author: CALVERT, Chief Justice.

text:
    TEXAS EMPLOYMENT COMMISSION et al., Petitioners, v. Ronald L. HAYS, a Minor, Respondent.
    No. A-8925.
    Supreme Court of Texas.
    Oct. 3, 1962.

      Will Wilson, Atty. Gen., Austin, Sam Lane, Ernest Fortenberry, E. E. Palmer, Asst. Attys. Gen., Austin, for petitioners.
    Sam Houston Clinton, Jr., Austin, for respondent.
   CALVERT, Chief Justice.

Eligibility of respondent Hays for benefits under the terms of the Unemployment Compensation Act, Article 5221b — 1 et seq., is the sole question presented by the appeal. He was ruled ineligible at all hearing levels of the administrative agency, but has been ruled eligible by the Court of Civil Appeals, 353 S.W.2d 924. We reverse the judgments of the Court of Civil Appeals and trial court and render judgment that the plaintiff take nothing.

The eligibility of Hays turns on whether, under a proper construction of the statute, he was “available for work” during the period for which he seeks benefits. The appeal is from a judgment of a county court at law, but this court has jurisdiction because the construction of the statute is necessary to a determination of the case. Articles 1728 and 1821.

At all times material to this decision Hays was a full-time student in McCallum High' School, Austin. His regular school hours were from 8:30 a. m. to 3:30 p. m. In June 1958 he secured’ part-time employment with H. E. Butt Grocery Company. He remained in that employment as a grocery sacker and checker until it was terminated in the fall of 1959. He worked from 5 p. m. until 9 p. m. on school days and all day on Saturdays. When he registered with the Employment Commission he limit- ■ ed his availability for work to hours after school and on Saturdays. He testified on the trial that he would not have accepted full-time employment and that he would not have quit school to take a job. It is admitted that Hays had earned sufficient wage credits to be qualified for benefits and that' he was not otherwise disqualified. Thus, as stated above, the only question to be determined is whether under a proper construction of the statute he was eligible for benefits.

Eligibility under the Act is controlled by Article 5221b-2. The particular part of the Article which is pertinent to the question before us reads as follows:

“An unemployed individual shall be eligible to receive benefits with .respect to any benefit period only if the Commission finds that:
“(a) * * *
“(b) * * *
“(c) * * *
“(d) He is available for work;
“(e) ⅝ * *
“(f) * * ⅜.”

Because of the restrictions placed by Hays on the hours he could or would work, the Commission found that he was not “available for work” as contemplated by the statute. Reversal of the decision by the Court of Civil Appeals was predicated on its holding that Hays was available for work at the same hours of his previous employment in which he had become qualified for benefits through earned wage credits. If the Commission’s conclusion was correct, it is immaterial that it may have proceeded to the conclusion on an er'roneous theory or may have given an unsound reason for reaching it. Railroad Commission v. Magnolia Petroleum Co., 130 Tex. 484, 109 S.W.2d 967, 970; Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84.

Ineligibility is to be distinguished from disqualification, although the two may sometimes seem to overlap. 30 Texas Law Review 735, 740-743. Disqualifications are provided in Article 5221b-3. An applicant may meet all requirements of eligibility for benefits but be disqualified from receiving them for a stated period for any of the reasons set out in Article 5221b-3. One disqualification is that the applicant “has failed, without good cause, either to apply for available, suitable work when so directed by the Commission or to accept suitable work when offered him * * *.” It is this disqualification which seems to overlap ineligibility. An applicant is ineligible for benefits when, for personal reasons, he initially lays such restrictions on his availability for suitable work as effectively to detach himself from the labor market of the community. If no such restrictions are laid initially, the applicant may later become disqualified for benefits, or continuing benefits, by refusing, for the same reasons, to apply for, when directed, or to accept suitable work. Courts have been inclined to refer to an applicant who is denied benefits in either of the two instances as not being “available for work.”

