bexar County, the Sheriff of Bexar County, a San Antonio hotel manager, and a professional sports writer, testified that the proposed race track would be an asset and beneficial to San Antonio and Bexar County. There was evidence that automobile racing is the second most popular sport in the United States from the standpoint of number of paid spectators, and is gaining in popularity; that this track would help the economy of the area and stimulate tourist trade; that there were sufficient people in Bexar County interested in this sport to support a race track. Several residents in the immediate vicinity of the track testified it would stimulate growth in their area. A realtor testified appellees’ land was suitable for a race track and that this was the highest and best use of this land. There was evidence that there was no other location in Bexar County that would not be within one-half mile of a residence and subject to the same objections raised by appellant.

Appellee Bowles testified the track would be operated in a manner so as to interfere as little as possible with appellant’s home life. He said the track season would be five months, from May to late September and would operate primarily on Saturday nights, with the racing program ending by 10:00 p. m. He promised that Toepperwein Road would be paved before the track opened and the track parking lot would be paved if excessive dust was created. Officers would be niied to handle traffic congestion and the entire area would be kept free of debris.

The evidence showed that appellant’s swimming pool and patio are on the opposite side of his house from the track site, and that the prevailing wind during the track season would blow from the residence toward the track. The noise level would be greatly diminished inside appellant’s home.

In Repka v. American National Ins. Co., 143 Tex. 542, 186 S.W.2d 977 (1945), the Supreme Court recognized the general rule that the granting or refusal of an injunction is ordinarily within the sound discretion of the trial judge, and his action will be reversed only when a clear abuse of that discretion is shown. Injunction is an equitable proceeding and is only available where the remedies at law are inadequate. Rule 693, Texas Rules of Civil Procedure; King’s Estate v. School Trustees of Willacy County, Tex.Civ.App., 33 S.W.2d 783, wr. ref.

Appellant urges that the doctrine of balancing the equities should be applied only where a public necessity is shown. In Storey v. Central Hide & Rendering Co., supra, the Court required a balancing of equities and quoted with approval 31 Tex. Jur. 448, which reads in part as follows: “According to the doctrine of ‘comparative injury’ or ‘balancing of equities’ the court will consider the injury which may result to the defendant and the public by granting the injunction as well as the injury to be sustained by the complainant if the writ be denied. If the court finds that the injury to the complainant is slight in comparison to the injury caused the defendant and the public by enjoining the nuisance, relief will ordinarily be refused. It has been pointed out that the cases in which a nuisance is permitted to exist under this doctrine are based on the stern rule of necessity rather than on the right of the author of the nuisance to work a hurt, or injury to his neighbor. The necessity of others may compel the injured party to seek relief by way of an action at law for damages rather than by a suit in equity to abate the nuisance.”

In Storey the Supreme Court affirmed the action of the Court of Civil Appeals in reversing the trial court’s action in permanently enjoining the operation of a rendering plant. This Court recently affirmed a trial court’s balancing of the equities in favor of operation of a rendering plant. See Hill v. Villarreal, supra. The doctrine of balancing of the equities has been applied in other cases in which the public necessity has not been as dramatically shown and where private proprietory interests were involved. Hindman v. Texas Lime Co., supra, involved a plant manufacturing lime products; Georg v. Animal Defense League involved an animal shelter for stray dogs. In Lamb v. Kinslow, Tex. Civ.App., 256 S.W.2d 903, the rule was applied, but the trial court found that the equities were against the burning of cotton burrs by the gin. Fargason v. Economy Furniture Co., Tex.Civ.App., 356 S.W.2d 212, balanced the equities in favor of operation of a furniture plant; and in Garland Grain Co. v. D-C Home Owners Improvement Association, supra, the Court of Civil Appeals balanced the equities in favor of operation of a feed lot.

The evidence in this case justified a finding by the trial court that the public generally would benefit from the operation of this track, both from a standpoint of recreational value and as an economic asset. Further, there was no showing that the proposed location was unsuitable.

