author: CLAUDE WILLIAMS, Justice.

text:
    James E. PETERSON, trustee, Appellant, v. William C. BARRON et al., Appellees.
    No. 16664.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 18, 1966.
    Rebearing Denied March 18, 1966.

      Wise & Stuhl, Dallas, for appellant.
    John F. Boyle, Jr., City Atty., Irving, and Jack D. Eades, of Lefkowitz, Green, Ginsberg, Eades & Gilmore, Dallas, for appel-lees.
   CLAUDE WILLIAMS, Justice.

James E. Peterson, Trustee, brought this action against William C. Barron and the City of Irving, a municipal corporation, for trespass and subsequent damages to real property owned by plaintiff Peterson as a result of the construction of a drainage canal through a portion of plaintiff’s land. Defendants defended their right to construct said drainage canal by virtue of a certain drainage and utility easement deed executed by plaintiff’s predecessor in title. The trial court sustained the defendants’ motion for summary judgment thereby denying plaintiff any relief. From that judgment this appeal follows.

FACTS

On February 15, 1961 John P. Baird, being the then owner of the tract of land involved in this litigation, by written instrument entitled “Drainage and Utility Easement Deed” granted and sold to the City of Irving, a municipal corporation of Dallas County, Texas, a 20-foot wide drainage and utility easement on the west side of said property. The easement deed, omitting detailed description by metes and bounds, reads as follows:

“DRAINAGE AND UTILITY EASEMENT DEED
STATE OF TEXAS ] KNOW ALL MEN BY COUNTY OF DALLAS j THESE PRESENTS:
THAT I, JOHN P. BAIRD of the County of Dallas, State of Texas, for and in consideration of the sum of One Dollar and no/100 to us in hand paid by the City of Irving, Texas, and the further consideration of the special benefits to be derived from our property, the receipt and sufficiency of which is hereby acknowledged and confessed, have GRANTED, SOLD, and CONVEYED and by these presents do GRANT, SELL, and CONVEY unto the City of Irving, a municipal corporation of Dallas County, Texas, the right to construct, reconstruct and perpetually maintain drainage and utility facilities together with all laterals in, upon and across the following described property lying and being situated in the City of Irving, Dallas County, Texas to-wit:
Being a twenty (20') foot wide Drainage and Utility Easement out of the Samuel Brooks Survey, Abstract #141, and being a part of a tract of land conveyed unto John P. Baird, by O. D. Bass and O. Bass by Deed dated January 26, 1951, and recorded in Volume 3448, Page 130 of the Deed Records, Dallas County, Texas, said 20 foot wide Drainage and Utility Easement being more particularly described by metes and bounds as follows:
⅜ ⅜⅜⅜⅜⅜⅜⅜⅜⅜⅜
All taxes of every kind shall be prorated as of date of this conveyance.
A Temporary Construction Easement shall extend on either side of the above described drainage and utility easement to any point necessary to spread, level and grade off excess dirt.
Said Temporary Construction Easement shall terminate one (1) year after the construction of the Drainage and Utility Easement has been completed.
TO HAVE AND TO HOLD the said premises to the City of Irving, its successors and assigns together with the right and privilege at any and all times to enter said premises or any part thereof for the purpose of constructing, reconstructing and maintaining said drainage and utility facilities and for connections therewith, and we do hereby bind ourselves, our heirs, executors and administrators to Warrant and Forever Defend, all and singular, the said premises unto the City of Irving, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof; that all expenses in the construction and maintenance of said drainage and utility facilities would be at the expense of the said City of Irving and in the construction of said drainage and utility facilities should the said City of Irving find it needful to remove any improvements now on the above described property, that such removal and replacing of same shall be wholly at the cost of the said City of Irving. Nothing in this Easement shall be construed as a waiver by the City of Irving, of any connection charge, or other charges imposed by Ordinance, or the Charter of the City of Irving.”

Between the months of March and June, 1961 the City of Irving proceeded to construct and install a sanitary sewer line below the surface of the earth in the easement above described. Such utility is still present and in use.

Appellant James E. Peterson acquired the property in question on November 21, 1963 from Thomas P. Murphy, et al, said deed containing the following recitation:

“This conveyance is executed, delivered and accepted subject to the following: * * * (5) Drainage and utility easement from John P. Baird, to the City of Irving, dated 2-15-61, filed 3-21-61, recorded in Deed Records of Dallas County, Texas; * *

Appellant’s tract is approximately 250 feet by 472.7 feet with the south boundary line fronting approximately 250 feet on Highway 183. Appellee Barron owns a tract of comparable size immediately adjoining appellant’s tract on the west. The two tracts were formerly separated by a barbed wire fence running north and south, and there was a natural drainage ditch running along the east side of the Barron tract, from the north boundary line all the way down to the south boundary line, where the drainage was carried under Highway 183 through a culvert.

In May of 1964 the City of Irving, by and through its city engineer, approved plans for a drainage canal which was to be 6 feet deep and 50 feet wide, 20 feet thereof being on appellant’s land and 30 feet being on appellee Barron’s land. That portion of the drainage canal on appellant’s land was to be coextensive with the 20-foot easement granted to the City of Irving by Baird, as aforesaid. When the construction of the drainage canal was commenced in June 1964 James E. Peterson filed this lawsuit alleging, among other things, that the City of Irving and its agents did not have any authority or right to construct the drainage canal within the 20-foot easement located along the most westerly 20 feet of his property and prayed for the issuance of an injunction restraining the construction of the canal and also asking money damages for trespass. In the alternative Peterson alleged that the execution of the easement deed by Baird to the City of Irving had been obtained by either a mutual mistake or a unilateral mistake, coupled with fraudulent representations, by virtue of which the instrument should be reformed to eliminate therefrom any right in the City of Irving to construct anything other than the underground sanitary sewer line. Appel-lees filed their motion for summary judgment relying upon the easement deed and various affidavits. Appellant resisted the motion with affidavits and depositions seeking to uphold his contention that: (1) the easement was for one purpose only and did not include the right to build a drainage canal thereon; (2) the easement was ambiguous and required parol testimony to explain the intent of the parties; and (3) Baird, the original grantor in the easement deed, had been led to execute the same by virtue of fraudulent misrepresentations on the part of an agent of the City of Irving and therefore the instrument should be reformed in equity.

Prior to judgment the parties agreed to nonsuit the issues, inter alia, the contention that the manner of construction of the drainage canal within the 20-foot easement constituted an unreasonable use of said easement.

OPINION

In his first point on appeal appellant contends that the trial court erred in granting appellees’ motion for summary judgment and thereby ruling as a matter of law that the instrument in question did not limit the City of Irving to the installation of a sanitary sewer in the easement on appellant’s land. Under this point he takes two positions: (1) that the instrument in question is not ambiguous on its face and limits the City to the installation of one underground utility, i. e., the sanitary sewer installed in March 1961; (2) or in the alternative, if the instrument is ambiguous then the court should hear parol testimony which would present issues of fact.

The resolution of the points presented by appellant is dependent upon a proper construction of the written instrument which is the focus of the controversy. Is the instrument clear and unambiguous in expressing the intent of the contracting parties? If so, does the instrument clearly grant to the City multiple rights of use, including installation of sewer pipe as well as drainage canal, or is it limited in its scope to the installation of the sewer pipe alone ? If the instrument is not clear then does it possess the character of ambiguity which will permit the court to consider evidence of the various issues contended by appellant?

In Davis v. Andrews, Tex.Civ. App., 361 S.W.2d 419 and again in Young v. De La Garza, Tex.Civ.App.; 368 S.W.2d 667, we had occasion to review and discuss the cardinal rules of construction of written instruments. While in those cases we were dealing with leases and mineral deeds the same rules control in determining the rights under an easement. Armstrong v. Skelly Oil Co., Tex.Civ.App., 81 S.W.2d 735, wr. ref. As we stated in the named cases the primary rule of construction of an instrument is that the intention of the parties be ascertained and given effect and that such intention, especially that of the grantor, is to be gathered from the instrument as a whole and not from isolated parts thereof. This is sometimes called the “four corners rule”. 19 Tex.Jur.2d, § 112, p. 402; Texas Pacific Coal & Oil Co. v. Masterson, 160 Tex. 548, 334 S.W.2d 436. Even this primary rule is modified with the restriction that it is not the intention which the parties may have had, but failed to express in the instrument, but it is the intention which by said instrument they did express. In other words, the question is not what the parties meant to say but the meaning of what they did say. If there is no ambiguity in a deed, the instrument will be enforced as written, even though it does not express the original intention of the parties. 19 Tex.Jur.2d § 111, p. 401; 19 Tex.Jur.2d, § 107, p. 394; First Natl Bank of Snyder v. Evans, Tex. Civ.App., 169 S.W.2d 754; Amarillo Oil Co. v. McBride, Tex.Civ.App., 67 S.W.2d 1098.

Another rule of construction applicable here is that easement deeds must be construed most strongly against the grantor, and most favorable to the grantee, so as to confer the largest estate which a fair interpretation will permit. Armstrong v. Skelly Oil Co., Tex.Civ.App., 81 S.W.2d 735, wr. ref.; Stevens v. Galveston, H. & S. A. Ry. Co., Tex.Com.App., 212 S.W. 639; and Texas & N. O. R. Co. v. Orange County, Tex.Civ.App., 206 S.W. 539, wr. ref.

It is elementary, of course, that there must be some ambiguity in a deed before extrinsic evidence is admissible to vary the terms thereof. 19 Tex.Jur.2d, Deeds, § 164, p. 486. While it is true, as we pointed out in King v. City of Dallas, Tex.Civ.App., 374 S.W.2d 707, that in some instances it is not improper for the court to admit evidence of the existing facts and circumstances to apply same to the subject matter of the contract, this rule does not mean that the parties may prove the making of a different agreement from that expressed clearly in the written contract. Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004.

Applying these well settled principles of law to the construction to be placed upon the instrument now before us, and having carefully considered the terms expressed in the easement deed, we find no difficulty in holding, as a matter of law, that the instrument is plain and unambiguous in its express terms and therefore the tender of extrinsic evidence is neither appropriate nor desirable to alter or change such clearly expressed intention.

