author: NORTHCUTT, Justice.

text:
    George MASSO, Appellant, v. W. W. STANSBURY, Appellee.
    No. 7567.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 31, 1966.
    Rehearing Denied March 7, 1966.

      Witherspoon, Aikin, Thomas & Langley, Hereford, for appellant.
    Cowsert & Bybee, Hereford, for appellee.
   NORTHCUTT, Justice.

Appellee, W. W. Stansbury, instituted suit on behalf of his wife, Willie Bell Stansbury, as plaintiff against George Masso, who was the defendant in the trial court, and appellant herein, for damages allegedly suffered by his wife incurred in a fall from a step ladder on appellant’s premises while she was employed by appellant. The appellant was a non-subscriber under the Texas Workmen’s Compensation Act and the case was tried before a jury. Special issues were submitted on the issues of appellant’s negligence to the jury over the objections of appellant. The jury verdict was in favor of the appellee. The appellant filed his motion for a new trial alleging that the trial court had erred in submitting certain issues over appellant’s objections'and also set forth other errors that appellant contended the trial court had committed and also certain misconduct on the part of the jury. The appellant’s motion was overruled and from that order appellant perfected this appeal.

Appellant’s first five points of error concern the alleged errors in submitting Special Issue 3 and the charge in connection therewith. Special Issue 3 was as follows: “Do you find from a preponderance of the evidence that on the occasion in question the defendant failed to provide plaintiff’s wife, Willie Bell Stansbury, with a reasonably safe place in which to work?” As part of the charge in connection with said special issue the court gave the following: “You are further instructed that a safe ladder furnished by defendant to plaintiff’s wife for use by plaintiff’s wife in her work is ‘place in which to work’ within the meaning of the foregoing instruction.”

It being the contention of appellant the court erred in submitting the issue and the special instruction in connection therewith in that the same was not raised by the pleadings nor supported by the evidence; that the same was not an ultimate issue of fact under the record of the evidence; that the special instructions in connection therewith amounted to a general charge; that said special instruction in connection therewith erroneously stated the law and amounted to a comment on the evidence and that the specific acts of negligence as alleged in the pleadings should have been submitted as an issue rather than the general charge. In appellant’s objections to the court’s charge and also in his motion for new trial he urged that the said Issue 3 was duplicitous, multifarious and urged several other objections to the submission of the issue.

In the case of Kennedy v. Wheeler, Tex.Civ.App., 268 S.W. 516 (writ dismissed) the trial court submitted the following issue: “Under the facts and circumstances of this case, did defendant furnish plaintiff reasonably safe machinery with which to operate the Butterfly?” The court there held it was error to submit the case on that issue but should have submitted separately and distinctly the issues raised by the pleadings and proof. There is no evidence that the ladder here in question furnished was in any manner defective. Mrs. Stansbury testified that the ladder was so constructed that if properly set up it would lock and was safe. None of the alleged acts constituting the place where Mrs. Stansbury was working as being an unsafe place to work were submitted to the jury. The way the issue was asked it assumed that all of the allegations as pleaded constituting it an unsafe place to work were true. The issue didn’t limit the jury to any particular act or condition making it an unsafe place to work. We think that Issue 3 in the manner it was submitted was improper in that it did not limit the jury to any particular items pleaded making the storeroom an unsafe place to work. Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651; S. H. Kress & Co. v. Jennings, Tex.Civ.App., 64 S.W.2d 1074 (writ dismissed) ; Fort Worth & D. C. Ry. Co. v. Morrow, Tex.Civ.App., 235 S.W. 664 (writ ref.) ; Housing Authority of City of Dallas v. Hubbell, Tex.Civ.App., 325 S.W.2d 880 (N.R.E.)

We think the objections made by the defendant to Special Issue 3 in the court’s charge and also in his motion for new trial were sufficient to call the court’s attention to the defects in his special issue. Schoenberg v. Forrest, Tex.Civ.App. 228 S.W.2d 556 (N.R.E.). We think the court erred in asking if defendant failed to provide the plaintiff with reasonably safe place in which to work instead of asking about the specific acts of negligence as alleged.

Appellant presents several points of error to the court’s submission of Special Issues 6 and 7. Special Issue 6 is as follows: "Do you find from a preponderance of the evidence that at the time of and on the occasion in question the defendant did not furnish plaintiff’s wife, Willie Bell Stans-bury, with an assistant?” Then Issue 7 asks if such failure to furnish an assistant was negligence. In connection with Issue 7 the court gave the following charge: “You are instructed that an employer has a duty to use ordinary care to see that there are sufficient employees present at a particular place of work to insure the safety of all engaged in the labor.” Appellant’s points of error as to the submission of Issue 6 contend the issue was not raised by the evidence; that the same was not an ultimate issue of fact under the evidence; that it amounted to a general charge and under the admission of plaintiff’s wife, an assistant was furnished.

Mrs. Stansbury testified there were four of them working in the store the day she was injured and that they worked as sales clerks and put up merchandise and things like that and when she came to work on the day that she was hurt that the defendant told her to put away the layaways and work in the layaway section and to get them straight and in alphabetical order. She further testified that all of the clerks worked in the layaway department and that she had worked in the layaway department lots of times. (Emphasis ours.) All of the clerks took turns in working the layaway department and would move the layaways back there. When Mrs. Stansbur-y went back to work in the layaway department she did not move any of the stuff (Emphasis ours) that was on the floor because that was where they put it when they moved it. She did not ask anyone there to help her nor report the condition to Mr. Masso. Mrs. Stansbury was doing the same character of work that she and all other employees in the store constantly and generally did. We are unable to see any evidence in this case that might call to the attention of the defendant that an assistant was necessary to help Mrs. Stansbury in carrying out her work and think the court erred in submitting Issue 6 and then giving in connection with the Issue 7 the charge given as to negligence would constitute a general charge.

It is stated in Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 at 251 as follows :

“The standard to test the question of negligence vel non is the common experience of mankind, and implies generally the want of that care and diligence which ordinarily prudent men would use to prevent injury under the circumstances of the particular case. Southern Cotton Press & Mfg. Co. v. Bradley, 52 Tex. 587; International & G. N. Ry. Co. v. Gray, 65 Tex. 32.
“The question of the existence of negligence and its degree generally depend upon the facts of each case; and if it consists of an omission to perform a duty devolved upon the person charged with negligence, it must be considered with reference to the character of the business in which the person is engaged. San Antonio St. Ry. Co. v. Caillonette, 79 Tex. 341, 15 S.W. 390.
“Negligence rests primarily upon two elements: (a) reason to anticipate injury, and (b) failure to perform the duty arising on account of that anticipation. Collins v. Pecos & Northern Texas Ry. Co., 110 Tex. 577, 212 S.W. 477, 222 S.W. 156; Johnson v. Wichita Valley R. R. Co., Tex.Civ. App., 104 S.W.2d 128.
“Although injury may result from a person’s act or omission, yet, if the actor could not have reasonably foreseen the resultant injury, or injuries, similar in character, he is not to be held responsible therefor. 30 Tex.Jur. p. 663, and authorities there cited; Texas & Pacific Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Union Stock Yards v. Peeler, Tex.Com.App., 37 S.W.2d 126.
“Measured by the above rules of law, we are convinced that the facts of this record fail, as a matter of law, to convict A. & P. of actionable negligence. Evans was a strong, robust young man. He was merely required to perform work that he had been doing for this same employer for several months before this occasion. He was doing the same character of work that other employees in other grocery stores constantly and generally did. He was doing the same character of work that he constantly and generally did in other grocery stores where he had been employed prior to his employment by A. & P. Certainly such a record cannot support a finding of actionable negligence. Evans cannot complain if A. & P. merely required him to do the usual and customary work required of persons in his line of employment, or, stated in another way, required by the character of the business in which he was employed. Finally, we think that the facts of this record fail, as a matter of law, to show that A. & P. ought to have foreseen that Evans would be injured by doing the character of work required of him in this instance.”

See also Sears, Roebuck & Company v. Talley, 5 Cir., 239 F.2d 82.

We think and so hold the court under this record erred in giving Special Issues 6 and 7 with the charge therewith.

Since we are of the opinion this case must be reversed as hereinabove set out, we will not discuss other matters here involved as they may not arise in another trial.

Judgment of the trial court is reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leland F. THOMPSON et al., Appellants, v. W. Ford BARNES et al., Appellees.
    No. 4024.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 21, 1966.
    Rehearing Denied Feb. 18, 1966.

      Yates & Yates, Jack M. Yates, Hooper & Perry, Abilene, for appellants.
    Woodward & Johnson, Halbert Woodward, Coleman, for appellees.
   PER CURIAM.

This is an election contest case. Leland F. Thompson and other residents of the City of Santa Anna, all owners of property duly rendered for taxation in the city and qualified voters in a bond election therein, brought this suit against W. Ford Barnes, Mayor of the City and the City Aldermen, contesting an election held on February 26, 1965. The purpose of the election was to determine whether the City should issue bonds in the sum of $64,000.00 for water system purposes and $200,000.00 for sewer system purposes. The election was favorable for the issuance of the water system bonds by a majority of six votes and for the sewer system bonds by a majority of nine votes. Contestants alleged numerous irregularities and illegalities in the holding of the election which they assert were sufficient to vitiate the election or to change the result thereof. Contestants also sought to have the ballot boxes opened for a recount of the ballots. The trial was before the court without a jury and the court after hearing the evidence threw out three votes, held that the election was in all other material ways legal and valid, that there was no fraud in the manner in which the election was conducted, refused to allow the ballot boxes to be opened, and found that both propositions had lawfully carried. Contestants have appealed.

In numerous points appellants contend that the record shows misconduct and irregularities in the election which would render it invalid, or at least, justify a recount. The misconduct and irregularities complained of by appellants include assertions that the election Judge Joe B. Baker did not properly sign his name to the back of all ballots as provided by Article 8.11 of the Election Code, V.A.T.S.; that Mr. B. B. Parker was appointed as a watcher although he was disqualified to so act under Article 3.04 of the Election Code and that Mr. Parker and Mayor, W. Ford Barnes, were guilty of misconduct in the rooms where the ballots were counted and in connection with the holding of the election; that the ballot boxes were not locked or sealed during the course of the balloting in violation of Article 8.02 of the Election Code; that following the close of the election the ballot boxes and the stub boxes containing the stubs were not locked and sealed, and that the ballots, after being counted at the election, were placed in ballot boxes numbers 1 and 2 instead of ballot box number 3 as required by Article 8.19 of the Election Code; and that the election officials were not sworn in as required by Article 8.01 of the Election Code.