Appellant cites several out-of-state authorities involving race tracks. Sakler v. Huls, Ohio Com.Pl., 183 N.E.2d 152, and Shew v. Deremer, 203 N.E.2d 863, are opinions of Ohio trial courts wherein the trial court granted the injunctions against a race track. They therefore are not applicable in our case, where the chancellor has balanced the equities in favor of operation of the race track. In Kohr v. Weber, 402 Pa. 63, 166 A.2d 871 (1960), the trial court enjoined operation of a drag strip and the Supreme Court affirmed. In Hooks v. Inter. Speedways, Inc. (1965), 263 N.C. 686, 140 S.E.2d 387 the Court held that church officials alleged a cause of action to enjoin construction of a race track close to the eighty-year-old church, where evidence showed that church services would be disturbed. The only case cited by appellant wherein the chancellor’s decision was reversed is Guarina v. Bogart, 407 Pa. 307, 180 A.2d 557, 93 A.L.R.2d 1165 (1962), where a drive-in theatre used public loud speakers in lieu of individual car speakers which could have been installed at a small cost. The Supreme Court reversed the case and, although not shutting down the theatre, required it to install car speakers.

Appellant urges that an abuse of discretion is shown in that the trial court enjoined appellees’ operation of a drag strip, while refusing to enjoin a race track. It is seen, however, that appellee Bowles and his attorneys stated in open court that appel-lees had abandoned their intention to construct a drag strip and were willing to be enjoined from constructing same.

The balancing of equities was an issue to be determined by the chancellor in accordance with established equitable rules and principles. Hill v. Villarreal, supra. We have reviewed the record in this case and cannot say that the trial court abused its discretion in refusing to enjoin the proposed operation of the oval race track.

Appellant urges in the alternative that the judgment should be modified to restrict appellees’ operation to the specific times which appellees by their pleadings and testimony proposed to operate the track. By supplemental brief appellant suggests that appellees are already operating a winter season contrary to their previous intentions. It is seen that this case involved only a proposed operation and therefore evidence was not heard concerning the actual operation. The trial court has the authority to hear evidence to modify the judgment if appellees’ actual operation should justify a modification. The trial court is the proper forum to hear evidence of such justification.

Appellees make no complaint of the judgment, and therefore their cross-points are immaterial and not considered.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    Austin F. DREXLER, Appellant, v. BRYAN BUILDING PRODUCTS COMPANY, Appellee.
    No. 4419.
    Court of Civil Appeals of Texas. Waco.
    Dec. 16, 1965.
    Rehearing Denied Jan. 6, 1966.
    Fischer, Wood, Burney & Nesbitt, James R. Harris, Corpus Christi, for appellant.
    W. C. Davis, Bryan, for appellee.
   McDONALD, Chief Justice.

This is an appeal by defendant Drexler from an adverse judgment on his cross-action against plaintiff Bryan Building Products, hereafter referred to as BBP.

Plaintiff BBP sued defendant Drexler for debt for $2471. Drexler admitted such debt, but by cross-action for breach of contract, asserted claim against plaintiff for $7382. Drexler alleged BBP agreed in writing to furnish window units for the construction of Harrison School for $1526; that Drexler accepted such proposal; and, relying on same, bid on the Harrison School project, and was awarded the contract; that BBP refused to perform its contract; and that Drexler had been damaged $7382, in that it had another supplier furnish the windows for $7382 more than the price bid by BBP.

BBP denied that it contracted to furnish the windows for $1526; asserted its proposal to furnish such windows for $1526 was conditional; asserted Drexler did not submit a purchase order as called for in its proposal; and asserted its proposal did not become a contract.

BBP further plead that on March 28, 1963 its submitted 2 proposals to Drexler to furnish window units for 2 construction jobs Drexler was bidding on; the Harrison job which was a 6 classroom school with 28 windows, and the Roosevelt job which was a 2 classroom school with 6 windows; that BBP erroneously inserted the Roosevelt figure of $1526 into the Harrison proposal, and erroneously inserted the Harrison figure of $10,228 into the Roosevelt proposal; that such figures were mistakenly reversed and that Drexler knew, or should have known, that the quotations were erroneously reversed.

Trial was to a jury which found:

1) Drexler and BBP did not unconditionally agree that BBP would sell Drexler the window units for the $1526 recited in BBP’s proposal.
2) The insertion of $1526 into the bid of BBP was a mistake on the part of BBP.
3) Drexler did not discover the mistake prior to accepting the bid made by BBP.
4) The mistake was caused by the failure of BBP to exercise that minimum degree of care which Drexler might reasonably expect its bidders to exercise.

The trial court entered judgment for BBP for its suit for debt, and decreed that Drexler take nothing by its cross action.

Drexler appeals from the take-nothing judgment on its cross-action, contending:

1) The evidence shows as a matter of law there was a contract between the parties.
2) Under the record, there was a unilateral mistake on BBP’s part which, as a matter of law, precludes BBP from equitable relief.