Appellant’s argument that the instrument restricts and confines the right of the City of Irving to only one use, that is, the installation of a sewer drainage pipe which it did install in 1961, and does not permit the City other uses of the easement in question, is without support in the very terms of the instrument itself. At the very top of the deed we find the title, “Drainage and Utility Facilities,” noting the plural and not the singular. The term “drainage and utility easement” (emphasis supplied) appears repeatedly throughout the instrument indicating multi-purpose rather than a singular purpose use intended by the grantor. We know of no prohibition in law granting an easement for more than one purpose. The cited cases have clearly indicated construction of such instruments to indicate multiple uses of easements. Lone Star Gas Co. v. Childress, Tex.Civ.App., 187 S.W.2d 936; Knox v. Pioneer Natural Gas Co., Tex.Civ.App., 321 S.W.2d 596. The words “drainage” and “utility” facilities are of common and easily understandable meaning and usage, especially when used in connection with the rights of cities and other municipal corporations. Utility facilities cover many services such as light, gas, telephone and sewerage lines. The ordinary connotation of the word “drainage” means the carrying away of water and other liquids either in closed or open conduits. As is pointed out in McQuillin’s work on Municipal Corporations, Sec. 31.03:

“The law often distinguishes sewers from drains and ditches. A drain has been defined as a trench, a watercourse, a sewer, a sink. It is an artificial conduit or channel designed to carry off water, sewage, filth, refuse, etc.”

And in Section 31.05, the author says:

“And, while it is true that ‘drainage’ may include sewerage, yet when used as appurtenant to lands, the most obvious suggestion is a drainage of water, and an agreement for drainage which did not include house drainage in its terms, has been held not to cover it by implication.”

So we find no difficulty in construing these plain and ordinary terms which clearly grant to the City of Irving the right not only to install the sewerage pipe, which it did install, but also to install other drainage and utility facilities. The law is settled that where the easement is granted for general purposes, it includes not only the use required at the time of the grant, but also the right to use the easement for any purposes connected with the use to which the property is being put. 21 Tex.Jur.2d, § 40, p. 169. The grant in this case clearly gives the' City of Irving a right to lay the sewer line utility and also to employ the area covered by the easement for drainage facility. There is no unreasonable use of the easement by virtue of the construction of the drainage canal, as demonstrated by the parties’ agreement to this effect.

Appellant’s arguments based upon the “temporary construction easement” seek to have this subsidiary clause control the general purpose of the easement deed. The “temporary construction easement” as contained in the instrument is separate and apart from the general overall easement for drainage and utility facilities and does not even cover the same property but relates to land adjacent to the permanent easement. Such provision with reference to temporary construction does not in any manner avoid or limit the overall grant of power to the City of Irving as evidenced by the clear and unambiguous wording of the instrument.

By his second point appellant contends that the instrument in question is ambiguous and therefore the trial court should have considered parol evidence to clarify the ambiguity. From what we have said in connection with appellant’s Point 1, this point is overruled for the simple reason that we have held that the deed in question was not ambiguous but clear and express in its terms to reveal the intention of the parties.

Appellant’s third point urges error on the part of the trial judge in granting appellees’ motion for summary judgment, and thereby ruling that appellant did not have a cause of action for reformation. He contends that, for the purpose of this point of error, it is to be assumed that the instrument in question is not ambiguous and, as a matter of law, grants to the City of Irving the right not only to install the sanitary sewer, but also to excavate the canal. In support of his plea of reformation appellant attached the affidavit of John P. Baird who executed the instrument in question. Baird, in his affidavit, said:

“On or about February IS, 1961, the undersigned Affiant received a telephone call from a Mr. Foss (or Faas or Fass) who identified himself as an employee of the City of Irving, Texas. Mr. Foss said that he wished to come out to visit the undersigned Affiant, to secure from him an easement for the construction of a sanitary sewer line.” (Emphasis supplied.)

Baird then went on to say that Foss orally represented to him that the easement desired was to be used only for the construction of a sanitary sewer line; that he told him of the details of the construction of the sanitary sewer line; that he told him that once the line was laid, it would not have to be bothered in one hundred years, that once it was constructed and the surface restored, no one would ever know it was there, and, especially that there would be no interference with the surface use of the easement strip, which could always be used for parking. Baird said that he would not have executed the easement deed but for the representations made to him by Foss which induced him to believe that he was permitting only the construction of the proposed sanitary sewer line and that no other use would be made of the easement strip by the City.

Foss was shown to have died prior to the filing of this suit and no affidavit was obtained from him prior to his death.

We find no evidence in this record to support appellant’s contention of mutual mistake.

A one-sided mistake is not a ground for reformation of an instrument. To warrant reformation there must not only have been a mistake on the plaintiff’s part but such must be accompanied' by fraud or fraudulent misrepresentation ascribable to the other party. 49 Tex.Jur.2d, § 31, p. 638. Such fraud or misrepresentation must be that of, or imputable to, the other party to the contract. Moreover, such alleged mistake on the part of the one party must be clear and convincing. Hardin v. State, Tex.Civ.App., 254 S.W.2d 898.

In 25 Tex.Jur.2d, § 13, pp. 626-627, the necessary elements to constitute actionable fraud are stated:

“The essential elements of actionable fraud based on a false representation are a false statement of a material fact made to be acted on and actually believed and acted on with consequential injury to the person acting thereon. * * * It is said that to state a cause of action for fraud that is based on false representations, the plaintiff is required to show that the defendant made or was connected with the making of the representation; that the representation was as to a material fact; that the representation was false at the time it was made; that the representation was made with intent to induce the plaintiff to do or refrain from doing some act; that the representation was relied on by plaintiff — * * *, that the plaintiff believed it to be true and was induced thereby to act or refrain from acting; and that the plaintiff thereby suffered damage or injury.”

It is well settled that in order to constitute actionable fraud the representation complained of must concern a material fact as distinguished from a mere matter of opinion, judgment probability or expectation. If the representation is vague or is merely a loose, conjectural or exaggerated statement, it is not a material fact. 25 Tex. Jur.2dr § 15, p. 630.

When we apply these rules to Baird’s affidavit appellant’s alleged cause of action for reformation fails as a matter of law. The alleged representation of Baird concerning the future use of the easement is not the representation of an existing fact but of an opinion or statement concerning some future use. There is no evidence to indicate that Foss knew that such statements made or ascribed to him to have been made were false and were made by him with knowledge of such falsity.

There is another and cogent reason why Baird’s affidavit is insufficient to constitute proof of actionable fraud. There is no evidence that Foss’ alleged statement was made by him as an agent for the City of Irving or that he possessed authority to make such alleged statement. It is to be observed that Baird himself stated that Foss represented himself to be an “employee” of the City of Irving. Nothing else is contained in Baird’s affidavit to throw any light upon Foss’ alleged authority or agency of the City of Irving. There is no proof that the City of Irving authorized Foss to make such alleged representations nor is there any proof of ratification of Foss’ acts or conduct said to be fraudulent.

“The principle that anyone dealing with an agent is bound to ascertain the nature and extent of his authority is applied to municipal corporations more strictly than to private corporations. Thus, persons who enter into contracts with a municipal corporation are chargeable with notice of the extent of its powers, and of the powers of its officers and agents through whom the contract is made, and must take notice at their peril of any restrictions or limitations on that power.” 40 Tex.Jur.2d, § 410, p. 99.

Even if it be conceded that Foss was an agent of the City of Irving, which is not demonstrated in this record, he would not have even implied authority to surrender the vested rights of the City of Irving into the plain and unambiguous easement deed signed by Baird. Lone Star Gas Co. v. Childress, Tex.Civ.App., 187 S.W.2d 936. Furthermore, there is no evidence that Baird did not read the plain provisions of the easement deed prior to signing the same, nor that he was prevented from doing so. To have admitted Baird’s alleged statement concerning what Foss represented to him would be for the court not only to reveal the facts and circumstances surrounding the signing of the deed in question but would, in effect, write a new contract with additional terms, especially restrictive terms, for the parties. Such would open a Pandora’s box in the field of contract law and would lead to indescribable confusion inimical to proper administration of justice.

We are not unmindful of the fact that this is an appeal from a summary judgment and our review of such judgment has been made in the light of the now familiar rules recently reiterated by our Supreme Court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41. Having done so we find no reversible error reflected by any of appellant’s points and affirm the judgment of the trial court.

Affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    Dr. Charles S. ALEXANDER, Appellant, v. BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION, Appellee.
    No. 4439.
    Court of Civil Appeals of Texas. Waco.
    March 17, 1966.
    Rehearing Denied April 7, 1966.

      J. L. Rothchild, Herman W. Mead, Houston, for appellant.
    Liddell, Austin, Dawson & Sapp, W. Robert Brown, Houston, for appellee.
   WILSON, Justice.

Defendant appeals from a summary judgment in plaintiff’s action, as assignee, on a promissory note. Defendant, maker of the note, pleaded failure of consideration and that plaintiff was not a holder in due course. He now says the pleadings raise a fact issue precluding summary judgment under Rule 166-A, Texas Rules of Civil Procedure.

The judgment recites the court considered, among other matters, the deposition of defendant. The deposition, one portion of the record to be considered in determining whether summary judgment is proper under the Rule, is not in the record. It is impossible for us to decide from that incomplete record that the judgment was erroneous. Torrey v. Cameron, 74 Tex. 187, 11 S.W. 1088. It is presumed the omitted deposition established its propriety. Armstrong v. West Texas Rig Company, Tex.Civ.App., 339 S.W.2d 69, 73, writ ref. n. r. e.; Locke v. J. H. Marks Trucking Co., Tex.Civ.App., 318 S.W.2d 1; Stovall v. Scofield, Tex.Civ.App., 325 S.W.2d 221; McFarland v. Connally, Tex. Civ.App., 252 S.W.2d 486, 488.

Affirmed.


author: NYE, Justice.

text:
    Concepcion CASTRO, Appellant, v. HIGHLANDS INSURANCE COMPANY, Appellee.
    No. 192.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 17, 1966.

      Clarence N. Stevenson, of Fly, Cory, Moeller & Stevenson, Victoria, for appellant.
    Harry F. Maddin, of Cullen, Mallette, Maddin, Edwards & Williams, Victoria, for appellee.
   NYE, Justice.

This is a workmen’s compensation case. Plaintiff-appellant has perfected his appeal to this court from an order of the district court dismissing his cause of action for want of jurisdiction.