The phrase, “available for work,” obviously is ambiguous. It is not defined in the Unemployment Compensation Act. Any effort to define it in language covering every conceivable fact situation would require such generalities as to leave the definition less certain in meaning than the phrase itself. It is usually said to mean “willing, able, and ready to accept suitable work.” See 55 Yale Law Journal 124; 30 Texas Law Review 735-740. It is also generally recognized that to be available for work an applicant “must be genuinely attached to the labor market.” Ibid.

We are concerned in this case with the meaning of the phrase as related to an applicant who lays restrictions on the hours at and during which he is willing and ready to work. In its broadest sense it could be interpreted to make eligible for benefits all who are willing and ready to accept suitable work for only brief fixed periods each day, each week, each month, or at fixed irregular times. In its narrowest sense it could be interpreted to make eligible only those who are willing and ready to accept suitable work for more than eight hours each working day and at any hours of the twenty-four hour day. Neither of those interpretations would seem to comport with the spirit of the Act or with the realities of industrial and business employment.

All of the States of the Union have Unemployment Compensation Acts. Every Act requires, in one form or another, that to be eligible for benefits an applicant be “available for work.” 28 Minnesota Law Review 387, 390. In most jurisdictions where the problem has reached the courts the tendency has been toward a strict construction of the Act and thus to deny benefits to those who for personal reasons, or for reasons unrelated to the work, place restrictions on the hours at which they are ready to work.

There are a number of cases in which courts of other jurisdictions have ruled ineligible applicants who restricted their readiness to work to particular work shifts. Leclerc v. Administrator, Unemployment Compensation Act, 137 Conn. 438, 78 A.2d 550; Lukienchuk v. Administrator, Unemployment Compensation Act, 23 Conn.Sup. 85, 176 A.2d 892; Ford Motor Co. v. Michigan Unemployment Compensation Commission, 316 Mich. 468, 25 N.W.2d 586; Swanson v. Minneapolis-Honeywell Regulator Co., 240 Minn. 449, 61 N.W.2d 526; Squires v. Unemployment Compensation Board of Review, 172 Pa.Super. 424, 94 A.2d 172; Mills v. South Carolina Unemployment Compensation Commission, 204 S.C. 37, 28 S.E.2d 535; Goings v. Riley, 98 N.H. 93, 95 A.2d 137; Moore v. Commissioner of Employment Security, 197 Tenn. 444, 273 S.W.2d 703. The applicants in most of the cited cases were women who restricted their readiness to work to a particular shift or shifts because of domestic or family responsibilities requiring that they be at home during other shifts. In each it was held that because of the restriction the applicant was not “available for work.” This line of cases has been rather severely criticized as losing sight of the social objectives of the Act. See 28 Minn.Law Review 392-407. A more liberal approach to the problem of shift workers was taken in Tung-Sol Electric Inc. v. Board of Review, 35 N.J.Super. 397, 114 A.2d 285, perhaps because of a difference in the wording of the statute. The Superior Court of New Jersey held that a woman applicant was available for work even though because of domestic obligations she limited her readiness to work to a particular shift.

Courts considering the problem differ as to whether an applicant, refusing to work on Saturday because of religious beliefs, is available for work. The Ohio court held in Kut v. Albers Super Markets, 146 Ohio 522, 66 N.E.2d 643, that a claimant imposing such restrictions was not available for work, but the Michigan court in Swenson v. Michigan Employment Security Commission, 340 Mich. 430, 65 N.W.2d 709, and the North Carolina court in In Matter of Miller, 243 N.C. 509, 91 S.E.2d 241, held claimants eligible for benefits in spite of the restriction.

There are other isolated types of cases involving claimants who laid time or hour restrictions on their readiness to accept suitable work. A claimant who had been a restaurant employee for many years and who restricted his readiness to work to five hours a day, from 10:30 a. m. to 3:00 p. m. or from 12 noon to 5 p. m., was held not to be available for work. Schmahman v. Corsi, 278 App.Div. 625, 101 N.Y.S.2d 991. A claimant who had worked in an ordnance plant and who, upon moving to a small town, limited her readiness to work to a certain kind of work and to daylight hours was held not to be available for work. Hunter v. Miller, 148 Neb. 402, 27 N.W.2d 638. A claimant who had worked during daytime hours and had attended law classes during evening hours and who, because of a statutory requirement for serving as a law clerk for six months as a condition precedent to admission to the bar, restricted his readiness to work to hours which would not conflict with his clerkship, was held not available for work. Chaharyn v. Department of Employment Security, 85 R.I. 75, 125 A.2d 241. This decision is criticized in a note in 31 Tulane Law Review 70S. A claimant who was a seasonal worker in a flower nursery and restricted her readiness to work during the off season to the hours of 7 a. m. to 5 p. m. was held not available for work. Mississippi Employment Security Commission v. Blasingame, 237 Miss. 744, 116 So.2d 213.