The record reflects Drexler was a general contractor, and BBP a furnisher of material; that BBP made proposals to Drexler to furnish window units for 2 jobs Drexler was bidding on; that BBP submitted its proposal to Drexler for the Harrison 6 classroom 28 window school, and for the Roosevelt 2 classroom 6 window school; that BBP mistakenly reversed the figure so that a $1526 price was stated on the Harrison proposal, and a $10,228 price was stated on the Roosevelt proposal. BBP’s proposals were given Drexler on March 28, 1963. BBP’s proposals stated: “All quotations are subject to prompt acceptance and transmittal of order. Prices are subject to change without notice. Terms of Sale: All items subject to the approval of our credit department.” Drex-ler accepted the Harrison proposal by letter to BBP on March 29, 1963 which BBP received on April 1, 1963. On April 1, 1963 BBP wrote Drexler that they could not accept his letter of March 29th in lieu of a purchase order, and sent him corrected copies of the proposal reflecting a $10,228 price for the windows for the Harrison job.

Drexler thereafter contracted to build the Harrison school; built same and purchased the windows from another supplier for $7382 more than the $1526 recited in BBP’s original proposal.

Mr. Drexler testified in prior dealings with BBP that proposals had been accepted through the process of issuing a purchase order; and the record reflects that in the building trade proposals as here are almost exclusively accepted with a written purchase order. Mr. Drexler further testified as to how a contract is entered into with the suppliers:

“Q. Can you tell us the usual procedure of entering into a contract after being awarded the contract ?
“A. Normally all you do is check with the various suppliers and contractors to see if everything is in order, and if there is any price differential you iron it out, and then you enter into a contract.”

Further, the record is undisputed, and Mr. Drexler admitted, that he had learned of the mistake in the proposals prior to the time he entered the contract with the School Board to build the Harrison School.

Assuming without deciding that a contract existed between BBP and Drexler, the conditions of remedial mistake are present, and equitable relief will be granted against BBP’s unilateral mistake. Taylor & Son, Inc. v. Arlington Ind. Sch. Dist., Sup.Ct., 335 S.W.2d 371, holds that even after acceptance of a bid but before execution of contract contemplated by the parties, a bidder for a public contract who makes a remedial mistake in his bid may, by giving notice thereof before material change of position to detriment of the of-feree, obtained rescission of bid or relief against its enforcement. Negligence is distinguished by the Taylor case supra, “from a clerical or inadvertent error in handling items of a bid, either through setting them down or transcription,” as the undisputed evidence reflects was the situation in this case.

The judgment is correct.

Affirmed.


text:
    William DOBROWOLSKI, Jr., Appellant, v. Rae Sanders WYMAN, Appellee.
    No. 14426.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 8, 1965.
    Rehearing Denied Jan. 5, 1966.

      W. Pat Camp, Richard Tinsman, San Antonio, for appellant.
    Pat Maloney, San Antonio, for appellee.
   MURRAY, Chief Justice.

William Dobrowolski, Jr., was appointed guardian of the person and estate of his wife, Eulalya Ewen Dobrowolski, and duly qualified as such. Mr. Dobrowolski has a son by a former marriage, and Mrs. Dob-rowolski has a daughter by a former marriage, Rae Sanders Wyman, appellee herein, who sought to have William Dobrowolski, Jr., removed as guardian of his wife, Eu-lalya, and have herself appointed on the ground that he was disqualified under the provisions of Sec. 110(e) of the Probate Code, V.A.T.S., providing in effect that a person is disqualified to act as guardian who is asserting any claim to any property adverse to the person for whom the appointment is sought. The County Court agreed with Mrs. Wyman and removed William Dobrowolski, Jr., as his wife’s guardian, and appointed Mrs. Wyman as such. An appeal was taken from this order of the 45th District Court of Bexar County, where the order of the County Court was upheld, and William Dobrowolski, Jr., has prosecuted this appeal from that judgment.

Mr. and Mrs. Dobrowolski have been married for some seventeen years. Each of them had previous marriages, and each had one child by a previous marriage, but none by their present marriage. Each spouse had separate property when they were married. Mrs. Dobrowolski managed her separate estate and reinvested the income from that estate. There was one account in the National Bank of Fort Sam Houston, Texas, which could be checked upon only by Mrs. Dobrowolski and her daughter, Rae Sanders Wyman. There was another account in the National Bank of Fort Sam Houston which could be checked on by both the husband and wife. Appellant called this account an operating account. Both spouses were supposed to put their income in this account, but appellant said his wife put only a small portion of her separate income in this account. There was an account in the Broadway National Bank which could only be checked on by appellant.