Prior to the submission of this cause in this court the parties announced that the case was to be settled. No decision has been made on the merits. On the 14th day of March, 1966, a joint motion was signed and filed by the appellant and appellee stating that a settlement agreement had been reached subject to the approval of the district court. The parties prayed that this court reverse and remand this case to the trial court so as to reinstate jurisdiction of said cause in the district court for the presentation and approval of such settlement agreement. The agreed motion further requested that a mandate issue immediately to the trial court under the provisions of Rule 442, Texas Rules of Civil Procedure.

This court has authority to act upon and grant this joint motion to reverse and remand. Southern Underwriters v. Evans, Tex.Civ.App., 112 S.W.2d 542; Mickelson v. Mickelson, 384 S.W.2d 230, Tex.Civ. App.1964, and cases cited therein; Eichelberger v. Orr, 392 S.W.2d 474, Tex.Civ. App.1965.

The judgment is reversed and the cause remanded to the district court of Jackson County, Texas, and the clerk is directed to issue immediately a mandate in accordance with the agreement of the parties herein. The costs of this appeal are assessed against appellant as agreed to by the parties.

The agreed motion to reverse and remand is granted.


author: McDONALD, Chief Justice.

text:
    Hunter FLORES, Individually and d/b/a Freeport Machine and Boiler Shop, et al., Appellants, v. GREAT AMERICAN INSURANCE COMPANY, Appellee.
    No. 4434.
    Court of Civil Appeals of Texas. Waco.
    March 31, 1966.
    Rehearing Denied April 14, 1966.

      Eastham, Watson, Dale & Forney, J. P. Forney, Jr., Joseph D. Jamail, John Gano, Houston, for appellants.
    Barrow, Bland, Rehmet & Singleton, David Bland, Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal by defendants Flores and Ruth Roberts from a summary judgment that plaintiff Great American Insurance Company has no obligation to defend Flores (or pay judgment) in a suit instituted against Flores by Ruth Roberts.

On October 2, 1962 William Roberts, an employee of Flores, working “in the course and scope of his employment as a seaman and a member of the crew of a winching barge * * * situated upon navigable waters near Freeport, Brazoria County, Texas”, was struck by a cable and knocked overboard into the water where he died.

Flores was covered by a policy of workmen’s compensation and employers’ liability insurance with Great American, which provided:

“Coverage A — Workmen’s Compensation. To pay promptly when due all compensation and other benefits required of the insured by the Workmen’s Compensation Law.
“Coverage B — Employers’ Liability.
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, Including death at any time resulting therefrom * * * by any employee of the insured arising out of or in the course of his employment by the insured * * ⅜»

The policy was endorsed:

“EXCLUSION OF MARITIME LIABILITY ENDORSEMENT
“It is agreed that the policy does not apply to injury, including death resulting therefrom, sustained by a master or a member of the crew of any vessel- (or by any person in the course of employment subject to the United States Longshoremen’s and Harbor Workers’ Compensation Act, U.S.Code (1946) Title 33, Secs. 901-49.)”

The policy was further endorsed reinstating coverage under the Longshoremen’s and Harbor Workers’ Compensation Act, but leaving “a master or member of the crew of a vessel” still excluded.

Additionally the policy provided (pursuant to Art. 8306, Sec. 12h Vernon’s Ann. Tex.Civ.St.) that terms of the policy in conflict with the Workmen’s Compensation Law are amended to conform to the law.

Thereafter, Ruth Roberts, widow and ad-ministratrix of William Roberts, deceased, filed suit against Flores to recover $350,-000 damages for William Roberts’ injuries and death. Such suit alleged that deceased’s injury and death occurred while he was working “in the course of his employment as a seaman and a member of the crew of a winching barge”; and were proximately caused by acts of negligence on the part of defendants.

Flores gave notice to plaintiff Insurance Company and called upon it to defend the suit. Great American declined to defend, and filed this case for declaratory judgment that it had no obligation to defend (or pay judgment).

Flores answered that the policy (Coverage B) provided that Great American would pay all sums which Flores should become legally obligated to pay because of injury or death of any employee arising out of the course of employment; and that Section 21, Article 8308 V.A.T.S. which provides that the insurance carrier will pay all damages on account of injury of an employee, if the employer shall have given the carrier notice of the action and an opportunity to defend same. Flores further pleads that the “Maritime Liability Exclusion” excluding from coverage any “master or member of the crew of any vessel” is void as contrary to Section 21, Article 8308 V.A.T.S.

The trial court granted plaintiffs’ motion for summary judgment (on the foregoing facts), and decreed and declared plaintiff Insurance Company had no obligation to defend Flores in suit brought against him by Ruth Roberts for the injury and death of William Roberts.

Defendants Flores and Ruth Roberts appeal, contending the trial court erred:

1) In holding that Section 21, Article 8308, V.A.T.S., does not require the insurance carrier to defend a suit brought against its assured by that assured’s employee’s administratrix, and to indemnify assured against any judgment obtained.
2) In granting summary judgment thereby holding the Marine Exclusion endorsement eliminated the employer’s liability coverage otherwise provided therein, and required by Sec. 21, Art. 8308, V.A.T.S.

Defendant Flores’ contract of insurance written by Great American provided: 1) Workmen’s Compensation coverage on Flores’ employees (in Coverage A); 2) Employers’ Liability coverage (in Coverage B).

Section 21, Article 8308 provides that if an insured (Flores) takes out compensation insurance, and notifies the insurance carrier of suit so that it can defend; then the carrier is obligated to pay any judgment against the insured.

The “Exclusion of Maritime Liability Endorsement” stating the policy does not apply to an injury sustained by a “master or member of a crew of any vessel,” is void as to defendant Flores’ Workmen’s Compensation coverage. But Flores had additional coverage, namely Employers’ liability coverage as set up in Coverage B. We think the exclusion valid as to this coverage; and that Coverage “B” could be and was narrowed by the agreement of the parties.

The suit filed against Flores by Ruth Roberts is not a suit seeking the benefits of the Workmen’s Compensation Act, nor is it a suit on the Workmen’s Compensation provisions of Flores’ policy of insurance. Ruth Roberts’ petition alleges that her suit is brought “under the provisions of 46 U. S.C.A., Section 688, commonly called the Jones Act”; further alleges that William Roberts, the injured employee of Flores, was “serving within the course and scope of his employment as a seaman and member of the crew of a winching barge vessel in navigation, powered by the ‘Bessie Lee’, and situated upon navigable waters near Freeport, Brazoria County, Texas”; that deceased’s injury and death were proximately caused by acts of negligence of defendants; and sought recovery of $350,000 damages.

In determining the duty of a liability insurer to defend a lawsuit, the allegations of complainant should be considered in the light of the policy provisions without reference to the truth or falsity of such allegations. Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., Tex.Sup.Ct., 387 S.W.2d 22.

Ruth Roberts did not allege a cause of action under the Workmen’s Compensation coverage, but under the Employers’ Liability coverage (Coverage B), to which the exclusion of the “master or member of the crew of any vessel,” is applicable and valid.

The judgment of the trial court is correct. Defendants’ points and contentions are overruled.

Affirmed.


text:
    Louis Berry HARDGRAVE et al., Appellants, v. TEXAS & PACIFIC RAILWAY COMPANY et al., Appellees.
    No. 16665.
    Court of Civil Appeals of Texas. Dallas.
    March 18, 1966.
    Rehearing Denied April 22, 1966.

      Geary, Brice & Lewis, W. S. Barron, Jr., Thompson, Knight, Wright & Simmons, Frank Finn, Jr., Dallas, for appellants.
    Jackson, Walker, Winstead, Cantwell & Miller, L. P. Bickel and Gerald W. Benson, Dallas, for appellees.
   CLAUDE WILLIAMS, Justice.

Appeal from a “take nothing” judgment in a personal injury action. On November 18, 1958 at approximately 11:15 p. m. Louis B. Hardgrave and Clarence T. Mc-Cleery, both employed by Valley Steel Products Company, were occupants of a White diesel truck proceeding in a northerly direction on South Lamar Street in the City of Dallas, Texas. The night was clear and the streets were dry. Hardgrave was driving the truck and McCleery was the passenger. A railroad track, commonly called the Dallas Belt Line, crossed South Lamar Street. At the point in question the railway track is in the form of a U-shaped curve. Leaving the Union Terminal Building the tracks proceed in a southeasterly direction, cross South Lamar Street and then swing in a northwesterly direction. The track is owned and maintained by the Southern Pacific Company as are the various signaling devices located at the crossing. Texas & New Orleans Railroad Company was a subsidiary of the Southern Pacific Company and, for purposes of convenience, both are referred to as Southern Pacific. The track is used almost exclusively by Texas & Pacific Railway Company. Hardgrave was aware of the existence of the railroad crossing, having crossed it various times in the past. A collision occurred between the the truck and a train operated by the Texas & Pacific Railway Company at the crossing which resulted in personal injuries to both Hard-grave and McCleery.

Hardgrave and McCleery brought this action against the Texas & Pacific Railway Company, the Southern Pacific Company and Texas & New Orleans Railroad Company seeking damages for the personal injuries sustained by them. The Travelers Insurance Company filed a plea of intervention seeking to recover workmen’s compensation benefits which it had paid to both Hardgrave and McCleery.