The general rule is that statutes regulating the manner of holding an election “are merely directory, and a departure from their provisions will not, ordinarily, invalidate an election, unless such departure or such irregularity have affected or changed the result of the election.” Hill v. Smithville Independent School District, (Tex.Com.App.), 251 S.W. 209, (opinion adopted); Sykes v. Pandora Independent School District, Tex.Civ.App., 14 S.W.2d 124, (writ ref.); Kincannon v. Mills, Tex.Civ.App., 275 S.W. 1083, (writ ref.); Lightner v. McCord, Tex.Civ.App., 151 S.W.2d 362; Tate v. Farmer, Tex.Civ.App., 112 S.W.2d 782; Baker v. Scranton Independent School District, Tex.Civ.App., 287 S.W.2d 210; Minthorn v. Hale, Tex.Civ.App., 372 S.W.2d 752; Sawyer v. Board of Regents of Claredon Junior College, Tex.Civ.App., 393 S.W.2d 391; Mullins v. Powell, Tex.Civ.App., 273 S.W.2d 633. In our opinion the irregularities and omissions complained of involve statutory provisions which are directory. Article 8.21 of the Code provides that: * * * the mere failure of the presiding Judge to sign the ballot shall not make any such ballot illegal.” It is not shown that any of the irregularities complained of affected or changed the result of the election. The court correctly refused to hold the election void or to order a recount of the ballots.

The court at appellants’ request made and filed findings of fact and conclusions of law. Among the findings of fact were, in substance, the following:

I.

That the election judge, Joe B. Baker properly affixed his name, in his own handwriting, to the back of all the ballots used by the voters in such election, with the exception of twelve or eighteen of such ballots; that such twelve to eighteen of said ballots had the name of the election judge, Joe B. Baker, affixed thereto by Lee Hunter and Arthur Hunter, duly appointed election officials, which signature was affixed under the direction of said election judge.

II.

That the voters voting in the election affixed their signatures to the backs of the ballot stub of their respective ballots, which was done at the time each respective voter voted at such election, and the voters who voted by absentee also properly affixed their signatures to the stubs of their absentee ballots.

III.

That the election officials, appointed by the City Council of the City of Santa Anna, Texas, counted and properly tallied each vote that was cast at said election and there were no ballots not counted that were properly cast at said election.

V.

That B. B. Parker voted at said election, but did not have a poll tax qualifying him to vote at same and that he voted “for” each of the propositions.

XI.

That no qualified voter was denied the right to vote at said election.

XII.

That the only persons who knew of the status of the count of the votes prior to the close of the election were the duly constituted and appointed election officials of said election and Mr. W. Ford Barnes, Mayor of the City of Santa Anna, Texas, and Mr. B. B. Parker, and that said parties did not transmit such information to any other person in any manner or fashion, nor was such information used to influence any voter or prospective voter in any manner.

XIII.

That the said W. Ford Barnes and B. B. Parker were in the polling place and in the room where the ballots were being tallied and counted, but that said ballots were officially counted and tallied only by the duly appointed officials of said election and by no other persons.

XIV.

That the ballot boxes, used in said election were not locked, but the stub box was sealed.

XV.

That no person was refused the right by the City of Santa Anna or any of its officials to render either personal or real property before or on the actual day of the election.

XVI.

That the stub box was duly sealed during and after said election, and was empty prior to said election, and that said stub box and the election boxes were, after the election, put in the safe at the City Hall of the City of Santa Anna, Texas, and taken therefrom to the sheriff’s office in Coleman County, Texas, the next day after said election, and no alterations or changes were made on any of said ballots by anyone other than the voter who cast each respective ballot.

XVIII.

That no one was allowed to vote at said election whose name did not appear on the qualified voters list furnished to the election officials other than one Pete Trindad who voted “against” both of said propositions and he had not at such time rendered his property for taxation to the City of Santa Anna, Texas.

XIX.

That each official of the election was sworn with the proper oath before the commencement of said election.

XX.

That prior to the opening of the polls on the election day, each ballot box and stub box was examined by the election officials and found to be empty.

XXI.

That no person voted at such election because of any information or knowledge received on election day as to the status of the count of the ballots cast, nor did any person vote “for” or “against” the propositions at said election because of the conduct of the said W. Ford Barnes and B. B. Parker at the election poll, in the room where, the ballots were counted, or any other conduct by said persons in connection with the holding of said election and the counting of the votes thereat.

XXII.

That no votes were counted either “for” or “against” the proposition at said election that were not properly cast by the qualified voters of said election, except the vote of the said B. B. Parker, the vote of the said Olena Latimer and the vote of the said Pete Trindad.

The conclusions of law were in substance as follows:

That by subtracting from the totals of the vote “for” as shown by the official canvass of said election, the votes of B. B. Parker and Olena Latimer and by subtracting from the total of the votes cast “against” the propositions the vote of Pete Trindad, that both propositions carried by a majority of the properly cast votes at such election.

That the votes cast at such election, with the three exceptions noted, were cast in the proper manner by duly qualified voters, and that no vote was cast because of or influenced by fraud or improper conduct of any person.

That there was no fraud or misconduct in the holding of said election nor in the casting or tallying of the ballots therein, and that said election was conducted in a fair manner.

That in the absence of the showing of any fraud or misconduct in the election, and in order to protect secrecy of the ballot, no order should be issued ordering the opening of the ballot boxes and the recounting of the votes cast.

That said election was valid and legally effective and the canvass of the results was correct in declaring that both propositions were affirmatively passed and voted “for” by a majority of the voters at said election.

Appellants attack both the findings of fact and the conclusions of law. The statement of facts comprises more than 300 pages and it would unduly lengthen this opinion to attempt to set out in detail the evidence material to such findings and conclusions, but after a careful examination of the evidence we are of the opinion appellants’ complaints concerning such findings and conclusions are not well taken. We overrule appellants’ points contending that the findings of fact are without support in the evidence and are contrary to the great weight and preponderance of the evidence, and overrule appellants’ points complaining of the court’s conclusions of law.

Appellants also urge points contending that the court erred in refusing to order the opening of the ballot boxes and to examine the ballots therein, including the ballots which had not been counted as being mutilated; erred in concluding that there was no fraud in the holding of the election and that the election was held in a fair manner; that the conclusion of the court that there was no fraud or misconduct in holding the election and that the election was conducted in a fair manner has no support in the evidence and is against the great weight and preponderance of the evidence. These points are overruled.

A District Judge has wide discretion in determining whether the ends of justice require the reopening of a ballot box, and upon appeal the trial court’s decision will not be disturbed unless a material abuse of discretion is clearly shown.

We cannot agree with appellants’ contention that the Court erred in concluding that there was no fraud in holding the election, and that such conclusion is not supported by any evidence and is against the great weight and preponderance of the evidence. The fact that some directory provisions of the Election Code were not followed by the election officials does not, of itself, show fraud. There was no showing that any of the claimed irregularities affected or changed the result of the election. There was no showing that anyone who was a qualified voter was denied the right to vote. The only voters who were shown to be disqualified were found by the court to be disqualified and their votes were subtracted from the totals as shown by the official canvass of the election. The evidence does show that at times unauthorized persons, that is, Mr. Parker, who was not a qualified voter and the Mayor were in the room where the votes were being counted, but the evidence supports the findings of the court that each vote cast was properly tallied and counted; that no vote was counted but once and that the ballots were officially counted and tallied only by duly appointed officials of the election and by no other persons. The evidence further shows that the Mayor and Parker had knowledge of the status of the count during the day, but there was also ample evidence to the effect that no one who voted in the election was influenced for or against the questions to be determined by those who had knowledge of the status of the count during the day. The evidence shows that about 10 of the ballots were determined by the election judge Mr. Baker to be unintelligible and mutilated and were not counted, but the evidence also shows that judgment of Mr. Baker alone was used in interpreting and determining the status of such mutilated or questioned ballots. There was evidence to the effect that after such ballots were determined by Mr. Baker to be mutilated that he showed them to the Mayor and that the Mayor agreed with Mr. Baker’s judgment and determination that the ballots were unintelligible and mutilated. The evidence also shows that the votes were correctly counted and interpreted and that such functions were performed by the election officials. Contrary to appellants’ contention, the evidence supports the findings of fact filed by the trial court and such findings are not against the great weight and preponderance of the evidence. The conclusions of law filed by the trial court are, in our opinion, proper and correct, and have ample support in the evidence. The court did not abuse its discretion in refusing to order the opening of the ballot boxes to examine the ballots therein, including those which were not counted because mutilated. McIver v. Starkey, Tex.Civ.App., 271 S.W.2d 314.

Appellants have presented a total of 44 points. We have considered all of these points and find no reversible error.

The judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    Robert A. SMITH et al., Appellants, v. Hon. William O. BREEDLOVE et al., Appellees.
    No. 4026.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 21, 1966.
    Rehearing Denied Feb. 18, 1966.

      David L. Hooper, Abilene, for appellants.
    Long, Aronson & Coleman, Tom Long, Austin, George A. Day, Brownwood, for appellees.
   GRISSOM, Chief Justice.

Two local option elections were held in Justice of the Peace Precinct No. 4 of Brown County on January 9, 1965, at the courthouse in Brownwood. The Commissioners’ Court declared the results to be that the sale of all alcoholic beverages and the sale of beer were legalized in said Precinct. Smith and others, qualified voters in said precinct, contested the election. Judgment was for the contestees and contestants have appealed.