On July 4, 1964, Mrs. Dobrowolski gave her daughter, appellee herein, a blank signed check, which appellee filled in for the sum of $6,000.00, and deposited this money in an account subject only to appellee’s signature. Mrs. Dobrowolski went to the hospital on July 5, 1964, and has been there ever since, and, according to the doctor, there is little hope of any improvement.

In another proceeding, appellee has been enjoined from using any of the proceeds of this $6,000.00 check for her own use, but before the temporary injunction was issued, she had already spent $720.00 on herself out of this fund.

Mr. and Mrs. Dobrowolski own a home in San Antonio. Mr. Dobrowolski executed a deed conveying this home to Mrs. Dob-rowolski, but he testified that he has an equity in it, because since he executed the deed a great deal of their community funds have been spent in improving the home.

After Mr. Dobrowolski learned that his wife had given her daughter a check on their community funds for $6,000.00, he drew the rest of the money out of their joint account and placed it in an account subject only to his and his son’s signature.

It is quite clear that under the law, Art. 4616 and Art. 4619, Vernon’s Ann. Civ.Stats., and Art. 16, § 15, Tex. Const., Vernon’s Ann.St., a wife has a right to manage and control her separate property and collect the rents, revenues and income from such separate estate. She also has a right to manage and control such income, but the income becomes “special community” and must ultimately be accounted for as such. U. S. Fidelity & Guaranty Co. v. Milk Producers Ass’n. of San Antonio, Tex.Civ.App., 383 S.W.2d 181.

It is quite clear that it is going to take a complete accounting to determine what funds belong to the separate estate of the spouses and what is community property. By commingling her separate estate, with the income therefrom, Mrs. Dobrowol-ski has in her separate account funds that constitute “special community.” Mr. Do-browolski says that he only wants what the law gives him, but to apply this to the involved situation we have, is going to be a somewhat difficult undertaking. Mrs. Dobrowolski is now incompetent and cannot represent herself in these matters; she will have to be represented by a guardian. Her husband is not in a position to represent her as there is a conflict of interest, and therefore he is disqualified under the provisions of Sec. 110(e), Texas Probate Code, to act as her guardian.

Appellant contends that this is only a guardianship proceeding and not a final accounting between himself and his wife, but before a guardian can take over and manage a ward’s separate estate, the guardian will need to know of just what that estate consists. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620. The trial court properly held that Mr. Dobrowolski is disqualified to act as guardian of his wife’s separate estate, and we find no reason for setting aside such holding.

Mr. Dobrowolski contends that if he is disqualified to act as guardian of his wife’s estate, then appellee is also disqualified to do so, because the evidence shows that she owes Mrs. Dobrowolski’s estate $720.00. Sec. 110(e) Texas Probate Code. Appellee contends that this sum was a gift to her from her mother, and that she is not indebted to her mother’s separate estate. From the record before us, we are unable to say that the trial court erred in holding that Rae Sanders Wyman is qualified to serve as guardian of the estate of her mother.

The judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    A. J. HAMILTON et al., Appellants, v. Lela Kate BUTLER et vir, Appellees.
    No. 4023.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 19, 1965.
    Rehearing Denied Dec. 17, 1965.

      Yates & Yates, Edmund C. Yates, Abilene, for appellants.
    Eplen, Daniel & Ames, J. Neil Daniel, Abilene, for appellees.
   GRISSOM, Chief Justice.

A. J. Hamilton and others, nephews and nieces and grandnephews and grandnieces of T. R. Rhodes, deceased, sued Lela Kate Butler alleging they were the heirs at law of T. R. Rhodes, and as such entitled to recover S3 per cent of his estate. Mrs. Butler’s claim to said property was based upon the following established facts: T. R. Rhodes died intestate in 1963. He left no surviving wife or child. His only child who survived infancy was Forrest E. Rhodes. Forrest E. Rhodes and wife, in 1925, executed, acknowledged and filed for record a written statement adopting Lela Kate Butler which complied with the statute on adoption then in force. In other words, Mrs. Butler was legally adopted by Forrest E. Rhodes. In 1943, Forrest E. Rhodes, died intestate. He left no surviving wife. Said adopted daughter was his only surviving child. Mrs. Butler claims ownership by reason of such statutory adoption in 192S, and the 1955 Probate Code; that upon the death of T. R. Rhodes intestate, she inherited his property through Forrest E. Rhodes and that, in legal effect, she is the only grandchild of T. R. Rhodes and his sole heir at law.