The case was tried before the court and a jury and submitted upon fifty-five special issues. The essential jury findings may be summarized thusly: (1) and (1A) that there was a collision between a truck driven by Hardgrave and the Texas & Pacific train at the South Lamar crossing on November 18, 1958; (2) that at the time and on the occasion in question the conditions surrounding the railroad crossing were such as to make it an extra-hazardous crossing; (3), (5) that Southern Pacific did not maintain gates or a flagman at the crossing but such failure was not negligence; (7) that Southern Pacific had sufficiently visible warning lights at the crossing; (9) that Southern Pacific failed to have a sufficiently audible warning bell at the crossing in question but (10) such failure was not negligence; (12), (13) that Southern Pacific failed to provide overhead lighting at the crossing in question but such failure was not negligence; (15), (16), (17) that Texas & Pacific was operating its train at a speed in excess of 12 miles an hour on the occasion in question and that such constituted negligence and a proximate cause of the collision in question; (18) that the operators of the Texas & Pacific train did not fail to sound the whistle on the locomotive in question; (20) that Southern Pacific did maintain a wigwag signal on the south side of the crossing which was in good working order (23) that the collision in question was not the result of an unavoidable accident; (24), (25), (26) that Hardgrave failed to keep a proper lookout and that such failure was a proximate cause of the collision but was not the sole proximate cause thereof; (27), (29), (30) that Hardgrave drove the truck at an excessive rate of speed which was a proximate cause of the collision but was not the sole proximate cause thereof; (31), (32) that Hardgrave failed to apply his brakes properly and that such was a proximate cause of the collision; (34-37) that a clearly visible electric signaling device was given to warn of the immediate approach of the train in question before the truck reached a point 15 feet from the nearest railroad track; that when the railroad engine was approaching within 1500 feet of the crossing such engine gave an audible signal before the truck reached a point 15 feet from the nearest rail and that by reason of its speed or nearness to the crossing, the train was an immediate hazard; (38-41) that the train was plainly visible before the truck reached a point 15 feet from the nearest rail and was therefore in a hazardous proximity so that the failure of the truck to stop within not less than 15 feet of the nearest rail was a proximate cause of the collision but was not the sole proximate cause thereof. The remainder of the issues had to do with the amount of damages.

Based upon this jury verdict the trial court originally rendered judgment in favor of the passenger McCleery against the defendant Texas & Pacific Railway Company in the sum of $68,436.35. The judgment denied Hardgrave any recovery against any of the defendants. Thereafter the trial court withdrew the original judgment and sustained defendants’ motion to disregard the jury’s answers to Special Issues 15, 16 and 17. Judgment was therefore finally entered denying any relief to either Hardgrave or McCleery against any of the defendants. Both plaintiffs, and the inter-venor, appeal.

Appellants predicate their appeal primarily upon the first two points of error wherein it is contended that the judgment of the trial court should be reversed and rendered in favor of appellant McCleery because the trial court was not authorized by law to disregard Special Issues IS, 16 and 17 since there was legally competent evidence to support those issues and the answers thereto. The authority of a trial judge to disregard particular special issue findings of a jury stems from Rule 301, Texas Rules of Civil Procedure. While this rule expressly provides that the court may, upon proper motion, disregard the answers to certain special issues and render judgment for the movant on the remaining portion of the verdict, the test as to whether such answers should be disregarded is whether there is any evidence to support the answers. The reviewing court must determine that there was “no evidence” of probative force on which the jury could have made its findings. Shelton v. Ector, Tex.Civ.App., 364 S.W.2d 425; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682; Davidson v. Methodist Hospital of Dallas, Civ.App., 348 S.W.2d 400. In determining the “no evidence” point we must view and interpret the evidence in the record in its most favorable light to the plaintiff and to the verdict rendered by the jury. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561; Shelton v. Ector, Tex.Civ. App., 364 S.W.2d 425; Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359.

Therefore, the principal question presented by this appeal is whether the record contains any evidence of probative force to support the jury’s findings in response to Special Issues Nos. 15, 16 and 17 relating to the speed of the train. Appel-lees, both in their brief and in oral argument before this court, concede that there is ample evidence in the record that the Texas & Pacific train was traveling at a greater rate of speed than 12 miles per hour in violation of the city ordinance of the City of Dallas and that such conduct was negligence. However, they contend that there is no evidence in the record to support the jury’s findings to Special Issue No. 17 to the effect that such negligence was a proximate cause of the collision. Having narrowed the question to that of speed being the proximate cause of the collision it is essential that we carefully review all of the record relating to this point. This we have done in the light of the well established law that the judgment of the trial court must be reversed if there is in this record before us evidence of probative value which, with the reasonable inferences therefrom, will support the jury’s findings of proximate cause. Hall v. Medical Building of Houston, 151 Tex. 425, 251 S.W.2d 497; Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359. Moreover, as was stated by the Supreme Court in the Biggers v. Continental Bus System case, supra, we must approach a determination of the question in the light of the announced rule of the Supreme Court that appellate courts are without authority to set aside jury verdicts, particularly on questions of proximate cause in damage suits, upon conflicting facts — the undisputed facts must be ample and clear, and the circumstances most exceptional to justify such action. Liberty Film Lines, Inc., v. Porter, 136 Tex. 49, 146 S.W.2d 982.

Appellees defend the trial court’s action in holding, in effect, that the speed of the train could not be a proximate cause of the collision as a matter of law upon the proposition that the crossing was already occupied by the train at the time Hard-grave drove the truck into the crossing. Appellants argue that this was not a situation of an “obstructed crossing” but was a case of an approaching train so that the jury’s answer concerning the speed of the train being a proximate cause of the collision was justified by the evidence. In view of these conflicting positions we deem it necessary and desirable to set forth the following excerpts from the record which, in our opinion, settle the issue.

There were only two eyewitnesses to the collision, Hardgrave and McCleery. Hard-grave was driving the truck, without a trailer, known as a “bob-tail” truck which had an overall length of from 15 to 18 feet. McCleery was sitting on the right side in the passenger seat. Hardgrave was driving at an estimated speed of 15 to 20 miles per hour as he approached the crossing and said that when he was within 100 to 150 feet from the crossing he looked in both directions as far as he could see but saw nothing. He said he then turned his eyes to the road because, “if you are driving a bob-tail truck, you cannot keep your eyes off the road too long; if you do, you are going to be off it, and that road is rough.” He said that when he arrived at a point which he estimated to be a distance of three or four truck lengths from the crossing he first saw the train. This would place him approximately 75 to 90 feet from the crossing. Upon seeing the train, he said he immediately applied his brakes and turned to the right in an effort to avoid it and the next thing he remembers is when he woke up in Parkland Hospital some time thereafter. On direct examination Hard-grave stated:

“Q. Mr. Hardgrave, when was the first time, or what brought to your knowledge that there was something going to happen, the first time?
“A. Well, the first knowledge I had was that train loomed up in front of me.
“Q. All right. What did you do?
“A. Got on my brakes and tried to stop.
“Q. Did you do anything else?
“A. Yes, sir. It seemed like I was trying to turn to the right. I don’t know whether I did or not. I can’t say whether I made it or not.
“Q. What happened after that, do you know?
“A. The next thing I knew I woke up in Parkland Memorial Hospital.”
* * * * * *
“Q. Do you remember anything about the train itself ?
“A. Yes, sir. It seems to have stuck in my mind, kind of a confused detail here, I remember seeing an egine it seems like, the back of an engine.
“Q. The back of an engine?
“A. Yes, sir.
“Q. Are you sure about that?
“A. Yes, sir. I’ve turned it over in my mind. I’m not sure, but it seems like I can remember the back of an engine.
“Q. Do you remember where it was coming from?
“A. No, sir.
“Q. Do you remember anything about how fast it was going?
“A. No, sir.
“Q. Do you remember seeing any lights, or anything of that nature?
“A. It’s in my mind, I don’t know where I got it from — I mean, it seems like I seen a light, a headlight of an engine, but I’ve turned it over in my mind, and I don’t know how I could have seen the back of an engine and a headlight at the same time.”
On cross-examination, he testified:
“Q. You’ve told the jury everything you remember about the accident?
“A. Yes, sir.
“Q. As a matter of fact, you claim you were about three truck lengths, or forty-five or possibly sixty feet away when you say you saw the headlight of the engine?
“A. Yes, sir. I know I seen the headlight of an engine. There is a light in my mind some place. Now Mr. Bickel, I don’t know where it come from or what happened, but—
“Q. You don’t know where the light came from or anything like that?
“A. No, sir, I don’t know where the train come from either.
“Q. You knew the crossing was there, didn’t you?
“A. Yes, sir.
“Q. You knew there was a wig-wag" there ?
“A. Yes, sir.
“Q. You don’t know whether the wigwag was working or not ?
“A. No, sir, I do not. I didn’t see it anyway.
“Q. Sir?
“A. I said, no, sir, I didn’t see it anyway. I don’t know if it was working or not.
“Q. You couldn’t say it wasn’t working?
“A. No, sir, I couldn’t say it wasn’t working.
“Q. As you approached the crossing, I assume there was nothing to alert you there was anything unusual?
“A. No, sir.”
******
“Q. Five or six years. And you think you were three truck lengths, forty-five or sixty feet, from that crossing when you saw the engine entering onto the crossing, don’t you ?
“A. Well, I say it might have been three or four truck lengths. Now I don’t know how far. I know it was awful close when it just loomed up in front óf me. I don’t know how far it was. I couldn’t say that, only that’s just an estimate.
“Q. You were in your own right hand lane, weren’t you sir?
“A. Yes, sir.
“Q. Saw the engine entering the crossing to your left, didn’t you?
“A. No, sir, I can’t say that I saw it entering the crossing at the left. I seen something to the left, I don’t know what it was.
“Q. You did see it enter the crossing from your left, didn’t you sir?
“A. I seen something on the left. Now, I—
“Q. Entering the crossing?
“A. In the crossing. It seems like it was an engine or train or something. I don’t know.”