Appellants’ first two points are that the court erred in refusing to hold the petition for an election to legalize the sale of all alcoholic beverages for off-premise consumption in said Justice Precinct was void because it failed to set forth an area for which a local option election could be called under Article 666-32 of the Penal Code of Texas, and that the order of the Commissioners’ Court of Brown County for such election was fatally defective for the same reason. We agree with appellants’ contention that under our Constitution and Penal Code a local option election may be held only in a county, a justice precinct or an incorporated town or city, and that no other political subdivision or area may hold such an election. Article 666-32; Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549, 551. Specifically, appellants contend that the petition and order for the election to determine whether the sale of all alcoholic beverages for off-premise consumption should be legalized was petitioned for and ordered held only in the portion of said precinct which was located in Brownwood. The petition for an election to legalize the sale of all alcoholic beverages contained the following:

“We, the undersigned qualified voters of JUSTICE OF THE PEACE PRECINCT NO. FOUR, BROWNWOOD, TEXAS — ”

The certificate of the County Clerk of Brown County that he had checked the petition refers to it as a petition for a local option election to legalize the sale of all alcoholic beverages for off-premise consumption only “in Justice Precinct No. 4, Brownwood, Brown County, Texas.” The order of the Commissioners’ Court of Brown County approved the petition for a local option election to legalize the sale of all alcoholic beverages and ordered such an election held on January 9, 1965, “in Justice Precinct Number 4.”

On December 14, 1964, the Commissioners’ Court considered the petition filed with the Clerk requesting that an election be ordered “in Justice of the Peace Precinct No. Four, Brown County, Brownwood, Texas” and ordered such an election held “in Justice of the Peace Precinct No. Four, Brown-wood, Texas” on January 9, 1965. It ordered such an election held at the “Court House, Brownwood, Texas”, and in the area described as the “Justice of the Peace Precinct 4”. It should here be noted that said Justice Precinct has but one voting box and that is in the court house at Brownwood. Notices of local option elections were addressed to the qualified voters of Voting Precinct 2, Justice of the Peace Precinct No. Four, Brownwood, Texas. It is undisputed that voting Precinct 2 and Justice of the Peace Precinct number four are identical. The order of the Commissioners’ Court calling the elections showed they would be held in Justice of the Peace Precinct Four at the Court House in Brownwood, the location of the only voting box in said precinct. The notices of the election were addressed to the qualified voters of Justice of the Peace Precinct Number Four. The testimony shows that the voters in said precinct had notice of said elections in said Justice Precinct. It was shown that in Justice of the Peace Precinct Number 4, sixteen more persons voted in this local option election than voted in the last governor’s election. In November, 1964, the number of voters, in Justice of the Peace Precinct Number Four voting for governor were 805. In this election 821 votes were cast. There is no evidence that any voter was misled or confused by the matters complained of or that any voter was deprived of his vote or did not vote but would have voted but for the irregularities alleged by appellants. There is no evidence that a different result would have been obtained had such irregularities not existed. Able and diligent counsel did not present any evidence that “such a number of legal voters were denied the privilege of voting, as had they been allowed to vote, might have materially changed the result” or that such irregularities existed as rendered “the true result of the election impossible to be arrived at, or very doubtful of ascertaining”, as is apparently required by Article 666-40a of the Texas Penal Code. Said points are overruled.

Appellants’ third point is extremely technical and was waived.

Appellants’ fourth point is that the ballot used in the elections on January 9th in Justice of the Peace Precinct Number 4 in Brown County was illegal and caused the elections to be void because it contained a submission of more than one issue to the voters, at such elections. The ballot did set forth two issues to be decided, that is, (1) whether or not the sale of all alcoholic beverages would be legalized and (2) whether or not the sale of beer would be prohibited. At about the same time one group, including appellants, circulated a petition to prohibit the sale of beer, which had been permitted in said area for several years, while an opposing group circulated a petition to legalize the sale of all alcoholic beverages. The Clerk of Brown County certified both petitions to the Brown County Commissioners’ Court and on December 14, 1964, the Commissioners’ Court of Brown County issued an order calling for a local option election to legalize the sale of all alcoholic beverages and an order calling for an election with reference to the sale of beer in said precinct. In other words, the voters of Justice of the Peace Precinct Number 4 voted at two local option elections and on two local option issues on the same day and they used the same piece of paper to vote at said two elections. Appel-lees contend that the ballot used was valid because two separate elections were held on the same day under two separate petitions and two separate orders and two separate notices of the elections were posted. Since two elections were held on the same day at the same place for the same voters a single piece of paper was used for the ballot. The elections and the matters to be voted upon were separated by lines but the issues were submitted on one piece of paper. Appellees say that the question presented was not whether the Commissioners’ Court erred by submitting two issues on one ballot in one election but whether the court properly submitted the issues in response to two separate petitions, two separate orders at two elections held on the same day in the same Precinct. We agree. Article 666-40, Texas Penal Code, after providing that the Commissioners’ Court, upon petition, “shall” order local option elections for the purpose of determining whether certain alcoholic beverages shall or shall not be sold in the mentioned areas and states the issues to be submitted.

To clear up the confusion that resulted from an election in Palo Pinto County and perhaps, similar elections, the Legislature amended Article 666-32, 666-33, 666-35 and 666-40 to state that in any one election there shall be only one issue per ballot. Article 666-32 now provides “In any election ordered by the Commissioners Court the issue ordered to appear on the ballot shall be the same as that applied for and set out in the petition.” Article 666-33 provides that the “order thus made shall state the issue to be voted upon in such election.” Article 666-35 provides that “said ballot shall have also written or printed thereon the issue appropriate to the election order * * * ”, The case of Fox v. Burgess, 157 Tex. 292, 302 S.W.2d 405, is cited by appellants to support their contention that the election was void because there was a submission of more than one issue on a single ballot. In the Fox case an election was held in a county where the sale of all types of alcoholic beverages were permitted and a majority voted against the sale of all alcoholic beverages. Within three months thereafter another election was held in the same area and the majority voted for the sale of all alcoholic beverages for off premise consumption. The first election was under Section (l) of Article 666-40. The second election was challenged on the ground that Article 666-32 provided that no subsequent election upon the same issue should be held within one year. That was the issue before the Supreme Court. It held that the second election was valid because a different issue was submitted at that election. In the present case two issues were voted on at the same time in two separate elections. We think the statutes do not prohibit this action. There were not two issues submitted in one election. There were two elections held at the same time and two issues submitted. We find nothing in the law that prohibits this procedure.

The evidence does not disclose that any voter was deprived of his vote or that the will of the voters was defeated by any of the irregularities asserted. Each contesting group had equal rights before the Commissioners’ Court. It could not choose between them. The court could not deny the petition of either group. It performed its statutory duty when it ordered two elections in response to two petitions. Each group asked the Commissioners’ Court to call an election in response to its petition. It did that. There being no prohibition thereof, the Commissioners’ Court in response to two petitions, called, by two separate orders, for two elections to be held at the same time and at the same place. We cannot see how the use of different ballots in each election could have been helpful or how such procedure would have avoided a possible conflict, because the voters could have voted one way on one ballot and another way on the second ballot. Under the situation disclosed, we think the Commissioners’ Court did not violate any law but simply used an inexpensive method of holding the elections. Under the Fox case there can be but one election on one issue at a time. But, we find no prohibition of two separate elections on two separate issues at the same time using one ballot.

The judgment is affirmed.


author: PARKER, Justice.

text:
    T. H. G. K. & T. CORPORATION, Appellant, v. Virginia Pitts LIPE et al., Appellees.
    No. 6830A.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 13, 1966.
    Thompson, Hippard, Gibson, Korioth & Tita, Houston, Edgar L. Berlin, Beaumont, for appellant.
    James D. McNicholas, Beaumont, for ap-pellees.
   PARKER, Justice.

This is an appeal from a judgment refusing to issue a temporary injunction on the application of T. H. G. K. & T. Corporation seeking to enjoin the sale of 20.6 acres of land in Montgomery County, Texas, by James D. McNicholas, trustee in deed of trust. The judgment of the trial court was rendered and entered on the 1st day of November A. D., 1965, to which action and ruling of the court said corporation excepted and gave notice of appeal. Appeal bond was duly filed. The appellant, T. H. G. K. & T. Corporation, failed to file a properly authenticated statement of facts within the time allowed for that purpose. Transcript was timely filed.

Under Texas Rules of Civil Procedure Rule 385, this cause may be heard in this court on the bill and answer and such affidavits and evidence as may have been admitted by the jduge of the court below. There is no statement of facts. However, this court has jurisdiction over the appeal though no statement of facts was timely filed. The scope of review is limited so that we cannot consider any error asserted that requires an examination of a statement of facts not before this court. Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600; Dyche v. Simmons, 264 S.W.2d 208 (Tex.Civ.App., err. ref., n. r. e.) ; Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683.

Although no assignments of error are required of appellant, it has presented a sole point of error:

“Defendants Lipe failed to make demand for payment of the September 1965 installment and failed to give notice of their intention to accelerate the note absent payment. These are prerequisites to acceleration demanded by equity despite any waiver of demand or notice to be found in the note or deed of trust.”

From the pleadings, it appears: On July 28, 1964, Virginia Pitts Lipe and husband, Kenneth L. Lipe, conveyed a 20.6 acre tract of land in Montgomery County, Texas, to T H. G. K. & T. Corporation, retaining a vendor’s lien to secure the payment of an installment vendor’s lien note in the principal amount of $19,550.00 given in part payment for the land. On the same day T. H. G. K. & T. Corporation executed a deed of trust conveying the same property to James D. McNicholas to secure the payment of said note, the Lipes being named as “Beneficiary”. The note, deed and deed of trust having been executed at the same time, will be construed as one contract. San Antonio Real Estate, Bldg. & Loan Ass’n v. Stewart, 94 Tex. 441, 61 S.W. 386. Omitting the description of the 20.6 acres of land, the note is as follows:

“$19,550.00 , Texas,
July 28, A.D. 1964.
For Value Received, I, we, or either of us, the undersigned, promise to pay to VIRGINIA PITTS LIPE and husband, KENNETH L. LIPE, the sum of NINETEEN THOUSAND, FIVE HUNDRED FIFTY AND NO/100 ($19,550.00) DOLLARS with interest from date at the rate of six and one-half (6)4%) per cent per annum, both principal and interest payable at First Security National Bank of Beaumont, Texas.
The principal of this note is payable in equal monthly installments of $170.-32 each, including interest at the rate of six and one-half (6)4%) per cent per annum, the first installment being due and payable on or before the 1st day of September, A.D. 1964, and one installment to become due and payable on or before the 1st day of each succeeding month thereafter until the whole principal sum is paid, together with all interest due thereon, and all past due principal and interest shall bear interest from maturity at the rate of ten per cent per annum.
This note is given in part payment for a certain lot or parcel of land situated in Montgomery County, Texas, described as follows, to-wit:
(here is description of the 20.6 acres of land which is omitted herein)
this day conveyed to the undersigned, by VIRGINIA PITTS LIPE and husband, KENNETH L. LIPE, and to secure the payment of same, according to the tenor hereof, a Vendor’s Lien is retained in said conveyance, and is hereby acknowledged, and as further security for the payment hereof, a Deed of Trust is this day given to JAMES D. McNICHOLAS, Trustee, for the benefit of the holder hereof.
This note is this day given by the undersigned as part of the purchase price for said above mentioned property, and it is understood and agreed that failure to pay this note, or any installment as above promised or any interest hereon, when due, shall, at the election of the holder of said note, mature said note, and it shall at once become due and payable, and the Vend- or’s Lien or the Deed of Trust Lien herein mentioned, either or both, shall become subject to foreclosure proceedings, as the holder may elect.
And it is hereby specially agreed that if this note is placed in the hands of an attorney for collection, or if collected by suit or through the Probate Court, the undersigned agree to pay ten per cent additional on the principal and interest then due hereon as attorney’s fees.
T.H.G.K. & T. CORPORATION
By /s/ L. M. Thompson L. M. THOMPSON, President
ATTEST:
/s/ Tony Konsoth
Secretary”

In the deed of trust T. H. G. K. & T. Corporation did covenant and agree: (1) To make prompt payment of the aforementioned indebtedness, both principal and interest, as the same shall become due and payable (referring to the $19,550.00 installment note); (2) to pay as the same shall become due and payable, all taxes and special assessments, now chargeable to or assessed against or hereafter chargeable to or assessed against the above described property. The deed of trust further provides :

“But if the grantors make default in the punctual payment of said indebtedness or any part thereof, principal or interest, as the same shall become due and payable, or if the grantors breach any of the covenants herein contained to be performed by grantors, then and in any of such events the entire indebtedness hereby secured with all interest and all other sums hereby secured may, at the option of the beneficiary, or other holder hereof be immediately matured and become due and payable without demand or notice of any character, and it shall thereupon, or at any time thereafter, be the duty of the trustee, and of his successor or substitute * * Followed up by the usual provisions as to the duty of the trustee.

From the pleadings it appears: (1) the note was payable at a specific place, namely: at the office of the First Security National Bank at Beaumont, Texas. (2) Presentment for payment was dispensed with by the express provisions of Art. 5937, §§ 82 and 70, R.C.S.T. (3) An installment on the $19,-550.00 note was due and payable on September 1, 1965, in the amount of $170.32 which admittedly was not paid when due and payable. (4) On September 15th such installment had not been paid and taxes on the property were delinquent.

The judgment entered in the trial court below on November 1, 1965, recites:

“ * * * and all parties having announced ready for trial and following which the Court, sitting without the intervention of a Jury proceeded to hear the Pleadings, evidence and arguments, and at the conclusion thereof was of the opinion that the evidence and the law was insufficient to warrant the granting of said Application of the Plaintiffs herein and that same should be and it was in all things refused.
“It is therefore ORDERED, ADJUDGED and DECREED by the Court that Plaintiff’s Application for Temporary Injunction seeking to enjoin the sale of 20.6 acres of land out of the J. M. Evereitt Survey, Abstract Number 179, Montgomery County, Texas, and being more particularly described in Plaintiff’s Application should be and the same is in all things refused.”

The judgment of the trial court was regular in all respects. Under the pleadings it had the power to render such a judgment for the appellees alleged that on September 15, 1965, the installment payment of $170.32 had not been paid at which time taxes on the mortgaged property were also delinquent, whereupon the payees of the note and beneficiaries of the deed of trust elected to accelerate the maturity of all installments on the note and the entire indebtedness owed to them by appellant, giving notice to appellant of their intention so to do, made formal demand of appellant for payment of the entire indebtedness and requested the trustee in the deed of trust to sell the land at trustee’s sale.

There being no statement of facts, it will be presumed that the evidence adduced in the trial court supports the judgment of the trial court. There is no fundamental error.

Judgment of the trial court affirmed.


text:
    T. H. G. K. & T. CORPORATION, Relator, v. Virginia Pitts LIPE et al., Respondents.
    No. 6830.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 13, 1966.
    Thompson, Hippard, Gibson, Korioth & Tita, Houston, Edgar L. Berlin, Beaumont, for relator.
    James D. McNicholas, Beaumont, for respondents.
   PARKER, Justice.

On this 13th day of January A.D., 1966, this court in Tex.Civ.App., 399 S.W.2d 408, involving the same parties as in this case, affirmed the judgment of the District Court of Montgomery County, Texas, refusing plaintiff’s application for temporary injunction seeking to enjoin the sale of 20.6 acres of land in Montgomery County, Texas. The temporary injunction of this court dated December 2, 1965, restraining and enjoining the Respondents Virginia Pitts Lipe and husband, Kenneth L. Lipe, and James D. McNicholas from proceeding with any trustee sale of the property above mentioned by virtue of the deed of trust mentioned in said order of this court of December 2, 1965, is hereby dissolved.


author: NYE, Justice.

text:
    Ruby Hermon BUTLER, Independent Executrix, et al., Appellants, v. Jerry SADLER, Commissioner of the General Land Office, et al., Appellees.
    No. 86.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 27, 1966.
    Rehearing Denied Feb. 24, 1966.

      Graves, Dougherty, Gee & Hearon by Robert J. Hearon, Jr., Austin, for appellants.
    Waggoner Carr, Atty. Gen., by J. Milton Richardson, Austin, W. G. Winters, Jr., Houston, for appellees.
   NYE, Justice.

This is a vacancy suit. Appellants filed suit in the district court of Cameron County, Texas, alleging that there is in existence in that county vacant, unsurveyed public school lands as described in their pleadings. The proceeding in the district court filed by the appellants was an appeal from the order of the Texas Land Commissioner who had determined that “no vacancy” could possibly exist on the lands in question. In appellants’ suit they allege that they are entitled to establish the existence of vacant unsurveyed public school lands and their preferential right to purchase or lease such lands by virtue of Article 5421c, Vernon’s Ann.Civ.St.

The appellees, being the principal defendants in the suit in the trial court, filed motions for summary judgment supported by affidavits, exhibits and depositions contending that as a matter of law no vacancy could exist in the area covered by the appellants’ application. Appellants filed their motion for summary judgment, along with controverting affidavits and other exhibits. The trial court granted summary judgment in favor of the defendants and denied the motion for summary judgment filed by the plaintiffs. The plaintiffs have perfected their appeal to this Court.

The application and petition of the appellants allege that there exists as a possibility vacant unsurveyed public school land which they describe as mud flats. They contend that this is new land, formed between the shoreline of Laguna Madre as it existed in 1829, and the shoreline as it exists today along the east side of the Buena Vista Grant. The description of the land in their petition follows:

“ * * * Said lands are described as situated in Cameron County, Texas, about 15 miles northeast from Brownsville, the County Seat, and bounded as follows, to-wit:
‘One the West by the Potrero de Buena Vista Grant 1-465, originally granted to Manuel de la Garza Sosa by the State of Tamaulipas, Republic of Mexico; on the South and East by the Potrero Santa de Isabel grant and Laguna Madre; on the North by Laguna Madre, and on the East by Laguna Madre, it being intended by said application to include all of the unsurveyed public school land lying between said Potrero de Buena Vista Grant and Laguna Madre.’ ”

The Potrero de Buena Vista Grant and the Potrero Santa de Isabel Grant, are a part of the mainland of Texas. The east side of the grants front on the Laguna Madre. These two grants extend generally along the west side of the Laguna Madre from the Arroyo Colorado on the north to a point near, but some distance from the Rio Grande River on the south. The Laguna Madre is a continuous body of water running from Corpus Christi Bay on the north to the Brazos-Santiago Pass on the south and connects with the Gulf of Mexico on both ends. On the east side of the Laguna Madre is a long strip of land called Padre Island which runs almost the entire length of the coast between Corpus Christi and Brownsville. This island separates the Gulf of Mexico on the east and the Laguna Madre on the west.

Quoting directly from the apppellants’ brief they say:

“Let us go straight to the heart of the matter. Our case depends upon acceptance of the thesis that submerged lands are in a special category, not subject to the vacancy act (Art. 5421c) and entirely separate and distinct from lands which are * * *, we assert that areas which at some earlier time might have been submerged become subject to purchase or lease under the vacancy statute if they later lose their character as submerged lands * * * ”

Appellants contend in effect that there is a new category of land which has come into existence in the area bounded by their description. Whereas, formerly all of the land was either titled land or submerged land belonging to the State, there is now an intervening area of unsubmerged land subject to the provisions of the vacancy statute. Appellants argue that this land is not listed in any way in the records of the General Land Office as fast land.

The appellants likened the land which they contend exists as unsubmerged land as those lands described in the case of Luttes v. State, 159 Tex. 500, 324 S.W.2d 167, Sup.Ct. 1958. They contend that some of these mud flats in this area may be accretion to the upland and hence property of the upland owners and some as accretion to the islands which are not subject to purchase, but they contend that there is a possibility that there is land which can neither be shown as accretion to the mainland or accretion to the islands in the lagoon, that is unsubmerged and unsurveyed and therefore subject to purchase by them as discoverers.

It is important here to review briefly the legal history of the State’s ownership of waters and submerged lands within the tidewater limits of the Gulf of Mexico. These submerged lands have always been treated in a special category since the earliest days of the Republic. State v. Delesdenier, 7 Tex. 76 (1851). On December 19, 1836, it was enacted by the Senate and the House of Representatives of the Republic of Texas that from and after the passage of that Act the civil and political jurisdiction of the Republic was declared to extend to the following boundaries, to-wit: “Beginning at the mouth of the Sabine River, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande, * * * ” Gammel’s Laws of Texas, Vol. 1, p. 1193. In the resolution of the Congress of the United States pertaining to the Annexation of the Republic of Texas as a State into the Federal Union, of date March 1, 1845, 5 U.S. Statutes at Large 797, it was provided that the Republic retain for the State “all the vacant and unappropriated lands lying within its limits.” The Congress of the Republic of Texas thereafter passed a joint resolution accepting the terms of annexation proposed by the United States. (2 Gammel’s Laws 1200) Such action of the Congress of the Republic of Texas was ratified by popular vote of the people of Texas, and Texas was admitted to the Union by virtue of a resolution of Congress passed December 29, 1845, under which the State of Texas retained all of its public lands. 9 U.S. Statutes at Large 108.