In Section 38 of the Vernon’s Ann.Probate Code it is provided that when a man dies intestate, leaving no wife, his property shall descend and pass first to his children or their descendants. Section 40 provides that “For purposes of inheritance under the laws of descent and distribution, an adopted child shall be regarded as the child of the parent or parents by adoption, such adopted child and its descendants inheriting from and through the parent or parents by adoption and their kin the same as if such child were the natural legitimate child of such parent or parents by adoption * * (Emphasis ours). It is evident that the legislature intended to give to adopted children the same right to inherit from and through adoptive parents and their kin that was possessed by natural children.

The rule is established' that the rights of an adopted child are determined by the law in effect at the death of the person from whom they seek to inherit, rather than the law in force at the time of his adoption. Martinez v. Gutierrez, Tex.Com.App., 66 S.W.2d 678; Volume 2, American Jurisprudence, 2nd Ed., Sec. 109, p. 951.

In Rothman v. Gillett, Tex.Civ.App., 315 S.W.2d 956 and May v. Curry, Tex.Civ.App., 385 S.W.2d 603, it was held that children adopted by deeds of adoption in accordance with the statute under which Mrs. Butler was adopted were entitled to inherit from the collateral kindred of the adoptive parents. In both of said cases the Supreme Court refused a Writ with the notation N.R.E. It is inconceivable that the Supreme Court could have so refused writs if it had entertained the same view as appellants. It must have been of the opinion that the statute in effect when T. R. Rhodes died entitled the adopted child of his son, under the stated circumstances, to inherit through her adoptive parent the same as if she were the natural child of said adoptive parent. Chapter 2 of the Probate Code contains the law of descent and distribution in Texas. Section 40 thereof, giving the right to inherit to adopted children, has been the controlling law relative thereto since its effective date, towit, January 1, 1956. It was the law controlling such inheritance when T. R. Rhodes died in 1963. In Section 38 children or “their descendants” are named as the first persons entitled to take the estate of a person dying intestate. Persons in the category of appellants are put in third place. Said statutes designate appellee, as the sole descendant of the only child of T. R. Rhodes, to take T. R. Rhodes’ said property.

In an excellent brief, appellants contend that the decisions in Rothman v. Gillett and May v. Curry, supra, are wrong and that the decision herein conflicts with that in Hoch v. Hoch, 140 Tex. 475, 168 S.W.2d 638. We think it is not necessary to consider statutes prior to 1951. In 1951, the 52nd Legislature, Chapter 249, page 388 at its regular session, passed an act amending the acts of 1947 and 1931, including Section 9 of Article 46a. Said section then provided that when a child was adopted in accordance with its provisions it should thereafter be held for all purpose to be the child of its adoptive parents the same as though it had been born to them in lawful wedlock and that, for the purpose of inheriting under the law of descent and distribution, such adopted child should be regarded as the child of its parent by adoption, such adopted child and its descendants inheriting from and through the parent by adoption and his kin as though born to them in lawful wedlock, the same as if such child were the natural legitimate child of such parent by adoption. This, despite the italicized provision.

Appellants contend that an interpretation of the statute that authorizes Mrs. Butler to inherit from T. R. Rhodes through her adoptive father is contrary to, at least, the reasoning in Hoch v. Hoch, 140 Tex. 475, 168 S.W.2d 638. It was there held that a blood brother was the “next of kin” entitled to appointment as administrator over an adopted son. That decision is not based on the statutes controlling the decision of heirship here involved. The 1951 statute, on adoption and inheritance was passed eight years after that decision. It, for the first time, expressly provided that an adopted child should inherit from and through the adoptive parents. This statute on inheritance was combined with the adoption procedure statute. In 1955, the 54th Legislature, Chapter 55, page 88, at its regular session, enacted the Texas Probate Code. Chapter 2 thereof contains the present law relative to descent and distribution. It did not disturb the then existing procedure for adoption. With this legislative history in mind, it appears that, in 1955, the Legislature changed, or made more certain, our statutory law relative to descent and distribution as applied to adopted children, left Article 46a of Vernon’s Statutes substantially as it was, and placed all laws of descent and distribution in the Probate Code, beginning with Chapter 2. It is evident that the legislature purposely deleted the provision in Article 46a which on its face appeared to apply only to a child adopted under that article and provided for inheritance by adopted children, under the facts of this case, in accordance with Section 40 of the Acts of 1955, which provided that, regardless of prior statutes and decisions, an adopted child should inherit from and through the adopting parent and his kin, but leaving the procedure for adoption as it was in 46a of Vernon’s Statutes. The effect thereof, as applied to the facts of this case, was to provide that Lela Kate Butler should inherit through her adoptive father, Forrest E. Rhodes, from his father, T. R„ Rhodes, as his only grandchild. Being convinced that said act intended to provide for Mrs. Butler to inherit through her adoptive father from his father, it is not necessary to discuss appellants’ contentions further.