Counsel for appellees introduced in evidence a portion of the deposition of appellant Hardgrave given prior to the trial, a portion of which is as follows:

“ ‘Q. All right, sir, did you ever see the train that you had the wreck with?
“ ‘A. Yes, sir, just before — just before it happened. I seen it just immediately before that and I got on my brakes and I could see that I was go-' ing to have — I couldn’t stop, I was going to have to turn or something, because it was just right on me, so I turned and got on my brakes, and that was the last I remember.
‘“Q. You turned right or left?
“ ‘A. Turned right.
“ ‘Q. What part of the train did you see when you saw it ?’ ”
“MR. BICKEL: Turning to page 16.
“ ‘A. I believe the back of the engine when I seen it.
“ ‘Q. Was the train completely over the crossing at the time?
“ ‘A. No, sir. It wasn’t — it was just —I seen I couldn’t, you know, miss it, so I got on my brakes. I don’t think the engine was across the tracks.
“ ‘Q. Across the tracks ?
“ ‘A. No, I mean across the road. Yes, sir, at the time I seen it.
“ ‘Q. Was part of it on the road ?
“ ‘A. No, sir, not when I seen it. Just right at the road.
“ ‘Q. Were any of the freight cars on the road?
“ ‘A. No, sir.’ ”
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“ ‘Q. All right. Can you tell us why you didn’t see the engine before you did?
‘A. Well, the best I can remember I glanced up and — ’
“MR. BICKEL: Page 19.
“ ‘ — I glanced up and down the track. I didn’t see anything and that road is kind of rough, and you ain’t going to keep your eyes off driving a bob-tail truck, you ain’t going to keep your eyes off the road too long anyway. If you do, you’re going to be off it, and that road is rough. I glanced each way and I didn’t see anything. I just kept going.
“ ‘Q. The headlight was on when you saw the engine?
‘A. It was right on — pretty near the road when I saw it.’
“MR. BRICE: Pretty near on the road.
“BY MR. BICKEL:
“ ‘Pretty near on the road when I saw it.’ And Mr. Besing says, ‘You mean the truck headlights or the train?’ Mr. Case says, ‘Train headlight, the headlight on the train.’ The witness says, ‘That’s what I’m saying, it was on.’
“ Q. (By Mr. Case) Was it one of those that flashes back and forth?
“ ‘A. I don’t remember that.
“ ‘Q. All right. How far from the track would you say you were when you saw the train?
“ ‘A. I couldn’t tell you that, the distance.
“ ‘Q. Well, were you as much as the length of your cab, or more than that? I mean your tractor, or more than that?
“ ‘A. I was more than the length of the tractor — I mean, I just don’t know how far it was.
“ ‘Q. I wouldn’t hold you to it exactly, but would you say it was one or two or three times the length of the tractor, or just your best estimate?
“ ‘A. I couldn’t say, but I would say it was more than three times the length of the tractor.
“ ‘Q. About how long would that tractor be?
“ ‘A. More than — got one hundred and sixteen inch wheel base. Say fifteen, eighteen feet. I don’t know.
“ ‘Q. All right. And you think you were more than three times that distance back of the track when you saw it?
“ ‘A. Yes, sir, I would say so.’ ”
⅝ ⅜ ‡ ⅜ ⅜ ⅝
“ ‘Q. And how far from the road do you say the head of the engine was when you first saw it?
“ ‘A. Well, it was almost on me.
“ ‘Q. Almost on the road ?
“ ‘A. Yes, sir, when I seen it.
“ ‘Q. And is it fair to say that you didn’t see the engine before you did is just because you weren’t looking in that direction ?
“ ‘A. No, sir. Like I say, I just glanced up and down the track, you know, and didn’t see anything, and then I just got my eye back on the road.’ ”

McCleery could not give very enlightening testimony concerning the facts surrounding the collision. He was looking at the road but said he heard no bell and saw no signal light. He said he could see across the crossing until about the last moment when he heard Hardgrave say: “There is a train.” And the next thing he recalls was being in Parkland Hospital.

The physical evidence shows that the front part of the truck came into contact with the train and the impact apparently caused the truck to turn completely around so that there was damage both to its rear and front. After the impact the truck was dragged to the right and completely turned around and while being dragged the truck had knocked down a signal pole.

Mr. Bright, the engineer who was operating the train, testified that he was on the right hand side of the engine looking out but that he never saw the approaching truck; that he did not know that there had been a collision until he was advised by a message after he had passed through Dallas. He took the train on into Mineóla but did not inspect the train for damage after he got off of the train. Mr. Bright testified that he was familiar with the crossing in question and knew that it was in the city limits of the City of Dallas which had regulated speed limits for trains at 12 miles per hour. He testified that at the time he passed this crossing and during the entire time he was making the U-curve he was operating the train at a speed of 25 miles per hour. Bright testified that the train consisted of 129 or 130 cars being pulled by several engine units. The cars would average about 50 feet in length. He testified that it would require a distance of seven, eight or perhaps as many as ten car lengths to stop a train like the one he was driving at a rate of speed of 25 miles per hour. Bright said that at the speed at which he was operating the train he could not, because of the obstructions to the South, or to his right, stop within the range of visibility if he had suddenly seen a truck or car proceeding North on Lamar Street.

The witness Holloway testified that he made an investigation of visibility and found that at 120 feet south of the crossing the maximum trackage visibility to the West is 96 feet; at 110 feet visibility is 114 feet; at 100 feet visibility is 150 feet and at a point 90 feet south of the crossing the maximum trackage visibility to the West is 234 feet.

Witness Morris, a signal engineer with appellee Southern Pacific, testified that as the train came down the track it passed over a circuit of electricity which caused a relay in another circuit which sets in operation the wig-wag signals at the crossing. This relay is at a point 983 feet from the crossing. He further testified that when a train is traveling at a speed of 25 miles per hour the motorist on the highway will receive less than half the period of warning that he would have received had the train been traveling within the speed limit of 12 miles per hour.

The train employees at Mineóla made an inspection of the train and estimated that the damage appeared to be some 12 to 17 cars back from the front of the engine. Cross-examination of the witnesses cast some doubt concerning this evidence of damage.

From a careful review of the entire record, and from the quoted testimony above, it is quite evident that we cannot say that this accident occurred when the crossing was obstructed by the train. Neither can we say, as a matter of law, that there was no evidence in this record to support the jury’s finding that the speed of the train was a proximate cause of the collision. While Hardgrave’s testimony is far from being satisfactory, it does, together with reasonable inferences, present the question for the jury’s determination whether the train was approaching the crossing at the same time Hardgrave approached it. The jury was justified in believing that if Hardgrave could see the the train when he was from 75 feet to 90 feet from the crossing (which would give Hardgrave a visibility of 234 feet to the West) that the train operator would have been in a position to have seen Hardgrave approach the track and had he been traveling the legal rate of speed of 12 miles an hour, instead of twice that speed, the engineer would have had an opportunity to stop the train or Hardgrave would have had an opportunity to cross ahead of the train. Moreover, a slow rate of speed would have prolonged the wig-wag signals and thereby have reasonably afforded approaching motorists an opportunity of seeing and heeding the same.

Our Supreme Court in Galveston, H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247, clearly enunciated the general rule with reference to the question of speed as being a proximate cause of a collision:

“Likewise, it is held that, where a person has been injured or killed at a much-traveled crossing, in close proximity to buildings or other obstructions, and at which there were obstructions to the view of the traveler or those operating the train, the question of whether the railroad was guilty of running its train at an excessive and dangerous rate of speed was an issue of fact for the jury to determine.”

Other cases discuss the same question and conclude that the issue of proximate cause in such a case is ordinarily one for the jury. See Texas & Pacific Ry. Co. v. Midkiff, Tex.Civ.App., 275 S.W.2d 841; Texas & N. O. R. Co. v. Leach, Tex.Civ. App., 49 S.W.2d 866; St. Louis Southwestern Ry. Co. of Texas v. Cockrill, Tex.Civ. App., 111 S.W. 1092; and Burlington-Rock Island R. Co. v. Ellison, 140 Tex. 353, 167 S.W.2d 723.

In our opinion the decision of this case is governed by the case of Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359, which involves a collision between a Continental bus which was being driven on its own proper side of the highway with an automobile which had been propelled across the highway and into the bus. The question of whether the speed of the bus could, as a matter of law, constitute a proximate cause of the collision, and the resulting injuries, was paramount in this appeal. The jury found that the driver of the bus was guilty of negligence in driving the same at a speed in excess of 55 miles an hour and that such was negligence and a proximate cause of the collision. The Court of Civil Appeals reversed the trial court’s judgment holding that, as a matter of law, none of the negligent acts of the bus driver, including speed, was a proximate cause of the collision. The Supreme Court, in an opinion by Justice Calvert (now Chief Justice of the Supreme Court) reversed the Court of Civil Appeals and held that the evidence presented an issue of fact as to whether speed was a proximate cause. After reviewing the various elements of proximate cause and also analyzing the testimony in great detail the Supreme Court held that if the bus had been traveling at a reasonable rate of speed the collision would not have occurred. Recognizing that a detailed analysis of opinion testimony of time and distance in reconstructing an automobile collision and the events immediately preceding it may not reflect the true situation, the court said: “ * * * it is a means of reconstruction which cannot be denied to a jury, and if that method of reconstruction will support the verdict of the jury our duty leaves us no alternative but to adopt it.” The court also said: “It is a sufficient predicate of Continental’s liability that the excessive speed of the bus was a substantial factor in bringing about the collision. Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355.”

When we make a reconstruction analysis of the facts set forth in this record, as was done by the Supreme Court in Biggers, we find a striking parallel situation which leaves no doubt in our minds but that the rule announced in Biggers is applicable here. Accordingly, we hold that there was evidence of sufficient probative force to justify the submission to the jury of Special Issues 15, 16 and 17 and also to justify the jury’s answers thereto. This being true, the trial court erred in disregarding and setting aside the answers of the jury to the numbered special issues and in rendering judgment against McCleery.

In this connection it must be observed that appellant McCleery was a passenger in the truck and there were no jury findings which convicted him of contributory negligence. Appellees make no contention that he was negligent in any manner which proximately caused the collision in question. Moreover, the jury refused to find various causes to be the sole proximate cause of the collision and therefore McCleery is not barred from recovery by the contributory negligence finding against the driver Hardgrave. Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379.

Appellees have presented seventeen cross-points of error which assert that if the trial court was in error in setting aside the jury findings, as contended by appellants, that the case should be reversed and remanded for a new trial and not reversed and rendered.

By their first and second cross-points ap-pellees say that if the district court erred in disregarding Special Issues 15, 16 and 17 then the judgment against appellant Mc-Cleery should be reversed and remanded for a new trial, and not reversed and rendered, because the evidence is factually insufficient to support the jury’s answers to said issues or such answers are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Having carefully analyzed the record as a whole we agree with appellees that the evidence is legally insufficient to support the jury’s answer to Special Issue No. 17 to the effect that the speed of the train was a proximate cause of the collision. For that reason we think that the trial court should have granted appellees’ motion for new trial based upon this assignment of error and hence we reverse and remand the cause for a new trial, rather than reverse and render the same in favor of McCleery, as requested by him.

Such disposition of this appeal renders it unnecessary that we discuss or pass upon appellants’ fourth point of error which complains of the failure of the trial court to submit an issue of improper lookout as against the operator of the train nor is it necessary that we pass upon and consider appellees’ cross-points, all of which deal with procedural matters which will probably not occur upon another trial of this case. It might be appropriate to comment that upon another trial of this case the trial court should refrain from submitting the damage issues in such a manner as to possibly allow the recovery of double damages and in this connection attention is directed to a comment by the Supreme Court in International & G. N. Ry. Co. v. Butcher, 98 Tex. 462, 84 S.W. 1052. See also Yessler v. Dodson, Tex.Civ.App., 104 S.W.2d 95, and Galveston, H. & S. A. Ry. Co. v. Perry, 36 Tex. Civ.App. 414, 82 S.W. 343.