There are but few reported cases involving claimants who were students. In Northup v. Administrator, Unemployment Compensation Act, 148 Conn. 475, 172 A.2d 390, a claimant who attended a culinary institute from 8 a. m. to 2:40 p. m., had worked from 3:30 p. m. to 11:30 p. m., and who refused suitable work which would conflict with his school hours, was held not available for work. The court said the claimant was not entitled to benefits because he had “limited his availability for work for a personal reason unrelated to his employment.” Most of the court decisions dealing with student claimants are by the Superior Courts (intermediate appellate courts) of Pennsylvania. In Lovich v. Unemployment Compensation Board of Review, 189 Pa.Super. 529, 151 A.2d 647, the court held that by restricting his availability for work to hours that would not conflict with his regular schedule of classes from 8 a. m. to 2:20 p. m. a student in a teacher’s college “detached himself from the labor market.” To the same effect, see Bates v. Unemployment Compensation Board of Review, 191 Pa.Super. 266, 156 A.2d 589, and Collins v. Unemployment Compensation Board of Review, 191 Pa.Super. 273, 156 A.2d 593. The same result was reached in the case of a student in a technician training school whose class hours were from 8 a. m. to 2 p. m., Majoris v. Unemployment Compensation Board of Review, 192 Pa.Super. 269, 162 A.2d 86, and in the case of a student in a school of dentistry whose class hours were from 9 a. m. to 5 p. m., Baker v. Unemployment Compensation Board of Review, 193 Pa.Super. 460, 165 A.2d 103, in spite of the fact that in each case the claimant offered to adjust his class hours to permit his acceptance of daytime employment. Following the cited cases as precedents, the court denied benefits to a married student, 31 years of age and the father of three children, who had been in full-time employment for twelve years during which time he had successfully completed his freshman, sophomore and junior years at the University of Pittsburgh. The claimant offered to adjust his senior class schedule to accept full-time work in the daytime or at night, at any hours, and to forego his school work altogether if necessary. One judge dissented. The majority gave little attention to the claimant’s availability for work, turning the case instead upon a conclusion that the claimant’s primary purpose and aim was to get an education and employment was a secondary consideration. Douty v. Unemployment Compensation Board of Review, 194 Pa.Super. 220, 166 A.2d 65. This strict trend was reversed in Wiley v. Unemployment Compensation Board of Review, 195 Pa.Super. 256, 171 A.2d 810. In that case the claimant was a married man, 28 years of age, and the father of two children. He had a record of several years of full-time employment during which time he had completed the first three years of college work at the University of Youngstown during his nonworking hours. He offered to adjust his class hours during his senior year to meet any requirements of full-time employment or to drop out of college entirely. The court held that the claimant was available for work and eligible for benefits. The opinion for the court was written by the judge who dissented in Douty and a dissent was written by the author of the majority opinion in Douty. One judge wrote a concurring opinion. Of the seven-judge court, one was absent, two were dissenters and two were concurrers. The court’s opinion emphasizes that the claimant did not fall into the category of the ordinary college student whose primary purpose was to obtain an education and who was available for work only conditionally or on a limited basis. It states: “The record discloses that the appellant was and is realistically and genuinely attached to the labor market.” The dissenters observed that the court “up to now has held the line against many assaults upon the fund to use it as an underwriting agency for’ college educations,” and predicted that with the line breached “before long the fund will be used to finance great numbers of college educations.” The concurrers thought the facts showing availability somewhat stronger than in Douty, that “the line is fine between students who work and workingmen who study,” and concluded that the claimant was “a workingman going to college and not a college student working.” By express statutory provision students are made generally ineligible for benefits in Idaho, Illinois, Indiana, Nebraska and Ohio.