Our interpretation of the said statutes seems to find some support in the Supreme Court’s Per Curiam note refusing a Writ N.R.E. in Johnston v. Calvert, 305 S.W.2d 778, when it said: “We agree with the view * * * that Grant Lindsey, Jr. was not a ‘legally adopted child’ within the meaning of Article 7118 * * *” and Judge Calvert’s statement in Asbeck v. Asbeck, 369 S.W.2d 915, 916, that, in Heien v. Crabtree, 369 S.W.2d 28, the Supreme Court had held that equitable adoption and adoption by estoppel did not create the status of parent and child “as does a legal adoption.” This opinion was delivered in 1963. It seems to recognize that a legal adoption does establish the status of parent and child so that such a child occupies for purpose of inheriting the same position as that of a natural child. With due deference to the contentions appellants so forcibly present, we hold that said statutes put Mrs. Butler in the same position as that of a natural child of Forrest Rhodes with respect to her right to inherit from T. R. Rhodes as his granddaughter.

All of appellants’ points have been considered and are overruled. The judgment is affirmed.


author: LANGDON, Justice.

text:
    W. Floyd DEACON et al., Appellants, v. CITY OF EULESS, Texas, Appellee.
    No. 16683.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 17, 1965.
    Rehearing Denied Jan. 14, 1966.

      Shirley W. Peters, Denton, for appellants.
    Bondurant & Cribbs and James A. Cribbs, Arlington, for appellee.
   LANGDON, Justice.

Appellants filed a collateral attack on three City of Euless annexation ordinances. Both appellee and appellants filed motions for summary judgment. The trial court in granting appellee’s motion found as a matter of law that the three ordinances were valid. We affirm.

Two of the ordinances, 189 and 190, were given first reading on November 13, 1962, and the third ordinance 192 was given first reading on December 11, 1962. All three ordinances were given second and final reading on June 25, 1963. At all times pertinent hereto the City of Euless was a home rule city, having duly adopted a home rule municipal charter under the provisions of Art. XI, § 5, of the Constitution of the State of Texas, Vernon’s Ann.St., and Art. 1175, Vernon’s Ann.Tex.Civ.St.

At the time the annexation ordinances were finally passed on June 25, 1963, the only limitation on the authority of a home rule city to annex additional territory was that the territory sought to be annexed be adjacent to the annexing city and not a part of any other municipality. City of Houston v. State ex rel. City of West University Place, 142 Tex. 190, 176 S.W.2d 928 (1944).

By the first readings of the annexation ordinances on November 13 and December 11, 1962 the City of Euless acquired annexation priority over the territories embraced by such ordinances and such annexation was duly and finally consummated on June 25, 1963, in compliance with the provisions of existing statutes. The jurisdiction of the City of Euless for the purpose of annexing such territory was not subject to defeat under any statute in existence at the time. Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134 (1948).

To defeat the annexation ordinances the appellants rely upon the provisions of Art. 970a, § 7, subd. D, V.A.T.S., reading as follows: “All annexation proceedings by cities which are pending on or instituted after March 15, 1963, shall be subject to the limitations as to size and extent of area imposed by this Act and shall be brought to completion within ninety (90) days after the effective date of this Act or be null and void. Provided, however, any period of time during which a city is enjoined or restrained from completing such annexation proceedings by a court of competent jurisdiction shall not be computed in such ninety (90) day limitation period.”

This act was approved by the Legislature on May 14, 1963, to be effective 90 days after May 24, 1963, the date of adjournment.

“In computing the time when an act is to be deemed effective, both the day of the adjournment of the legislature and the day when the law goes into effect must be excluded.” 53 Tex.Jur.2d 48, § 26. Thus, the act in question would be effective as of August 23, 1963. Under the terms of the act above set out an additional 90 days was permitted beyond August 23, 1963.