Appellants bring forth no points assailing the “take nothing” judgment against Hardgrave nor the denial of liability against Southern Pacific and Texas & New Orleans Railroad Company. Since the two causes of action are severable, and since the suit of Hardgrave has been fully developed and settled, the judgments in these respects should be and are affirmed.

The judgment of the trial court denying appellant McCleery any recovery against Texas & Pacific Railway Company is reversed and here remanded for a new trial. The judgment of the trial court denying McCleery recovery against the Southern Pacific and Texas & New Orleans Railroad Company as well as denying recovery by appellant Hardgrave against either of appellees, is affirmed. All costs are assessed against appellee Texas & Pacific Railway Company.

Reversed and remanded in part and affirmed in part.

BATEMAN, J., disqualified and not sitting.


text:
    David K. HEAD, Appellant, v. CITY OF SHOREACRES et al., Appellees.
    No. 4444.
    Court of Civil Appeals of Texas. Waco.
    March 24, 1966.
    Rehearing Denied April 14, 1966.
    Bernard & Bernard, Donald R. Bernard, Houston, for appellant.
    Mauzy & Mauzy, D. B. Mauzy, Houston, for appellees.
   McDONALD, Chief Justice.

This is an appeal by plaintiff from a take-nothing judgment in a suit to require defendant City to issue plaintiff a building permit.

Plaintiff Head filed application for a permit to build a residence on the north 90 feet of Lot 12, Block 47 of West Shore-acres, in the City of Shoreacres. Such application was denied by the City “because the application for building permit does not meet our Zoning Ordinances”. Plaintiff appealed to the Board of Adjustment of defendant City which, after hearing, denied the appeal. Plaintiff thereafter filed the instant case to require defendant City to issue him the building permit, alleging defendant City’s Zoning Ordinances did not prohibit the house he sought the permit for, and that the City’s refusal to issue the permit was arbitrary, unreasonable, and capricious.

Trial was before the court without a jury, which rendered judgment that plaintiff take nothing. The trial court filed Findings of Fact substantially as above; and Conclusions of Law as follows:

1) Plaintiff had burden of proof to establish that defendant acted illegally in denying building permit.
. 2) Board did not act illegally if there was any substantial evidence affording reasonable support for its decision.
3) TKere was substantial evidence that plaintiff’s application did not meet all requirements established by the Zoning Ordinances of the City.
4) Therefore the Board did not act illegally in denying the permit.
5) City was entitled to verdict since plaintiff failed to discharge his burden of proof.

Plaintiff appeals on 5 points, contending the trial court erred in conclusions of law 3, 4 and S; and that the Board acted illegally in denying plaintiff the building permit.

The record reflects that plaintiff owned the north 90 feet of Lot 12, Block 47; and that such was 90 feet by 140 feet in size. Lot 12 of Block 47 is a lot approximately 140 feet wide and 358 feet deep on the west side and 405 feet deep on the east side, fronting on South Country Club Drive with Centre Avenue on the east side; and containing about V/2 acres.

The City of Shoreacres was originally platted in 1925 with Lot 12 of Block 47 as indicated on the Schematic Diagram. Plaintiff’s immediate predecessor in title attempted to replat Lot 12 into 4 lots; sold Lot 12D to plaintiff; and it was for Lot 12D that plaintiff sought the building permit. The City had refused plaintiff’s predecessor in title permission to split Lot 12 into smaller lots; and had regularly denied applications of other owners to replat lots in West Shoreacres. Plaintiff nor anyone else has ever received permission of the City to replat I ot 12, Block 47.

The City Zoning Ordinance requires erection of a house to face the street on which is located the shortest lot line. This would be South Country Club Drive as to Lot 12. Plaintiff seeks to build on the north 90 feet of Lot 12 facing Centre Avenue.

Article 974a, Vernon’s Ann.Tex.Civ.St. requires the approval of the City before platted lots can be replatted. Since the “replatting” of Lot 12 did not have the City’s approval, it was a nullity. Plaintiff’s proposed building does not conform to the City’s Zoning Ordinance as applied to Lot 12 (before the attempted replatting), and the permit to construct same was properly denied.

Plaintiff’s points and contentions are overruled..

Affirmed.


author: NORTHCUTT, Justice.

text:
    J. D. McPHAUL et al., Appellants, v. CITY OF LUBBOCK et al., Appellees.
    No. 7620.
    Court of Civil Appeals of Texas. Amarillo.
    March 28, 1966.
    Rehearing Denied April 18, 1966.
    Cade & Bowlin, Lubbock, for appellants.
    McWhorter, Cobb, Johnson & Cobb, Fred O. Senter, Jr., and George A. Staples, Jr., Lubbock, for appellees.
   NORTHCUTT, Justice.

This is an appeal from the denial of a temporary injunction in a suit brought by the plaintiffs, J. D. McPhaul and ten other persons, all tax payers, against the defendants, City of Lubbock, Lubbock Independent School District and their tax assessor and collector, seeking a permanent injunction against collection of taxes levied under an alleged void judgment of a board of equalization appointed jointly by the City and the School District. The plaintiffs will hereafter be referred to as appellants and the defendants as appellees. *

Appellants alleged numerous unlawful, discriminatory, confiscatory and arbitrary violations of the constitution and laws of the State of Texas by the board of equalization as to show that the collection of taxes was not equal and uniform; that all property was not taxed in proportion to its value; did not tax many items of property that were subj ect to taxation and thereby taxing appellants more than they should be taxed. Appellants sought a temporary injunction restraining the appellees from committing any and all of the alleged unlawful, illegal and arbitrary acts and from placing value upon the properties of appellants and from filing such tax roll and requiring the appel-lees to adopt a tax roll including the proper valuations of all properties uniformly arrived at as required by law. The trial court denied the temporary injunction and from that order appellants perfected this appeal.

Appellants present this appeal upon six points of error contending the court erred in refusing to enjoin or restrain temporarily, pending the outcome of the suit, the collection of appellants’ taxes which had been illegally and unconstitutionally assessed against their property; in refusing to enjoin, pending the outcome of the suit, the collection of taxes fraudulently assessed against appellants’ properties; in refusing to enjoin appellees from enforcing the void judgment of the board of equalization; in refusing to enjoin the collection of taxes against appellants’ properties which had never been assessed as provided by law; in refusing to enjoin the collection of taxes against appellants’ properties which had been assessed by an appraising firm and not by the official tax assessor and in abusing his discretion by refusing to grant a temporary injunction in the case.

It is undisputed in this record that appellees’ tax rolls were adopted and the tax plan for 1965 had been put into effect before appellants filed this suit seeking the issuance of the temporary injunction. In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549; Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589. Status quo would be requiring the appellees to leave the tax rolls and the tax plan for 1965 as they were adopted. That was not the condition appellants were seeking. If appellants had filed their suit before the tax plan had been approved and put into effect, a different matter would have been in effect. Appellants were seeking the proper remedy but were late in filing their petition.

If the allegations as alleged by appellants are true, but we do not pass on that issue, they would be entitled to such relief as they could show they were damaged; but that matter would be determined upon a final hearing and not in this temporary injunction hearing. It is stated in Whelan v. State, 155 Tex. 14, 282 S.W.2d 378 as follows:

"Of course petitioners cannot escape the payment of taxes because of the deliberate and arbitrary failure to tax bank deposits. ‘The government does not lose its right to taxes justly owing on one parcel of property, by reason of the failure of its officers, either negligently or designedly, to assess other property that is likewise taxable.’ City of Wichita Falls, v. J. J. & M. Taxman Refining Co., Tex. Civ.App., 74 S.W.2d 524, 530, writ refused; Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879. But petitioners do not seek to escape the payment of taxes; they seek only to require a revision of the assessed valuations of their property so that they will be required to pay only the amount that is justly due and owing.
“In State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 and City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, we recognized that a taxpayer was entitled to relief when by a deliberate and arbitrary preconceived plan of taxing authorities large amounts of property, owned by others, was omitted from the tax rolls. Once such a plan of taxation is put into effect, the taxpayer must assume the onerous burden of proving substantial injury, that is, that his taxes, by virtue of the omission, are excessive or substantially higher than they would have been if the omitted property had been on the rolls. City of Arlington v. Cannon, supra. It is thus that he may establish that his taxes are ‘within themselves excessive’ within the rule laid down in Sam Bassett Lumber Co. v. City of Houston, Tex.Civ.App., 194 S.W.2d 114,117-118, and approved by this court in the same case. 145 Tex. 492, 198 S.W.2d 879-880. It is only thus that he may secure his constitutional right to be taxed on an equal and uniform basis with others.”

The appellants are entitled to relief from a fundamentally erroneous plan or scheme of taxation. However, since appellants failed to avail themselves of the remedy of mandamus and injunction before the plan of taxation had been put into effect, the appellants have the burden on a final hearing of proving substantial injury. If apel-lants’ taxes and valuations are not excessive, even though the taxation plan be fundamentally erroneous, they are not entitled to relief. It is stated in City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, as follows:

“The Board of Equalization did not follow the statutory mandates for arriving at the value of property. It ignored market value as the basis for valuation. Its procedures in this respect were wholly unlawful and fundamentally wrong. It is now settled, however, that to obtain relief from taxes arrived at through the use of an arbitrary, illegal and fundamentally erroneous plan of valuation, the taxpayer must show substantial injury. Druesdow v. Baker, Tex.Com.App., 229 S.W. 493, affirmed Baker v. Druesedow, 263 U.S. 137, 44 S.Ct. 40, 68 L.Ed. 212; Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756; Lubbock Hotel Co. v. Lubbock Ind. School Dist., Tex.Civ.App., 85 S.W.2d 776, no writ history. We had occasion to write at some length on the subject in State v. Whittenburg, supra, and what was said there need not be repeated here.”

See also Milligan v. Corsicana Independent School District, Tex.Civ.App., 381 S.W. 2d 97 (N.R.E.) and the cases there cited.