The First Legislature of the State of Texas declared: “That the exclusive right to the jurisdiction over the soil included in the limits of the late Republic of Texas was acquired by the valor of the people thereof, aqd was by them vested in the government of the said Republic, that such exclusive right is now vested in and belongs to the State, * * * ” (Acts First Legislature 1846, p. 155) Under the Treaty of Guadalupe Hidalgo the boundary line between the Republic of Mexico and the United States was defined as commencing in the Gulf of Mexico three leagues from land, opposite the mouth of the Rio Grande. “[I]t is clear that the Republic of Texas and the State of Texas have from the earliest days asserted title to the ownership of that portion of the Gulf of Mexico, and the soil at the bottom thereof, out to the limit of three (3) marine leagues from shore.” Preamble to the Act of 1941, 47th Legislature, p. 454, Ch. 286.

There have been numerous pronouncements made by the Legislature of this State concerning the public lands in the arms of the Gulf, the bays and tidelands. Art. 4026, V.A.T.S. (Acts 1925, 39 Legislature, p. 438, Ch. 178, § 1, Art. 7) which was a re-enactment of a prior statute which provides that “ * * * All of the public rivers, bayous, lagoons, creeks, lakes, bays and inlets in this State, and all that part of the Gulf of Mexico within the jurisdiction of this State, together with their beds and bottoms, and all the products thereof, shall continue and remain the property of the State of Texas * * Art. 7467 V.A.T.S. provides in part: “The waters of the ordinary flow and underflow and tides of every flowing river or natural stream, of all lakes, bays or arms of the Gulf of Mexico, and the storm, flood or rain waters of every river or natural stream, canyon, ravine, depression or watershed, within the State of Texas, are hereby declared to be the property of the State * * Acts 1921, p. 233, sec. 2.

The State has consistently claimed title to the waters and submerged lands of the Gulf of Mexico, its arms, bays and tidewaters within the boundaries of this State. The courts of this State have zealously guarded and enforced the rights of this State to the public lands and have consistently held that the waters of the bays, inlets and arms of the Gulf of Mexico and the lands and bottoms underlining lakes, and bays, and the islands, reefs, shoals, marshes, and other areas along the Gulf of Mexico within the tidewater limits are the property of the State and are held by it in trust for the benefit of all of its inhabitants. Landry v. Robison, 110 Tex. 295, 219 S.W. 819; Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441; City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028; Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410; Luttes v. State, 159 Tex. 500, 324 S.W.2d 167; Rosborough v. Picton, 12 Tex.Civ.App. 113, 34 S.W. 791. See 60 Tex.Jur.2d p. 588 and 599 and 279.

In a case decided by the Supreme Court of Texas in 1932, the Court said that, “The rule long has been established in this state that the state is the owner of the soil underlying the navigable waters, such as navigable streams, as defined by statute, lakes, bays, inlets and other areas within tidewater limits within its borders.” State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1069. (Emphasis supplied)

The Constitution of the State of Texas, Article VII, Section 4, Vernon’s Ann.St., provided that “The lands herein set apart to the Public Free School Fund, shall be sold under such regulations, at such times, and on such terms as may be prescribed by law; * * See also Article VII, Section 12. In the Constitution of 1845 and 1861, school lands could not be sold but only leased. (Article X, Section 3, Constitution 1845; Constitution 1861). However, after the Civil War, it was realized that in order to stabilize the income from the permanent school fund, it was necessary to sell some of these lands. Under the Constitution of 1866 it was provided that the Legislature should from time to time provide for the sale of public lands granted to the perpetual public school fund. Article X, Sec. 4, Constitution 1866.

Articles 3498a and 3498j of the Revised Statutes of 1895 declared that public school, university, asylum and public lands shall be open to purchase by any person having the right to purchase such lands. However, the Supreme Court held that such articles did not give anyone the right to purchase lands under the water at ordinary high tide and uncovered at low tide. It was not contemplated that submerged lands which were the shallow waters of the San Jacinto Bay, an arm of the Galveston Bay, and hence a portion of the Gulf of Mexico were subject to purchase. The court went on to say that the Legislature by the use of the term “public lands”, did not contemplate the soil lying below the line of ordinary high tide “[i]n contemplation of law it was not land, but water.” De Merit v. Robison, Land Commissioner, 102 Tex. 358, 116 S.W. 796, (1909).

Article 5323, V.A.T.S., (derived from Acts of 1919, 36th Legislature, R.S., p. 315, Ch. 163) provided for the sale of unsurvey-ed school lands to an applicant who could establish the existence of a vacancy. Camp v. Gulf Production Co., 122 Tex. 383, 61 S.W.2d 773, Sup.Ct. of Tex. 1933. The Supreme Court later that same year in the case of Cockrell v. Work, 122 Tex. 406, 61 S.W.2d 787, Sup.Ct.1933, stated that the Camp v. Gulf Production Co. case, supra, must be construed as holding that Article 5323, enacted in 1919, is the only Act by virtue of which the citizen acting as the plaintiff could maintain a suit to determine whether a certain territory was a part of the unappropriated public domain of the State, belonging to the school fund and under such Act was authorized to determine whether a vacancy existed between certain patent lands. An examination of the original Act shows that one desiring to purchase any portion of the unsurveyed school lands believed to be public land would have to follow a well defined procedure. Camp v. Gulf Production Co., supra; Cockrell v. Work, supra. This Act was repealed by the Acts of 1931, 42nd Legislature, p. 452, Ch. 271, Sec. 13 now contained in Article 5421c, V.A.T.S. Also repealed were articles 5338 and 5374, V.A.T.S. relating to grouping of permits and the conditions on which permits for the development of oil and gas might be issued.

The appellants in effect describe the land they seek to establish as vacant unsurveyed public school lands formerly submerged and now above the line of mean higher high tide. This land admittedly at one time was the bottom of the Laguna Madre and now is above the line of mean higher high tide. See Luttes v. State, supra. The landowners of the original littoral Buena Vista Grant, originally owned their land to the shoreline. The water and the bottoms of the lagoon which adjoined the littoral owners were originally public lands owned by the State of Texas. The land in question, if not owned by the littoral landowners of the Buena Vista Grant, still belongs to the State of Texas and would be considered as tidelands subject to overflow during floodtide. See Luttes v. State, supra.

These lands in the bays, whether they be islands, marshes, reefs or land within the tidewater limits, have never been subject to sale or lease as vacant and unsurveyed land. Before the enactment of the present Vacancy Statute originally in 1931, lands such as these were subject to lease by the Commissioner for oil and natural gas under Article 5353, V.A.T.S., (Acts of 1919). The Legislature provided that the following described lands would be subject to lease for . oil and natural gas, to-wit: “All islands, salt water lakes, bays, inlets, marshes and reefs owned by the State within tide water limits, and that portion of the Gulf of Mexico within the jurisdiction of Texas, and unsold unsurveyed public free school lands * * Art. 5353, Acts 1919, 36th Legislature 2nd Call Session p. 51; see also 1917 Acts, 35th Legislature R.S., p. 158, Ch. 83, Sec. 1. The article under consideration, being 5421c, excluded from its control and sale “river beds, and channels, and islands, lakes and bays, and other areas within tide water limits.” See Sec. 1; Art. 5421c. This was logical and necessary because the Legislature had heretofore provided for the leasing of such lands in Art. 5353, V.A.T.S. Although 5421c provided for all lands heretofore set apart to the public free school fund under the Constitution and the laws of Texas to be subject to control and sale under Art. 5421c, lands within the tidewater limits of the borders of the State of Texas were not a part of the public school fund at the time of the enactment of this article, and did not become a part of the public school fund until 1939. (Acts 1939, 46th Legislature, p. 465)

In 1899 the Legislature empowered the Governor and the Commissioner of the General Land Office to tabulate the condition of the account between the State of Texas and the permanent school fund, to ascertain the amount of public domain in the State of Texas at the time of the adoption of the Constitution in 1876. As a result of the Act of March 2, 1899, the Commissioner of the General Land Office prepared a report based upon the findings of a public commission duly appointed under the Act, which showed among other things, that the permanent free school fund had not received its full share of the public domain. That, in effect the school fund was entitled to 4,473,535 acres more than had been credited to it; that the remaining un-surveyed unappropriated public domain consisted of 3,275,628 acres within the Texas & Pacific Railway Reservation and 1,168,567 acres of public domain in the State of Texas exclusive of lakes, bays and islands on the Gulf of Mexico, amounting to an aggregate of 4,444,195 acres which is 29,340.27 less than is due by the State to the permanent school fund, after setting apart and appropriating to said 4,444,195 acres of un-surveyed and unappropriated land.