The provisions of the statutes under which the City of Euless undertook to annex the territory in question were in full force and effect at all times pertinent to the facts of this case. The provisions of such statutes which were repealed or altered by Art. 970a, supra, remained in force and effect until August 23, 1963, the effective date of the latter Article. The annexation was completed on June 25, 1963, some 59 days prior to the effective date of Art. 970a.

In our opinion the statute in question was prospective and not retrospective in its operation and the ordinances in question and the annexation priority acquired by the City of Euless on November 13 and December 11, 1962, were not thereby affected by its provisions.

“The general rule is that a statute speaks as of the time at which it takes effect. Accordingly, a legislative act is operative as notice and ordinarily it is operative in all other respects, as soon as it becomes a law. * * * ” S3 TexJur.2d 48, § 27.

“A prospective law is distinguished from one that is retroactive by the fact that the latter affects acts or transactions that occurred before it came into effect, or concerns rights that have already accrued. The constitution prohibits the making of retroactive laws. But the constitutional provision is construed merely as forbidding the enactment of any law that will preju-dicially affect existing, vested rights, whether arising out of contract or tort, or the operation of a law in such a manner as to have that effect. The inhibition is not ordinarily extended to a procedural or remedial statute, such as a curative act, or, in fact, to any act that does not disturb or impair vested rights.

“Apart from any constitutional impediment retrospective laws are commonly regarded with disfavor. It is always presumed that a statute is intended to operate prospectively and not retroactively, unless it relates merely to remedies and modes of procedure, and all doubts are resolved in favor of this construction.

“Accordingly, a statute will not be applied or construed retrospectively or given retroactive operation, so as to affect existing rights or create new obligations and impose new duties as to past transactions, unless it clearly appears, from its terms or at least by fair implication, that the legislature so intended. On the contrary, a statute is generally held to operate prospectively unless a contrary construction is required by the terms or by the nature and object of the law.” 53 Tex.Jur.2d 49, § 28.

We are of the further opinion that the appellants’ action is defective and must fail because a quo warranto proceeding is the proper and legal method of attacking municipal annexations rather than by col-lateral attack. Article 6253, V.A.T.S.; Phillips v. City of Odessa, 287 S.W.2d 518 (El Paso Civ.App., 1956, ref., n. r. e.). In the latter case it was stated, “It has been well established that the annexation of adjacent territory by a city may be questioned only by direct suit in the nature of a quo warranto or a proceeding in which the State is a party. The validity of an annexation by a city can not be collaterally attacked.” (Authorities cited.) In the same case it is held that: “The only exception to the above rule appears to develop where the annexation ordinances are void. * * Contrary to the contention of the appellant we believe the ordinances -were valid and that the exception to the above rule has no application to the facts of this case.

See also 30-A Tex.Jur. 111, § 99; City of El Paso v. Ruckman, 92 Tex. 86, 46 S.W. 25 (1898).

All points raised by the appellant are overruled and the judgment of the trial court is affirmed.


author: PRESLAR, Justice.

text:
    Mrs. Ben HALE, Appellant, v. Joe Jesse BAKER et al., Appellees.
    No. 5758.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 1, 1965.
    Rehearing Denied Dec. 22, 1965.

      Huff & Bower, Lubbock, O. E. Halsel, Odessa, for appellant.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, Odessa, for appellees.
   PRESLAR, Justice.

This is an intersection collision case in which a take-nothing judgment was rendered based on findings of the jury that the collision resulted from the negligence of both drivers. Defendant Baker was found to have been negligent in several acts, with which we are not directly concerned here, for the sole basis of the appeal is in regard to the jury’s findings that the plaintiff’s decedent failed to keep a proper lookout and that such was a proximate cause of the collision. The assignments of error are directed at these findings in three points— (1) that there was no evidence to support such findings; (2) the evidence was insufficient to support them; and (3) that such findings are against the great weight and preponderance of the evidence.

We are of the opinion that the judgment should be affirmed, and in arriving at that conclusion we have followed the familiar rules for appellate determination of such assignments by first disposing of the law question of “no evidence” before passing on the fact question of the “sufficiency of the evidence”. Where the assignment is that there is “no evidence”, the reviewing court considers only the evidence favorable to the finding and must sustain the finding if there is evidence of probative force to support it. Hartford Accident & Indemnity Co. v. Gant, Tex.Civ.App., 346 S.W.2d 359; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696. In determining “insufficiency of the evidence” or “contrary to the great weight and preponderance” points, we must consider and weigh all the evidence in the case, and set aside the verdict and remand for a new trial if we conclude that the verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust; both the evidence for and against the finding is considered. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660. Thus, appellant’s points 2 and 3 are one and the same for our determination here.