Under this record we are of the opinion that since the plan of taxation had been put into effect prior to the filing of the petition herein the trial court was correct in refusing to grant the temporary injunction and appellants on a final hearing must show they were substantially injured. Judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Dolores Lopez BARRIE et vir, Appellants, v. Ida COSTELLO et vir, Appellees.
    No. 11379.
    Court of Civil Appeals of Texas. Austin.
    March 30, 1966.
    Rehearing Denied April 27, 1966.

      Runge, Marschall, Hall & McLaughlin, Pat Hall, San Angelo, for appellants.
    William E. Davenport, San Angelo, for appellees.
   HUGHES, Justice.

This case, as it reaches us, is a contest over the custody of Carla Yvonne Lopez, born December 21, 1956, the daughter of appellant, Dolores Lopez Barrie, whose maternal grandmother is appellee, Ida Costello.

The custody issue was submitted to a jury which answered (1) Dolores Barrie is not a fit and proper person to have the custody and control of Carla (2) Ida Costello and her husband are fit and proper persons to have the care, custody and control of Carla (3) It is to the best interest of Carla that she be in the care, custody and control of Victor Costello, Jr. and Carla’s grandmother, Ida Costello (4) It is not to the best interest of Carla that she be in the care, custody and control of her mother, Dolores Barrie (5) Dolores Barrie did not voluntarily abandon and desert Carla for a period of two years prior to March 8, 1962 (6) the jury answered the following issue “she did.” “Do you find from a preponderance of the evidence that for a period of two years before March 8, 1962, Dolores Barrie did not contribute to the support of Carla Lopez” commensurate with her ability.

Upon this verdict, judgment was rendered awarding the care, custody and control of Carla to Mr. and Mrs. Costello.

Appellants’ first point is that the court erred in awarding custody and control of Carla to appellees because it was neither pleaded nor proved that Carla was a dependent and neglected child within the terms of Arts. 2330-2337, inc., Vernon’s Ann.Tex.Civ.St.

In support of this point appellants cite DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, Poss v. Anderson, Tex.Civ.App., 188 S.W.2d 726, Amarillo, writ ref., w. o. m., Oldfield v. Lester, Tex.Civ.App., 188 S.W.2d 722, Waco, n. w. h., and Daniel v. Watson, Tex.Civ.App., 249 S.W.2d 281, Waco, n. w. h.

We will not discuss these cases for the reason that it is obviously not the law that custody of minor children can only be litigated within the limitations of these statutes. To so hold would deny to all except residents of the county where the child was the authority to institute a suit for its custody. Art. 2331, supra. It would also have the effect of being in conflict with a multitude of custody cases where the issue of the child being dependent or neglected was not present. Our experience is that parents who neglect their children and permit them to become dependent as defined in the above mentioned statutes usually do not fight for their custody. It is also our experience that in pure custody cases each party tries to show how much more he could do for the child than the other party could do. This is hut to say that in child custody cases it is the best interests of the child which is involved and litigated, and these cases may or not present issues of statutory neglect or dependency of the child. We quote from Davis v. Sears, 35 S.W.2d 99, Tex.Comm, of Appeals, a case which did not cite or discuss the above statutes, as follows:

“Under the common law, as well as the statute law of Texas the parents have the natural right to the custody and control of their child, and, in case of the death of one parent, the surviving parent has the right to its custody. Castro v. Castellanos (Tex.Com.App.) 294 S.W. 525. But the parents’ right to the custody of their child, however, is not absolute, but is subject to judicial control, when the interest of the child demands it, and must yield, where the real and permanent interest of the child demands a different disposition.
* ⅜ * ⅝ ⅜ *
As a basis for the exercise of judicial control over the minor, in the absence of pleading and proof, that the parents are unfit to have the care and custody, of their child, as in this case, there must be pleading and proof, to the effect that the parents have voluntarily relinquished their natural and statutory right to have this care and custody.
* * ⅝ ⅝ ⅜ *
The authorities of this state, as well as those of other states, are almost uniform in holding that, in a contest for the custody of a minor, that person is entitled to such custody in whose custody the in= terest and welfare of the child will be best promoted.”

See Scozzari v. Curtis, Tex.Civ.App., 398 S.W.2d 819, Fort Worth, n. w. h.

Appellants’ first point is overruled.

Appellants’ second point is that there was no pleading or proof to sustain the findings of the jury that it was for the best interest of Carla that she be placed in the custody of appellees and not in the custody of appellants, and that the evidence in this respect was “insufficient.”

Appellants filed this suit which was in the nature of a habeas corpus proceeding but in which specific facts were alleged. Appellees denied these facts and alleged that appellants were unfit persons to have the custody of Carla and that, conversely, they, appellees, were fit persons to retain her custody and to be awarded her permanent custody. Facts supporting these allegations were alleged. Appellees also alleged that Mrs. Barrie had voluntarily relinquished permanent custody of Carla to Mrs. Costello. We find the pleadings sufficient.

The evidence in this case is very lengthy, repetitious and presents a sorry spectacle of bitterness and controversy between a mother and daughter over the custody of the granddaughter, Carla.

There is testimony that Mrs. Barrie was first married to a Robert Lopez, to which marriage Carla was born. This marriage was dissolved by divorce in 1957 in Albuquerque, N. M. The record does not disclose any further information about Mr. Lopez. After the divorce, Mrs. Barrie came to San Angelo, with the baby, and lived with her mother and Mr. Costello, where she attended business school for about two and one half months. She then went to Las Cruces, N. M. and stayed with her mother’s sister. She stayed there a short while and left her baby there and went to Los Angeles to look for work. In Los Angeles she stayed with her mother’s aunt. After three months she returned to Las Cruces for Carla and returned to Los Angeles. In 1958 Mrs. Barrie left Los Angeles and went to Hot Springs (Truth or Consequences) N. M. where she stayed with her mother’s sister. She stayed in this town for about three months and then went to Alamogordo, N. M. where she and Carla stayed with her mother’s sister. This stay was for three weeks. She and Carla left Alamogordo for Miami, Florida with one Don Melton, with whom Mrs. Barrie lived without ceremonial marriage for the next three or four years. There is testimony that Don Melton, during this time, had a living wife.

Mrs. Barrie telephoned Mrs. Costello from Florida in 1958 and we quote Mrs. Costello’s testimony concerning this conversation and immediate subsequent events:

“A She told me that she could no longer take care of Carla and that there was no place where she could put her, and for me to please come and get her; and I told her I wanted to be sure she was going to let me have her because I did not want to make a trip, and I wanted her to be sure and make up her mind that she was giving her to me.
Q That was about the 5th of August, of what year?
A Of ’58.
Q Now, did you go to Florida to get Carla at that time?
A Yes, sir.
Q And what condition did you find Carla in when you found her?
A Carla was staying with a neighbor, and the child was all full of sores and she looked undernourished, and she didn’t have any clothes.
Q What was Dolores’ words to you when she handed the child to you?
A She picked up the child and she gave her to me, and she said, ‘Ida, she’s all yours.’ ”

Carla has lived with Mr. and Mrs. Costello since she was brought from Florida in 1958. There is no question but that Carla has been well cared for and that she has had a happy life in the Costello home. There were six children besides Carla in the home, four being the Costello’s own and two being Mrs. Costello’s by a previous marriage which was dissolved by death. Mrs. Costello was 48 years of age at the time of trial. The Costello family is a Christian, church going, school going family.

There is a conflict in the testimony as to whether Mrs. Barrie contributed to the support of Carla during the years she stayed with her grandmother.

In February 1963, Mrs. Barrie and Don Melton parted ways. A month later she met Bill Barrie, and they were married in August 1963.

Mr. Barrie appears to be a good business man. His earnings are sufficient to support his wife and Carla and he is willing to do so. The record shows, however, that he has been married twice before and that he is presently under a probated sentence for grand larceny committed in the State of California.

In June of 1964, the Costellos and Carla went to Miami for the wedding of their son Victor. The Barries also lived in Miami. While in Miami there were the usual wedding parties and, it seems an unusual amount of drinking, except Mrs. Costello did not drink. The Costellos stayed with the Barries until the night of the wedding when a row caused them to leave in the middle of the night and seek shelter at a motel. Mrs. Costello testified that Mr. Barrie literally kicked her out of his home. The next day Mrs. Costello called her daughter, Mrs. Barrie, and asked if she wanted to come and tell them goodbye as they were returning to San Angelo. Mrs. Barrie, when she learned where her mother was staying, preferred kidnaping charges against her mother and stepfather, had them arrested and incarcerated. After three hearings before Florida Judges, the charges were dismissed and the Costellos were permitted to return to Texas with Carla.

Witnesses who testified to the good standing, reputation and character of the Costellos and that they were fit and proper persons to be awarded custody of Carla were a neighbor, Mrs. Deane Webb, Edd B. Keyes, County Judge of Tom Green County, Clay Hudson, a business man, Jerry Acosta, a neighbor, Homer Goode, Chief Deputy Sheriff of Tom Green County, Reverend Roy Lowe, Pastor of Fort Concho Baptist Church, Gerald Black, Deputy Sheriff of Tom Green County and former District Supervisor for the Texas Liquor Control Board, Aurelia Acosta, a neighbor, Daniel Alenran, Pastor of the First Latin American Baptist Church and Cecil Turner, Tom Green County Sheriff.

It is our opinion that the evidence, partially summarized above, supports the findings of the jury which are challenged under these points.

It is never easy or pleasant to deprive a mother of her children and seldom, if ever, are we sure that we are right when this is done. It is not our view that a mother should never be forgiven for past mistakes or that she should never be permitted to reshape her life so as to claim rights of motherhood which she has lost. We believe that the effort made by Mrs. Barrie to recover custody of Carla is commendable, although some of the means employed were not. This effort, in our opinion, demonstrates that Mrs. Barrie realizes her responsibilities as a mother and realizes the magnitude of her loss. The jury, upon adequate evidence, has found that other rights have intervened and that Mrs. Barrie has lost her right to claim her own. The jury, under the evidence, had the right to make this decision. We respect it and uphold it. Accordingly, we overrule the point under discussion.

Appellants’ last point is that there is no evidence and that the evidence is “insufficient” to support the jury finding that Mrs. Barrie was not a fit and proper person to be awarded the custody of Carla. We overrule this point. The material facts bearing on this issue have been stated above.