In the first called Session of the twenty-sixth Legislature, the Governor recommended the passage of a bill appropriating 4,444,195 acres of the remaining public domain being all of the acres referred to, exclusive of lakes, bays and islands on the Gulf of Mexico, making up the difference of 29,340.27 acres due the public free school fund by appropriating to such public free school fund sufficient money out of the general reserve fund. Specifically the Governor stated in reference to the 1,722,880 acres in the lakes and bays that: “In making up the account, my own judgment is that the area in lakes and bays — 1,722,880 acres — should be discarded altogether, and be permitted to remain as now for future disposition.” See Senate Journal, First Call Session, 26th Legislature, p. 14, et seq, January 28, 1900. A bill was introduced in accordance with the Governor’s recommendations and ultimately came out of the committee for public lands and the General Land Office as substitute Senate Bill No. 2. This Bill was passed by the Senate, amended and passed by the House, amended by a free conference committee and finally approved and passed on February 23, 1900. Senate Journal, First Call Session, 26th Legislature p. 21, January 24, 1900; p. 28, January 29, 1900; p. 36, January 30, 1900; p. 50, February 5, 1900; p. 128, February 21, 1900. The Bill became the Act of February 23, 1900 (11 Laws of Texas, 29) and contains as Section 1 the following:

“Section 1. For the purpose of adjusting and finally settling the controversy between the permanent school fund and the State of Texas, growing out of the division of the public domain, there is hereby set apart and granted to said school fund four million, four hundred and forty-four thousand and one hundred and ninety-five acres or all of the unappropriated public domain remaining in the State of Texas of whatever character, and wheresoever located, including any lands hereafter recovered by the State, except that included in lakes, bays, and islands along the Gulf of Mexico within tide water limits, whether the same be more or less than said four million, four hundred and forty-four thousand, one hundred and ninety-five acres; provided, this act shall not have the effect to transfer to the school fund any of the lakes, bays and islands on the Gulf of Mexico within tide water limits whether surveyed or unsurveyed.” (Emphasis supplied)

The emphasis supplied portion of the above quoted section was inserted by amendment upon the floor of the Senate before the first passage of the Bill and continued through as the final passage. This section of the Act of February 23, 1900, was carried into Article 5416 of the Revised Civil Statutes of 1925.

Article 5416, V.A.T.S., clearly excepted from the public school fund the lands included in lakes, bays and islands along the Gulf of Mexico within the tidewater limits thereof. Fitzgerald v. Boyles, 66 S.W.2d 347, (Tex.Civ.App.1931, writ, dism.)

It is indeed clear to us that the Legislature did not intend that such tidewater areas be included under the operation of the Vacancy Act or that such areas be subject to sale or lease as vacant and unsurveyed land under Article 5421c, Section 6, because the Legislature specifically provided otherwise. Not only did the Legislature exclude such tidewater areas from sale to the general public, as set forth above, (5421c, Sec. 1) but it provides for a separate procedure for the leasing of such lands (5421c, Sec. 8). In the Acts of 1931, 42nd Legislature, p. 452, Ch. 271, which repealed Article 5323 and is now Article 5421c, Sec. 8, such Article provided for the leasing of “[a] 11 islands, salt water lakes, bays, inlets, marshes and reefs owned by the State within tidewater limits, and that portion of the Gulf of Mexico within the jurisdiction of Texas.” This Article and section was amended in 1939 under the heading “lands subject to lease” which described the same lands and all unsold public free school lands, both surveyed and unsurveyed. (Acts of 1939, 46th Legislature, p. 465, Sec. 2, p. 473). The Act further provided in Section 5, (now 5421c-3, Sec. 1) that “[a]ll lands set apart for the permanent free school fund and the several asylum funds by the Constitution and laws of this State and the mineral estate in river beds and channels, and the mineral estate in all areas within tidewater limits including islands, lakes, bays, and the bed of the sea, belonging to the State of Texas, are subject to control and disposition in accordance with the provisions of this Section and other pertinent provisions of this Act and other laws not in conflict herewith; * * *.” Section 2 of Art. 5421c-3 provided that “[t]he mineral estate in river beds and channels and all areas within tidewater limits, including islands, lakes, and bays, and the bed of the sea, belonging to the State of Texas, are hereby set apart and dedicated to the permanent school fund.”

While it is now true that both the mineral estate, Article 5421c-3, Section 2, V.A.T.S., and the surface estate, Article 5415a, Section 3, V.A.T.S., and islands, bays and lakes within the tidewater limits have now been dedicated to the public free school fund, it is also true that such lands are still not subject to sale or lease as vacant and unsur-veyed lands under Article 5421c, Section 6. The Legislature in 1941 reasserted the complete ownership in the State of Texas of waters of the Gulf of Mexico, the arms of the Gulf, the beds and shores. (Acts of 1941, 47th Legislature, p. 454, Ch. 286, Art. 5415a, Section 3.) As late as 1961, the 57th Legislature in Article 5415e, made this declaration of the policy and purposes concerning state-owned submerged lands and islands :

“Section 1. The state-owned submerged lands and islands in the Texas Gulf Coast Area and the natural resources with which they are so richly endowed, constitute an important and valuable property right belonging to the Public Free School Fund and to all of the people of Texas. It is the declared policy of the state that such lands shall be so managed and used as to insure the conservation of such lands and resources and their development and utilization in the public interest. The value of such lands as public property for production and marketing of oil and gas and other minerals and for fishing, hunting, recreation, health and other uses in which the public at large may participate and enjoy, shall be considered as paramount, and private development shall be approved only if it does not significantly impair these values. Further, it is the policy of this state not to sell any of its submerged lands or islands unless specifically au-thorised to do so by the Legislature.” (Emphasis supplied)

We take special note at this point in our decision, to this declaration of the policy of our legislative branch of government concerning state-owned lands. Article 5421c, Sec. 6 does not specifically authorize the sale or lease of the lands rising out of or a part of the arms of the bays and seas within the tidewater limits of the State of Texas to a “discoverer” under the Vacancy Act. Not only is there a lesser amount of royalty to be realized by the State for the sale of public school lands under the Vacancy Act, than if such lands were leased in accordance with the other existing laws, but it has always been the declared policy of the Legislature and the courts of this State to hold such public lands in trust for the benefit of all of the people of this State. Without clear language authorizing the sale or leasing of possible vacant lands in the tidewater limits of this State, we do not believe that the Legislature intended that such lands be awarded to anyone under the act in question.

Continuing on with other pertinent portions of this same Act (5415e, Section 1) the Legislature declared: “The purpose of this Act is to implement the foregoing policies by delegating to a Submerged Lands Advisory Committee and to the School Land Board, which shall be assisted by the Coastal Areas Management Division within the General Land Office, certain responsibilities and duties with respect to the management, control and use of the surface estate in state-owned submerged lands and islands to the end that:

(a) The natural resources of salt water lakes, bays, inlets or marshes within the tidewater limits shall be conserved; * * *
(c) Unauthorized encroachment upon and use of the surmerged lands and islands owned by the state shall be prevented; * *
“Sec. 2. As used in this Act, unless the context clearly requires otherwise: * * *
(d) ‘Island’ means any body of land completely surrounded by water located in a salt water lake, bay, inlet or other inland body of water within the tidewater limits of this state, or any portion of such body of land, and shall include man-made islands resulting from dredging or other operations in such waters.
(e)‘Submerged lands’ means any land extending from the shore line marking the boundary between the lands of the state and littoral owners, to the low water mark on any salt water lake, bay, inlet or other inland water within tidewater limits, and any land lying beneath such bodies of water but shall not include beaches on the open Gulf of Mexico, or land within the jurisdiction of the State of Texas which lies beneath the open waters of the Gulf of Mexico. * * ”
“Sec. 7. (a) Subject to the limitations contained * * *, the Board may lease the surface estate in state-owned islands and submerged lands, as defined in Section 2, upon such terms and conditions and for such lease rentals as it sees fit, provided the Board determines such lease is not contrary to the public interest. * * * ”
“(d) All mineral rights, together with the right to explore for, produce and market same shall be reserved to the state, and such rights shall be the dominant estate in such lands. * * * ”
“(g) No state-owned submerged land or islands as herein defined shall be leased except for industrial purposes including exploration and development of oil and gas under prior existing laws. Said industrial purposes shall not be construed to mean for the purposes of industrial waste disposal. * * * ” Acts 1961, 57 Legislature, p. 841, Ch. 377.

We believe that the decisions of the Supreme Court of Texas in Luttes v. State, 159 Tex. 500, 324 S.W.2d 167 (1958), and the Court of Civil Appeals 289 S.W.2d 357, Tex.Civ.App. (1956), are of controlling effect. In the Luttes case, supra, title to a specific 4086.61 acre mud flat lying along the east side of the Buena Vista Grant was in issue. This Buena Vista Grant was a littoral grant and its boundary along the Laguna Madre was the line of mean higher high tide. The 4086.61 acres between such Buena Vista Grant and the islands in the Laguna Madre, was declared to be the property of the State of Texas. In effect such land amounted to accretion to the islands in the Laguna. Islands are clearly exempt from the operation of the Vacancy Act. It is clear and the appellants admit that (1) submerged lands, (2) mud flats representing accretion to the upland owners’ property, and (3) mud flats representing accretion to islands, bars, reefs and shoals in the Laguna Madre, are not subject to sale or lease under the Vacancy Act. The question here to decide is whether land which is no longer submerged, and does not fit into any of the three above categories, but has formed out of and as a part of the bed of the sea, becomes land subject to sale or lease as vacant or unsurveyed land under Article 5421c, Section 6. Our Supreme Court said in Luttes v. State, supra, see 324 S.W.2d page 189:

“As before indicated, the factual theory of the petitioners-plaintiff is that the alleged accretions came about by gradual deposits of alluvion brought from the mainland and the Rio Grande by the fresh water of the Resaca de los Cuates and precipitation out upon reaching the waters of the Laguna. No doubt fast land arising from such a process, in so far as purely natural and imperceptible, would constitute accretions in the legal sense, and thus could, under the Mexican (Spanish) law as declared in State v. Balli [144 Tex. 195, 190 S.W.2d 71 (1944)], belong to the private owner of the abutting upland rather than to the State.”

“But, as clearly deducible from Giles v. Basore, 154 Tex. 366, 278 S.W.2d 830, supra, and the authorities therein cited, the mere fact that fast land has arisen by accretion and even adjoins the older upland does not necessarily make it the property of the upland owner. If the process starts at an island or creates an island or a high point in the sea bottom and from there moves toward the older upland or mainland, becoming fast land as it goes, this new fast land is undoubtedly the property of the State.’1 (Emphasis supplied) The court, in effect, held that even if the land became “fast land”, the burden of proof rested upon the land owners to prove that the land in question was true accretion in the sense of a natural and imperceptible deposit and that it was an accretion to the original boundary of the grant. Luttes v. State, 159 Tex. 500, 324 S.W.2d 167 at 187. See Humble Oil & Refining Company v. Sun Oil Company, Fifth Circuit, 190 F.2d 191. If the landowner was unable to fulfill this burden, then such land was the property of the State of Texas. Whether the land in question is fast land in the form of an island, or a high point in the bottom of the sea, or land that grew and rose from the bottom and beds of the sea and became a part of the mainland, this new land, whether formed by natural and/or artificial means, is not fast land contemplated by the Legislature to be available for purchase or lease under the Vacancy Act.