There are even fewer reported cases dealing with part-time workers. In Thompson v. Schraiber, 253 Minn. 46, 90 N.W.2d 915, a waitress who had worked part time during morning hours and who refused an offer to work during evening hours because of family obligations, was held not to be available for work. In Robinson v. Maryland Employment Security Board, 202 Md. 515, 97 A.2d 300, a part-time cafeteria employee who for many years had worked from 10:45 a. m. to 3 p. m. and who refused employment from 4 p. m. to 1 a. m. and stated she would accept only part-time work at approximately her former hours, was held not available for work.

Our somewhat extensive review of cases from other jurisdictions has not been undertaken with the view of approving the conclusions reached. Most of the cited cases are from industrial states. Only one Texas case has been cited by the parties. A claimant who had voluntarily left his full-time employment to become a full-time student in the University of Texas, with classes from 9 a. m. to 1 p. m., and who was willing to accept suitable work for eight hours at any time between the hours of 1 p. m. and 9 a. m., was held not available for work by the Galveston Court of Civil Appeals in Keen v. Texas Unemployment Compensation Commission, Tex.Civ.App., 148 S.W.2d 211, no writ history. We have no occasion here to approve or to disapprove that holding.

We conclude that any claimant, student or non-student, and irrespective of whether qualifying wage credits have been earned in full-time or part-time employment, who, for personal reasons, lays such time or hour restrictions on his availability for work as effectively to detach himself from the labor market in his community, is not available for work within 'the meaning of Article 5221b-2. We can perceive of no logical basis for favoring those who have earned their qualifying wage credits in part-time employment over those who have earned theirs in full-time employment. The Act makes special provision for benefits for partial unemployment, but not for part-time workers. Articles 5221b — 1, 5221b-17. Under the test of availability here announced it will be the duty of the Commission to adjudicate each claim separately, weighing the time and hour restrictions imposed by the claimant against the demand for workers of the claimant’s general type.

In this case the record discloses that while there are some jobs available in Austin for part-time workers of respondent’s general qualifications during after-school hours, and indeed that respondent was eventually placed in such employment, the real labor market for workers of respondent’s qualifications were full-time jobs. The restrictions imposed by respondent detached him completely from that market. We hold that Hays was not available for work within the meaning of Article 522lb-2.

We are not to be understood as holding that a student can never be available for work within the meaning of the statute. However, it is difficult to envision a set of circumstances under which a student in regular attendance in elementary and secondary schools can be. The general statute compels attendance in those schools of children seven years but not more than sixteen years of age. Article 2892. Another statute requires that school be taught, for not less than seven hours each day. Article 2905. If a student is in regular attendance in those schools, whether or not compelled to be by statute, it seems wholly unlikely that he can be genuinely attached to the labor market.

The judgments of the Court of Civil Appeals and the County Court at Law of Travis County are reversed and judgment is here rendered that plaintiff-respondent Hays take nothing.

      . Article references are to Vernon’s Annotated Texas Civil Statutes.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    W. L. BRIDGES, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 34053.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    Certiorari Denied Oct. 8, 1962.
    See 83 S.Ct. 38.
    Robert B. Billings, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., Phil Burleson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted upon a plea of guilty before the court without a jury under The Securities Act, Art. 581-1, Vernon’s Ann.Civ.St., for the offense of the unlawful sale of securities and his punishment assessed at confinement in the penitentiary for two years.

No statement of facts of the evidence adduced upon the trial accompanies the record and there are no bills of exception.

Appellant’s sole contention on appeal is that the indictment fails to charge an offense because it did not negative the exempt transactions enumerated in sec. 5 of The Securities Act. The contention is urged as fundamental error, no exception or motion to quash the indictment having been filed by appellant in the trial court.