The collision occurred at the intersection of Barrow Street and the Andrews Highway in the City of Odessa, Texas. The Andrews Highway is a heavily traveled thoroughfare with two lanes of traffic for each direction and runs north and south. Defendant Baker was traveling south on it on the occasion in question. Barrow Street has one lane of traffic for each direction and intersects Andrews Highway from the west at right angles, but does not continue •to the east at this point, so that one traveling east on Barrow (as was the decedent Hale) must turn either to the right or left upon reaching Andrews Highway. There is a stop sign on Barrow Street where it intersects Andrews Highway. The collision occurred as the decedent Hale drove his pickup truck from Barrow Street on to the Andrews Highway in an easterly or northeasterly direction, and Baker was driving south on the highway. The collision occurred about nine or ten o’clock in the morning of a clear day. In reaching its findings the jury had before it evidence that Hale stopped at the stop sign on Barrow Street; that he waited some eight or ten seconds for a small boy to cross the street; that he looked to his left and then pulled out into the intersection; that he proceeded into the intersection at a slow, steady rate of speed, turning slightly to his left (the direction from which the Baker car was approaching) ; that he was not seen to look to the left after leaving the vicinity of the stop sign; that he was looking straight ahead as he proceeded into the intersection; that Baker was in the inside lane next to the center line, and that was the point of impact. There were no obstructions to vision of either driver with regard to seeing the other. The jury had before it photographs of the area taken within a few minutes of the accident which showed the clear weather conditions and the absence of any obstructions to the view of the drivers as to eacji other.' There were no other vehicles to obstruct their views. The evidence was fully developed, and it came from several eye-witnesses, an investigating officer and defendant Baker, and there was no great disparity or conflict in their testimony. Considering only the evidence favorable to the findings, we conclude that appellant’s contention that there is no evidence to support them is without merit; there is some evidence of probative force to support them. And considering all the evidence in the record, we are of the opinion that the evidence is sufficient to support the findings; or, stated otherwise, the findings are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Appellant urges that the disposition of this case is controlled by Dewhurst v. South Texas Rendering Co., Tex.Civ.App., 232 S.W.2d 135, but we see nothing in the case before us of the element present in the Dewhurst case — one driver making such a change of speed as to mislead the other as to his intention to yield. The evidence as to keeping a proper lookout in the case before us is quite similar to that in Gardner v. Bailey, Tex.Civ.App., 376 S.W.2d 85 (n. r. e.), and what we said there fits the facts here:

“The mere fact that an accident happened is not evidence of failure to keep a proper lookout; but here, there was more than the mere happening. It was a bright, clear day. Appellant intended to turn to the west; appellee’s car was approaching from that direction; it was a moving object; appellant failed to see it; her attention should have been directed in that direction — the direction which she intended to turn— and was, in fact, in the process of doing so when the collision occurred.”

The same statement could he applied to the facts of the case before us by changing the names of the parties. In Gardner v. Bailey we also pointed out the holding of our Supreme Court that it is the duty of a driver about to enter a favored street not only to look, but to observe in a careful and intelligent manner the traffic and general situation at and in the vicinity of the intersection, including the speed and proximity of vehicles approaching from either direction. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. In that case it was held that the facts and circumstances, including testimony that the person, after stopping, entered the intersection and drove forward slowly, steadily and directly into the path of the other automobile, supported the jury’s findings that the collision was proximately caused by the failure to keep a proper lookout. Similar facts were before the jury in the case before us, and such facts are similar in several material respects to those in the case of Traywick v. Goodrich, 364 S.W.2d 190 (S.Ct., 1963), in which the court said:

“The findings can be reconciled on the basis that Mrs. Ethridge was not negligent in failing to keep a proper lookout while stopped and before attempting to enter the intersection, but that she was guilty of negligence in failing to keep a lookout thereafter. The obligation rests upon the automobile driver not only to" keep a proper lookout while stopped and before starting to cross, but at all times thereafter until the crossing has been negotiated in safety. Certainly one is negligent who looks both ways while stopped before entering the intersection and then proceeds blindly ahead.”

While we do not characterize the actions of Mr. Hale as being that he moved “blindly” ahead, we are of the opinion that the evidence before the jury was such that it was not in error in finding that he failed to keep such a lookout as a person of ordinary care would have kept under the same or similar circumstances, and that such failure was a proximate cause of the collision.

Appellant’s assignments of error are overruled and the judgment of the trial court is affirmed.