We affirm the judgment of the trial court.

Affirmed.


author: MURRAY, Chief Justice.

text:
    The STATE of Texas, Appellant, v. ALICE COUNTRY CLUB, INC., Appellee.
    No. 14453.
    Court of Civil Appeals of Texas. San Antonio.
    March 30, 1966.

      Waggoner Carr, Atty. Gen., Woodrow Curtis, Hawthorne Phillips, T. B. Wright, Carroll R. Graham, Asst. Atty. Gen., Austin, for appellant.
    David A. Grose, Alice, for appellee.
   MURRAY, Chief Justice.

Appeal from Jim Wells County.

This suit was instituted by the State of Texas under the Declaratory Judgments Act, Art. 2524 — 1, Vernon’s Ann.Civ.St., against the Alice Country Club, Inc., a corporation, seeking to construe a certain “RIGHT OF WAY DEED” dated January 27, 1958, in which the State of Texas is grantee and the Alice Country Club, Inc., is grantor, conveying the 1.120 acres of land here involved, and further seeking to have the court declare a certain reservation in the deed to be null and void as being repugnant to the grant in said deed; said reservation being as follows, to-wit:

“It is understood and agreed that all trees growing upon, the tract of land covered by this instrument shall be left in tact and in no way disturbed by Grantee herein, its successors and assigns; and it is further understood and agreed that the present level of the surface of the ground on said Easement will be approximately maintained and that no material change in said level will be made by Grantee herein, is successors and assigns.”

The Alice Country Club, Inc., filed a motion for a summary judgment in its favor against the State. The trial court granted this motion and entered judgment accordingly, from which judgment the State has prosecuted this appeal.

The deed here involved conveyed to the State of Texas 1.120 acres of land to be used in widening State Highways Nos. 44 and 359 west of Alice, Jim Wells County, and contained the above reservation.

After the execution of the deed on January 27, 1958, the State, in October, 1958, caused a condemnation proceeding to be filed in its name against the Alice Country Club, Inc., for the express purpose of acquiring fee simple title to the land, by condemning and taking the rights reserved by the Country Club under the terms of its Right of Way Deed to the State.

This condemnation proceeding was heard before the special commissioners appointed by the County Judge of Jim Wells County, and their award was filed on January 12, 1959. The State appealed from this award only on the ground that “The amount of said award was grossly excessive.” That appeal was not prosecuted by the State, and after some four and one-half years the Country Club moved to dismiss the appeal. After notice and hearing, the County Judge on May 7, 1964, entered an order dismissing the appeal, and thereafter on December 17, 1964, judgment was signed and entered confirming the award of the special commissioners, and adopting the same as the judgment of the court, giving and granting the State fee simple title to the strip of land.

On December 1, 1964, the State filed this suit for declaratory judgment, contending that these same reservations in the original deed were void as being repugnant to the purpose of the deed.

The State having elected to bring a condemnation proceeding to take all of the rights reserved by the Country Club in its right of way deed to the 1.120 acres of land, and having prosecuted that proceeding to final judgment, and having fully recovered such rights, there was no further dispute between the State and the Country Club which would call for a declaratory judgment.

When the State brought the condemnation proceeding and took the rights reserved by the Country Club, paid the award and proceeded to use the land to construct its highway, the question of whether the reservation in the deed was repugnant to the intention of the parties to the right of way deed, was rendered an academic and moot question and there was no basis for a declaratory judgment.

This suit is in the nature of a collateral attack upon the condemnation proceeding. The State, by bringing the condemnation proceeding against the Country Club, admitted that the Country Club had certain rights in the land to be condemned and after the State has prosecuted the proceeding to a final judgment, the matter is finally adjudicated and the State is estop-ped to have it again passed upon by a court. In 22 Tex.Jur.2d, § 291, p. 409, it is stated: “The title of the landowner is assumed; he need not, therefore, ordinarily prove it in condemnation proceedings.”

The facts here are undisputed and the trial court properly refused the State a declaratory judgment and granted the Country Club a summary judgment.

Accordingly, the judgment of the trial court is affirmed.

BARROW and CADENA, JJ.S concur.


author: CADENA, Justice.

text:
    John R. ZOROLA, Appellant, v. BISHOP & SON, Appellee.
    No. 14476.
    Court of Civil Appeals of Texas. San Antonio.
    March 23, 1966.
    Rehearing Denied April 20, 1966.

      Pepos S. Dounson, San Antonio, for appellant.
    Hubert W. Green, Jr., Fred Clark, San Antonio, for appellee.
   CADENA, Justice.

Appellant, John R. Zorola, sued appellee, Bishop & Son, contractor, for cancellation of a note and a mechanic’s lien contract executed by appellant in favor of appellee, or, in the alternative, for damages for breach of contract. Appellee filed a cross-action seeking full recovery on the note in the sum of $3,350.00, with foreclosure of the mechanic’s lien, or, in the alternative, for recovery on the basis of quantum me-ruit, alleging the reasonable value of the work performed by it to be $3,350.00.

The mechanic’s lien contract provided that in the event of non-completion of the work appellee would be entitled to recover, and to have a lien for, the full contract price, less the amount necessary to complete the work according to the plans and specifications. The contract recited that appellee was to “build, construct and complete, in a good and workmanlike manner, according to plans and specifications agreed upon by Parties hereto, and to furnish and provide all labor and material to be used in placing a permanent and valuable improvement upon the below described property, to-wit: one house formerly located at 214-McLeory; one house formerly located at 510 E. Lubbock; one house formerly located at 305 McKay.” There were no written plans and specifications, the agreement relating to the details of the work to be done by appellee being oral.

In answer to appellee’s cross-action, appellant alleged that appellee failed to perform the work as agreed, pointing out seven specific instances of such alleged failure.

In answer to special issues, the jury found that appellee had agreed to erect front porches on two of the houses in question, and that the reasonable cost of erecting front porches on such two houses would be $225.00. The jury further found that appellee had not substantially performed its obligations under the contract, and that the reasonable value of the work done by appel-lee was $2,500.00.

The trial court entered judgment for appellee on the cross-action in the amount of $3,125.00, with interest thereon at the rate of 10% from June 1, 1964, together with attorney’s fees in the sum of $312.50. The judgment also provided for foreclosure of the mechanic’s lien.

The case is before us without a statement of facts or bills of exception. There is nothing in the record to indicate that appellant excepted to the sufficiency of ap-pellee’s pleadings, objected to the admission of testimony, requested the submission of special issues, or objected to the submission of special issues.

Appellant first contends that the judgment of the trial court is not supported by the pleadings, since appellee’s cross-action contained no allegations relating to the partial recovery clause of the contract; no allegations as to the amount reasonably necessary to complete the improvements according to the plans and specifications; and no prayer for recovery of less than the contract price. Appellant relies on Murphy v. Williams, 103 Tex. 155, 124 S.W. 900 (1910) ; Galbraith-Foxworth Lumber Co. v. Long, 5 S.W.2d 162 (Tex.Civ.App.1928, wr. ref.) ; and Mathes v. Williams, 134 S.W.2d 853, (Tex.Civ.App.1939, no writ).

The Murphy, Long and Williams cases lend support to appellant’s theory. However, all three cases were decided before the adoption of our present Rules 67 and 90, Texas Rules of Civil Procedure. Prior to the adoption of these rules, our Courts exhibited a strong tendency to confine the parties to the strict letter of their pleadings. It is apparent that Rules 67 and 90 give voice to a far different philosophy. The present attitude is aptly expressed in the opinion of Justice Pope, speaking for this Court, in Gadd v. Lynch, 258 S.W.2d 168, 169-170, no writ, as follows:

“If the proof did not conform to the pleadings, appellants are in no position to complain. The record before us reflects no request for additional findings and conclusions, no objection to the evidence, no bill of exception, and no statement of facts. While the case was tried as a non-jury case, the rule is stated by McDonald, Texas Civil Practice, § 12.07:
“ ‘The parties may waive their right to have the trial confined to the area mapped out by the written pleadings. Such a waiver is established by the concurrence of two conditions: first, that the parties have, by evidence admitted without objection being interposed, fully developed controlling issues outside those raised in the written pleadings; and secondly, that the parties have permitted special issues upon such unpleaded grounds of recovery or defense to be inserted in the charge without interposing any objecton on the ground that such special issues go beyond the pleadings.’
“Barry v. Patterson, Tex.Civ.App., 225 S.W.2d 864, 869 expresses the same idea
“‘Our Supreme Court has gone fully into the construction of Rule 67, T.R. C.P., and has held that where a defendant wholly fails to file an answer, if the parties appear and try the case on certain issues without any objection of plaintiff that defendant has filed no answer, the lack of pleadings may not be raised for the first time in the appellate court. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562. While the cited case was tried without a jury, we can perceive of no reason why it would not apply in jury cases; nor do we believe a plaintiff could, under our procedure, impliedly consent that an issue be tried without written pleadings, permit such issue to be submitted to the jury without objection, speculate on the result and when the issue is found against him, effectively raise the question of no pleading by motion for new trial.’ Rules 67, 90, T.R.C.P.; Taylor v. Jones, Tex. Civ.App., 244 S.W.2d 371; Benham v. Southern, Tex.Civ.App., 242 S.W.2d 682; Jones v. Mask, Tex.Civ.App., 196 S.W.2d 693.”

Here the jury found that the work had not been completed, in that appellee had failed to equip two of the houses with front porches, and that the cost of completing such work would be $225.00. Appellant’s pleadings established the existence of the partial recovery clause in the contract. All facts necessary to the partial recovery by appellee were thus established or found by the jury without objection by appellant.

Appellant next insists that the judgment cannot be sustained on a quantum meruit basis under the record in this case. The judgment of the court clearly reflects that it is not based on quantum meruit, but on the written contract and promissory note. The amount awarded, $3,125.00, is, as appellant points out in his brief, the amount of the note less the reasonable cost of building front porches on two of the houses. The judgment, therefore, follows that language of the partial recovery provisions of the contract. Had the court intended to aliow recovery on a quantum meruit basis, it clearly would have rendered judgment for appellee in the sum of $2,500.00, the amount which the jury found to be the reasonable value of the work performed by appellee.

The allowance of interest and attorney’s fees was also proper, since the judgment is based on the note and contract, and not on quantum meruit.

The judgment is affirmed.