In Baker v. State, 132 Tex.Cr.R. 527, 106 S.W.2d 308, 311, Judge Lattimore speaking for this Court, in announcing the rule with reference to the necessity of negativing statutory exceptions in charging an offense in an indictment said:

“From what we have said above, and as far as we have been able to ascertain, our courts have uniformly held that when the Legislature sees fit to create exceptions to the general penal provisions of a statute if such exceptions be placed in a separate section or article from the one containing the definition of the offense, or if they be not such as to be essential to the definition of the offense, it will not be necessary to negative such exceptions in the indictment charging such offense. * * * ”

See also 1 Branch’s Ann.P.C.2d par. 530, p. 508, and cases there cited.

An examination of The Securities Act clearly reflects that the exempt transactions, separately enumerated in sec. 5 thereof, are not a part of the offense of unlawfully selling securities as defined in other sections of the Act. It was not necessary that the indictment negative the exempt transactions enumerated in sec. 5 of the Act in charging appellant with the offense.

The allegations contained in the second count of the indictment under which appellant stands convicted are sufficient to charge an offense under the Act.

The judgment is affirmed.

Opinion approved by the Court.


text:
    W. L. BRIDGES, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 34054.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    Certiorari Denied Oct. 8, 1962.
    See 83 S.Ct. 38.
    Robert B. Billings, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., Phil Burleson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted upon his plea of guilty before the court without a jury of the offense of embezzlement of corporeal personal property of the value of $50, or over, and his punishment assessed at confinement in the penitentiary for a term of three years.

No statement of facts of the evidence adduced upon the trial accompanies the record and there are no bills of exception.

Appellant’s sole contention on appeal is that the indictment fails to charge an offense. Such contention is urged as fundamental error, appellant having filed no exception or motion to quash the indictment in the trial court.

The second count of the indictment under which appellant stands convicted, omitting the formal parts, charged that on or about the date alleged, the appellant:

“ * * * was the agent, servant and employee of Hughes Imperial Funeral Insurance Company, a local Mutual Aid Association duly organized under the laws of the State of Texas, and the said W. L. Bridges, Senior, did then and there fraudulently embezzle, misapply and convert to his own use, without the consent of the said Hughes Imperial Funeral Insurance Company certain money, to wit, twenty thousand dollars which is of the aggregate value of over fifty dollars belonging to the said Hughes Imperial Funeral Insurance Company, which said money had come into' the possession of, and was then under the care of, the said W. L. Bridges, Senior, by virtue of such employment as such agent, servant and employee, as aforesaid, * *

The indictment follows the language of the statute defining the offense of embezzlement, Art. 1534, Vernon’s Ann.P.C. and is sufficient.

We overrule appellant’s contention that the indictment is insufficient because it does not allege that appellant embezzled the money with the intent to deprive the owner of the use and benefit of the same. Such is not a necessary allegation in charging the offense of embezzlement. 16 Tex.Jur., par. 134, p. 146; 21 Tex.Jur.2nd, par. 87, p. 682; Leonard v. State, 7 Tex.App. 417.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    W. L. BRIDGES, Sr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 34053, 34054.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1962.
    Certiorari Denied Oct. 8, 1962.
    See 83 S.Ct. 38.
    Robert B. Billings, Dallas, V. F. Taylor, Cofer & Cofer and Douglass D. Hearne, Austin (On Appeal), for appellant.
    Henry Wade, Criminal Dist. Atty., Phil Burleson, Asst. Criminal Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin for the State.
   MORRISON, Judge.

On rehearing, appellant makes certain contentions which he alleges are supported by the statement of facts and urges that this Court consider what purports to be a statement of facts for the first time. It does not appear to have been approved by the trial judge or prosecuting attorney and was not filed with the clerk of the trial court as required by Article 759a, Vernon’s Ann.C.C.P., and the holding of this Court in Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223.

The affidavit of appellant and his counsel to the effect that the statement of facts was presented to the trial judge for approval on June 29, 1961, which was within the time allowed by the judge, does not show sufficient diligence; he must go further and see that it is approved and filed in time. Ex parte Denson, 165 Tex.Cr.R. 420, 307 S.W.2d 952; Randolph v. State, 155 Tex.Cr.R. 432, 234 S.W.2d 235; Webb v. State, 109 Tex.Cr.R. 31, 4 S.W.2d 45. There is no showing that appellant or his counsel gave the matter of the approval of the statement of facts any further attention after June 29, 1961.