In the Luttes v. State case, supra, the Supreme Court found that the littoral landowners’ boundary was the point of mean higher high tide on the Laguna Madre. The Legislature excluded submerged land from the operation of the Vacancy Statute. In Article 5415e, Sec. 2, (e) the Legislature defined submerged lands as being “any land extending from the shore line marking the boundary between the lands of the state and littoral owners, to the low water mark on any salt water lake, bay, inlet or other inland water within tidewater limits, and any land lying beneath such bodies of water * * *” We approve this definition. Following this definition, clearly the land described in the Luttes case would constitute submerged lands as defined in Article 5415e, Section 2(e). In the case of Webb Materials, Inc. v. Lacey, 364 S.W.2d 473, Tex.Civ.App. ref., n. r. e., 1963, in an opinion by Justice Pope, the court stated that “ * * * City of Victoria v. Schott, 9 Tex.Civ.App. 332, 29 S.W. 681 (1895), is authority for the proposition that islands in the bed of a river at the time of the grant, as well as those arising in the bed thereafter, belong to the State. The definition used by the court was first stated in Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, and was re-affirmed in Maufrais v. State, 142 Tex. 559, 180 S.W.2d 144.” (Emphasis supplied) We fail to find any perceptible difference between such lands as described by the appellant and land in the form of an island that arises from the bed of the sea. Accretion denotes the process of increasing real estate by the gradual and imperceptible disposition by water of solid material, through the operation of natural causes so as to cause that to become dry land that was before covered by water. Denny v. Cotton, 3 Tex.Civ.App. 634, 22 S.W. 122 (1893); 60 Tex.Jur.2d 295, Sec. 303. See Humble Oil & Refining Co. v. Sun Oil Co., 190 F.2d 191 (C.A. 5th 1951) on rehearing 19.1 F.2d 705 (1951), cert. denied, 342 U.S. 920, 72 S.Ct. 367, 96 L.Ed. 687 (1952); Giles v. Basore, 154 Tex. 366, 278 S.W.2d 830 (1955); Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410 (1943); Fitzgerald v. Boyles, 66 S.W.2d 347 (Tex.Civ.App.1931) writ. dism.; State v. Balli, 144 Tex. 195, 190 S.W.2d 71 (1944); City of Victoria v. Schott, 29 S.W. 681, 682 (Tex.Civ.App.1895) no writ, 8 Baylor Law Review, 359, 363.

Islands, bays and areas within tide limits are in a different category from lands contemplated under the Vacancy Act. This Act was to encourage the discovery of land which the State believed it had already patented and sold but which it had in fact not patented and sold because surveys revealed vacant strips between titled lands. Islands, bays and areas within tidewater limits cannot be sold for private purposes but can be leased for oil and gas mining under separate articles and statutes. Appellants’ points where they complain that the trial court erred in granting the surm mary judgment to appellees as a matter of law are overruled. See 46 Tex.Jur.2d, Public Lands, Sec. 42, et seq; 34 Tex.Jur., Public Lands, Sec. 169, et seq; 42 Tex. Jur.2d, Oil and Gas, Sec. 321, et seq; 60 Tex.Jur.2d, Waters, Sec. 293, 294, et seq; City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028, at page 1033 (1940). See Giles v. Basore, 154 Tex. 366, 278 S.W.2d 830, at p. 835 (1955). Lorino v. Crawford Packing Company, 142 Tex. 51, 175 S.W.2d 410, at 413 and 414 (1943). See State v. Balli, 144 Tex. 195, 190 S.W.2d 71, at 99 and 100 (1944); Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d 623 (1957); Giles v. Ponder, 275 S.W.2d 509, Tex.Civ.App. (1955); Rudder v. Ponder, 156 Tex. 185, 293 S.W.2d 736 (1956); Humble Oil & Refining Co. v. Sun Oil Co., Fifth Circuit, 190 F.2d 191; State v. Arnim, Tex.Civ.App., 173 S.W.2d 503; Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728, (1937); Ray v. State, 153 S.W.2d 660, at 662 and 663, Tex.Civ.App., ref. w. o. m.; Short v. W. T. Carter & Brother, 133 Tex. 202, 126 S.W.2d 953 (1938); State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065 (1932); Landry v. Robison, 100 Tex. 295, 219 S.W. 819 (1920); see also Standard v. Sadler, 383 S.W.2d 391, Sup.Ct. (1964).

There are other provisions in Article 5421c which control the applicability of the appellants’ application to establish a vacancy in the tidelands in Laguna Madre. The 1939 Vacancy Act, which amended the 1931 Vacancy Act, now Article 5421c, V.A. T.S. defines an applicant as “any person, other than a good faith claimant, who discovers and files application to purchase or lease a vacancy.” (Emphasis supplied) (Acts of 1939, 46th Legislature, p. 466, Sec. 1(a); 5421c, Sec. 6(a), p. 437, V.A. T.S.) A similar definition appeared in Section 8 of the 1931 Act (H.B. No. 358, Acts of 1931, 42nd Legislature, p. 452, Ch. 271, Sec. 8). The Supreme Court of Texas construing the meaning of “discoverer” under Section 8 of the 1931 Act, held in the case of Short v. W. T. Carter & Brother, et al., 133 Tex. 202, 126 S.W.2d 953 (1938) that:

“The first condition is reasonable and its meaning and purpose are plain, for one should not be rewarded for ‘discovering’ land already listed on the Land Office records. The listing of land on the records of the Land Office follows and could not precede its discovery. One of the proper places for making a record of school land belonging to the State is on the official maps.”

This rule was followed in Spring v. Meco Production Co., 134 S.W.2d 828, Tex.Civ.App.1939, wr. dism., judg. corr., where the Court held that: An applicant for lands previously patented by the State of Texas was not a “discoverer”. And in Glasscock v. Bryant, 185 S.W.2d 595, Tex.Civ.App.1944, wr. ref., w.o.m., where an applicant for lands previously leased by the State was not a discoverer. These cases hold that where lands are listed on the official land office map, or have been patented by the State, or have been leased by the Commissioner of the General Land Office they do not qualify under the Vacancy Act for purchase or lease.

The boundary of the Buena Vista Grant is at the mean higher high tide line in the Laguna Madre by virtue of the title as a littoral grant and by the definition in Luttes v. State, supra. This Buena Vista Grant was titled by the Republic of Mexico in 1829. The record shows it was re-surveyed in 1855 and a confirmatory patent was issued by the State in 1873. The eastern boundary of Buena Vista Grant is at the Laguna Madre. The original surveyor surveying the Buena Vista Grant, upon reaching the Laguna Madre, said: “there being nothing ahead of us but water this second line came to an end.” Some 4086.61 acres of the mud flats was adjudicated to be the property of the State of Texas (Luttes v. State, supra) as accretion belonging to and added to the islands in the Laguna Madre. If any land described as mud flats is genuine accretion that can be subsequently proved to be a part of the Buena Vista Grant, such land would of course be considered the same as titled lands. If such mud flats represent accretion to islands or is new fast land that arose out of the bottom of the Laguna Madre, then it belongs to the State of Texas, and does not represent any land discovered by the appellants. All of this land, submerged and unsubmerged, was surveyed by the General Land Office maps by protraction in 1950. Field notes of actual surveys of much of this land were made and filed in the records of the General Land Office in 1937. The land covered by Laguna Atas-cosa National Wild Life Refuge Survey by the United States was filed in 1953. Judgment in the Luttes v. State case was rendered in September, 1955.

Section 6(a) of Article 5421c limits the appellants to land described in the Act as vacant unsurveyed land. “ ‘Vacancy,’ when used in this Act, means an area of unsurveyed school land not in conflict on the ground with lands previously titled, awarded, or sold, which has not been listed on the records of the Land Office as school lands and which on the date of the filing was neither subject to an earlier subsisting application to purchase or lease by a discoverer or claimant nor involved in pending litigation brought by the State to recover the same.” Section 3 of Article 5421c defines unsurveyed land “ * * * to be all areas not included in surveys on file in the General Land Office or surveys delineated on the maps thereof.” In the same section, the Act defines surveyed land within the terms contemplated by Article 5421c “ * * * to be all tracts or parts of tracts heretofore surveyed either on the ground or by protraction, and set apart for the public school funds and which is unsold, and for which field notes are on file in the General Land Office or which may be delineated on the maps of said Office as such * * (Emphasis supplied) The entire Laguna Madre area from the Buena Vista Grant to Padre Island is shown by the record to have been surveyed upon maps by protraction and which maps are on file in the General Land Office. The Buena Vista Grant as a littoral grant calls for its eastern boundary to be the Laguna Madre and is that boundary as has been defined in Luttes v. State by the Supreme Court of Texas. The protracted lines on the maps on file in the General Land Office were extended until they reached the upland Buena Vista Grant so that such survey on the maps on file in the General Land Office include all of the possible lands that could come under the appellants’ application as either belonging to the State of Texas or to the owners of the Buena Vista Grant. We hold that the appellants are neither discoverers nor could such land be the unsurveyed land within the purview of Art. 5421c. Foster v. Gulf Oil Co., 335 S.W.2d 845, Tex.Civ.App.1960, wr. ref., n. r. e.; Barrow v. Boyles, 122 Tex. 416, 61 S.W.2d 783 (1933); Wright v. Nelson, 46 S.W. 261 (Tex.Civ.App.1898), er. ref.; Juencke v. Terrell, 98 Tex. 237, 82 S.W. 1025 (1904); Anderson v. Polk, 117 Tex. 73, 297 S.W. 219 (1927) ; Taylor v. Hoya, 9 Tex.Civ.App. 312, 29 S.W. 540 (1895); O’Keefe v. Robison, 116 Tex. 398, 292 S.W. 854 (1927).