The statement of facts before us therefore cannot be considered, and the motion for rehearing is overruled.


author: BELCHER, Commissioner.

text:
    Jesse Maurice HUTCHINS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 34700.
    Court of Criminal Appeals of Texas.
    June 30, 1962.
    Rehearing Denied Oct. 17, 1962.

      James H. Martin, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., John Rogers, Frank Watts, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery with firearms ; the punishment, thirty-five years.

Johnny Jackson testified that he was the night manager of a service station on May IS, 1961, when the appellant, who was wearing a “Jelly-Bean” hat, and a companion entered about 1:20 A.M. and robbed him of $23.95. He further testified that during the transaction appellant’s companion Mendenhall held a pistol on him, and that appellant exhibited a tire tool in a threatening manner; that such actions put him in fear of his life or serious bodily harm, and that the appellant and Menden-hall took the $23.95 without his consent and against his will.

On June 19, Dallas Police Officers arrested the appellant, who was found hiding in a clothes closet, Mendenhall, who had a loaded pistol in his belt, and two companions in Mendenhall’s apartment. Appellant and Mendenhall were subsequently identified in a police line-up by Jackson as the two men who robbed him.

Appellant testified and denied any connection with the robbery. He further denied having ever worn a hat, particularly the “Jelly-Bean” type, and related that he had only gone to Mendenhall’s apartment, where he was arrested, to pick up two suitcases which Mendenhall had borrowed from him.

Appellant's mother and grandmother both testified that they had never seen appellant wearing a hat, and that prior to June 19 Mendenhall had come to their house, where appellant lived, to borrow the suitcases.

Appellant urges that the trial court erred in admitting testimony given by one of the arresting officers that Jackson identified appellant at the line-up even before those participating in the line-up were in proper position.

The record shows that prior to this testimony concerning the line-up Jackson himself had related, without objection, that

“as soon as they started coming through the door I told the detective there, I says, ‘that is one of them right there’ (referring to appellant).”

In this no error is shown.

Appellant next complains of the admission of testimony by Officer Blessing that during the time of the arrest he heard a noise which he found to have been caused by a screen from Mendenhall’s apartment hitting the ground, because it implied that the appellant was attempting to escape to avoid arrest.

The record reflects that about the time two other officers knocked on the apartment door, Officer Blessing was standing outside and heard the screen fall to the ground, which he found to be from Mendenhall’s apartment. He looked up and “saw this defendant (appellant) perched in the window sill of the window”, and told him “to get back inside the apartment.” There is no error in admitting such evidence because escape, flight and attempts to escape are always admissible as evidence of guilt. Cawley v. State, 166 Tex.Cr.R. 37, 310 S.W.2d 340.

Appellant strenuously objects to the admission of testimony given by Deputy Sheriff Kitching that appellant was in a Dallas jail from April 28 to May 4, 1961, on the ground that this testimony was improper impeachment of his witnesses on an immaterial matter. It is also urged that the testimony given by his witnesses which was contradicted by Kitching was brought out by the state on cross-examination, and that the state cannot impeach what they developed themselves.

The record shows that appellant testified and denied any connection with the crime which was alleged to have occurred about 1:20 A.M., May 15, 1961, and the trial court in its charge to the jury submitted the defense of alibi. His witnesses testified, on cross-examination, that appellant lived with them continuously since March, 1961, and “spent every night there.” It was further stated that appellant stayed at home every night in April and May, 1961, and that they never knew him to be out as late as 1 or 2 A.M. On re-direct examination of appellant’s grandmother, she was asked: “He wasn’t in prison or anything like that, was he ?”, and she answered, “No he sure wasn’t.” In view of these circumstances, no error is shown by the admission of Kitching’s testimony.

Appellant challenges the sufficiency of the evidence to support the jury’s verdict on the ground that the state’s only evidence of guilt came from one uncorroborated witness, Jackson, whose testimony was contradicted by appellant, his mother, and his grandmother.