Appellants’ description of lands in their application to establish the alleged vacancy under Section 6(a) of Article 5421c, failed to describe any land sufficient for a surveyor to locate. In effect, appellants describe as vacant all of the unsur-veyed public school land lying between the Buena Vista Grant and the Laguna Madre. Since the Buena Vista Grant calls for the Laguna Madre as its boundary on the east and since the Laguna Madre extends to the Buena Vista Grant on the west it is obvious that a surveyor could not locate any land between the Buena Vista Grant and the Laguna Madre. Although the description of an alleged vacant parcel of land need not be set out by a metes and bounds description, it must be sufficient for a surveyor to locate the land in question. Walker v. Kenedy, 133 Tex. 193, 127 S.W. 2d 163 (1938); Wright v. Nelson, 46 S.W. 261 (Tex.Civ.App.1898, wr. den.). The appellants described the land they intended to include in their petition when they said: “It being intended by said application to include all of the unsurveyed public school land lying between said Potrero de Buena Vista Grant and Laguna Madre.” The Buena Vista Grant is admittedly a littoral grant and the boundary of which has been decided by the Supreme Court of Texas as being the shoreline which is that point at the mean higher high tide. The Legislature has defined “submerged lands” to mean “any land extending from the shoreline marking the boundary between the lands of the State and littoral owners to the low water mark on any salt water * * * bay * * * within tidewater limits, and any land lying beneath such bodies of water. * * if there were any land not belonging to the littoral owner of the Buena Vista Grant and lying between his boundary and the Laguna Madre it would certainly be “submerged lands” as defined by the Legislature and approved by this Court. Art. 5415e, Sec. 2(e). Submerged lands are excluded from the Vacancy Act. 5421c, Sec. 1. We hold that appellants have not described any vacant land sufficient for a surveyor to locate.

Appellees have attacked the appellants’ application in numerous other particulars claiming fatal defects in the appellants’ application and procedure. In view of our holding herein, we do not believe that it is necessary to discuss these additional points. Summary judgment was properly granted in favor of the defendants.

Appellees’ counter points one through four are sustained, overruling all or parts of all of appellants’ points of error one through three.

The judgment of the trial court is affirmed.

SHARPE, J., not participating.


author: WILSON, Justice.

text:
    Dean WORD et al., Appellants, v. Margaret CLIFTON et al., Appellees.
    No. 4472.
    Court of Civil Appeals of Texas. Waco.
    Feb. 3, 1966.
    Rebearing Denied Feb. 24, 1966.
    Touchstone, Bernays & Johnston, Charles C. Sorrells, Dallas, for appellant.
    Dunnam & Dunnam, Waco, for appellee.
   WILSON, Justice.

Defendants’ position in this non-jury plea of privilege appeal is that there is no evidence or insufficient evidence to support implied findings of their negligence and of proximate cause in an automobile collision case under Subd. 9a of Art. 1995 Vernon’s Ann.Civ.St. They are partners who were constructing a state highway under contract. The plea was overruled; we affirm.

Plaintiffs alleged defendants failed to erect warning signs informing travelers that two lanes of what was, or was to be a four-lane limited access highway where the collision occurred, which it is claimed would normally have been one-way lanes, were temporarily carrying two-way traffic. There is evidence to sustain the facts alleged. Defendants’ argument is to the effect that it was the exclusive province of the State Highway Department to erect and maintain such signs, that the department had not required them to erect the signs under their contract, and they were under no duty to do so.

Both at common law, irrespective of the contract, and by the terms of their contract with the State, defendants had a duty to provide for the safety of the traveling public. Strakos v. Gehring, Tex.Sup., 360 S.W.2d 787, 795; Adams v. Corbin, Tex.Civ.App., 301 S.W.2d 209, 213, writ dism.; John F. Buckner & Sons v. Allen, Tex.Civ.App., 289 S.W.2d 387, 397; Wedegartner v. Skoruppa, Tex.Civ.App., 236 S.W.2d 216, 218; The Jarbet Company, Inc. v. Moore, Tex.Civ.App., 397 S.W.2d 268.

Whether the failure to erect the two-way traffic warning signs constituted a breach of such duty proximately causing the collision was a question of fact. In T. L. James & Co. v. Waldrep, Tex.Civ.App., 385 S.W.2d 866, 869 relied on by defendants, there was evidence that signs reading “Two-Way Traffic Ahead” and “Form Single Lane” were actually erected. The case militates against their contention. The statute on which City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326, 330, 52 A.L.R.2d 680, was decided, has been amended. Others cited are not factually analogous. The evidence sustains the implied findings.

Affirmed.


author: BELL, Chief Justice.

text:
    Joseph R. DELLOLIO et al., Appellants, v. Nelda BROWN et al., Appellees.
    No. 14608.
    Court of Civil Appeals of Texas. Houston.
    Feb. 10, 1966.
    Rehearing Denied March 3, 1966.

      Markwell, Stubbs, Decker, Dalehite & Youngblood, Henry G. Dalehite, Jr., Galveston, for appellants.
    McLeod, Alexander, Powel & Apffel, Robert W. Alexander, Galveston, for ap-pellees.
   BELL, Chief Justice.

This is an appeal from a judgment rendered by the court, based on a jury verdict, that appellants take nothing in their suit for damages allegedly resulting to Helen Louise Dellolio and her daughter, Barbara Jo, from injuries sustained in an automobile accident occurring in the City of Galveston on January 25, 1961.

The jury made the following findings in response to the following special issues:

Special Issue No. 1. Nelda Brown, the appellee, driving an automobile belonging to W. E. Glidden, did not fail to keep a proper lookout.

Special Issue No. 3. Nelda Brown failed to bring her automobile to a stop before striking the vehicle driven by Mrs. Dellolio.

Special Issue No. 4. Such failure was not negligence.

Special Issue No. 6. Nelda Brown was not operating her vehicle at an excessive rate of speed.

Special Issue No. 8. The accident was an unavoidable one.

Special Issues Nos. 2, 5 and 7 were proximate cause issues.

Appellants here contend that the jury’s answers to Special Issues Nos. 2, 4, 6 and 8 are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. Too, they contend that a negative answer to each of the supporting proximate cause issues would have also been contrary to the overwhelming weight and preponderance of the evidence.

In appraising these contentions, we must consider all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. If after considering all of the evidence we are of the view that an answer of the jury to a material issue is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, it becomes our duty to set aside the answer and grant a new trial, assuming, of course, the judgment is not otherwise supported. However, the mere fact that we might have made a different answer does, not authorize us to substitute our opinion for that of the jury. Continental Bus System, Inc. v. Biggers, 322 S.W.2d 1 (CCA), ref., n. r. e., and authorities there cited.

The evidence here shows that about 4:30 o’clock in the afternoon Mrs. Dellolio was on her way home from her work at the Hutchings-Sealy Bank. Her daughter, Barbara Jo, was riding in the back seat of the automobile. A fellow employee, Mr. Steel, was riding in the front seat with Mrs. Dellolio who was driving her automobile. They proceeded south on 25th Street, a paved street, until they reached the intersection at Seawall Boulevard. There is a traffic control signal at the intersection. When Mrs. Dellolio reached the intersection she stopped her car at the north line of the Boulevard because the traffic signal showed red for traffic proceeding south on 25th Street. Undisputedly she had been stopped there a number of seconds when the vehicle driven by Mrs. Brown struck Mrs. Dellolio’s car from the rear. It is variously estimated that Mrs. Dellolio’s car, though she had her foot on the brake, was knocked into the Boulevard a distance of from 5 to 10 feet. All evidence, even of Mrs. Brown, shows that Mrs. Dellolio’s car was stopped at the intersection and there is no suggestion in the record of any sudden stop made by her. The car had been stationary for such a time that a driver approaching from the rear should on seeing it be able to stop.

Mr. Steel, the passenger in Mrs. Del-lolio’s car, testified they had been stopped about a minute. Mrs. Dellolio’s car was pushed forward 6 or 8 feet. Mrs. Brown told the investigating officer it was all her fault. 25th Street is not level all the way to the Boulevard but some distance back there is a slight rise or hump. After crossing it, the street slopes slightly. The hump or rise does not prevent one from seeing the light half a block away.

Mrs. Dellolio testified on the day in question she saw the light a block away. On deposition she had said half a block. Her car was hit while it was stationary at the Boulevard waiting for the light to change to green.

The police officer who investigated the collision stated that Mrs. Brown told him she was in a hurry to get home and did not see Mrs. Dellolio’s car until the last minute; that it was parked in front of her, stopped for the red light. The streets were wet as it was drizzling rain.

Appellants introduced a part of Mrs. Brown’s testimony given on deposition. There she testified she saw Mrs. Dellolio’s car shortly before the collision. When she first noticed the car it was stopped at the corner of 25th and Boulevard. She was stopped at the light. The witness assumed the light was red but she didn’t notice the light. She was driving 20 or 25 miles per hour. The streets were wet. She saw Mrs. Dellolio’s car about a car length away and put on her car brakes. She slid into the stopped car. The brakes engaged about the time of the collision.

Mrs. Brown had lived in Galveston many years and had driven on 25th Street at the Boulevard many times. She knew there was a traffic control signal at the intersection and that it might be showing red so she would have to stop. At the trial Mrs. Brown testified that 25th Street shortly before reaching the Boulevard rises so you go up an incline and then it tapers off. No estimate of the distance from the Boulevard is given. She was on top of the incline when she first saw Mrs. Dellolio’s car. She then applied her brakes. She did not know the distance she slid, but it was for just “a little bit” before the collision. The streets were wet. She denied she told the officer it was her fault. She did not remember talking to Mr. Steel. She knew the incline was there. She again said she was about a car length away when she first saw Mrs. Dellolio.

We are of the view that the jury’s answer acquitting Mrs. Brown of failure to keep a proper lookout is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. It is noticed that there is no testimony explaining why Mrs. Brown did not see the red light at least half a block away. The only evidence in the record shows it could be seen at least at that distance, this despite the hump or incline on 25th Street. While Mrs. Brown testified there was an incline, at no point in her testimony does she attempt to say it prevented her from seeing Mrs. Dellolio’s car or the light at a greater distance away than the top of the incline. She knew the light was at the intersection and yet she does not say she looked for it though she says she knew cars might be stopped for it. She didn’t even notice the light.

We are of the further view that an answer finding such failure not to be a proximate cause of the collision would be insufficiently supported by the evidence.

It follows that the jury’s answer finding the collision to be the result of an unavoidable accident is contrary to the overwhelming weight and preponderance of the evidence.

Since the case must be reversed and remanded, it is unnecessary for us to discuss the other points of error.

Reversed and remanded.