The jury are the exclusive judges of the facts proved and the credibility of the witnesses and the weight to be given to the testimony. Art. 706, C.C.P. Except where corroboration is required by law, the fact that a single witness for the state is contradicted by a greater number of witnesses for the appellant does not alter the above rule. 24 Tex.Jur.2d 378, Sec. 715, and cases there cited.

The other contentions presented have been considered and do not show error.

The evidence is sufficient to support the jury’s verdict and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: GRISSOM, Chief Justice.

text:
    Mrs. Shelby HALL, Appellant, v. SAFEWAY STORES, INC., Appellee.
    No. 3699.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 7, 1962.
    Rehearing Denied Sept. 28, 1962.
    Hartman Hooser, Big Spring, for appellant.
    Turpin, Kerr, Smith & Dyer, Midland, for appellee.
   GRISSOM, Chief Justice.

Mrs. Shelby Hall sued Safeway Stores, Inc., for damages caused by a fall on its parking lot. The substance of plaintiff’s testimony is that at the time of her injury, which was about 11:00 A.M. on February 24, 1960, that the weather was cold and it had been raining and sleeting during the night; that as she left home for the Safeway Store to buy groceries a fine snow was falling; that she walked down the alley so she could walk on weeds; that she walked across Safeway’s parking lot, and at its edge, when she attempted to step up on a porch entrance to the store, she fell because, although the lot was level at that place, there was ice under the snow.

A jury found that defendant’s agent and employees should have known of the icy condition; that they failed to warn Mrs. Hall of the icy condition and that such failure was negligence and a proximate cause of her injury. It found that defendant failed to apply salt to the place in question and that was negligence and a proximate cause of plaintiff’s injuries and that defendant failed to clear the ice from its lot and that was negligence and a proximate cause of plaintiff’s injury. The jury found that snow and ice on defendant’s premises was the result of an act of God, but that said act was not the sole proximate cause of the accident.

The court sustained the defendant’s motion for judgment notwithstanding the verdict and rendered judgment for Safeway Stores, Inc. Mrs. Hall has appealed. She contends that the jury findings were supported by the evidence and showed that Safeway Stores, Inc., was guilty of various acts of negligence; that the jury exonerated her from any negligence and, therefore, the court erred in rendering judgment for the defendant. She prays that the judgment be reversed and that judgment be rendered for her.

The defendant did not create the icy condition. There was no evidence that defendant’s agents or employees knew of such condition or that it had existed long enough to charge defendants with constructive knowledge thereof. In H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501, (Writ Ref.), the applicable rule approved by our Supreme Court was stated as follows:

“In order to establish liability against the defendant operator of the store it is necessary to show:
“1. That the defendant put the foreign substance upon the floor, or,
“2. That the defendant knew the foreign substance was on the floor and wilfully or negligently failed to remove it, or
“3. That the foreign substance had been upon the floor for such a period of time that it would have been discovered and removed by the defendant, had the defendant exercised ordinary care.”

See also Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; O’Neal v. Weingarten, Tex.Civ.App., 328 S.W.2d 793, (Ref. N.R.E.); Furr’s v. Martin, Tex.Civ.App., 296 S.W.2d 607; Woolworth Company v. Bell, 5 Cir., 291 F.2d 912; Great Atlantic & Pacific Tea Company v. Giles, Tex.Civ.App., 354 S.W.2d 410, (Ref. N.R.E.); 61 A.L.R.2d 23 and 82 A.L.R.2d 995.

Of course, the defendant did not put the ice on its lot. It was put there by an act of God. There was no evidence that defendant knew of the icy condition. Under the quoted rule there remains to be considered only whether such condition had existed for such a period of time that defendant, by the exercise of ordinary care, should have discovered and removed the ice from its parking lot. There is no evidence as to when the ice, if any, was formed and, therefore, no evidence of how long it had been on defendant’s premises. Rendition of judgment for the defendants was, therefore, required.

It was undisputed that snow began to fall early in the morning and was still falling at the time of the accident. It is unnecessary to a decision of this case, but it has been held that under such a situation a defendant has a reasonable time after the end of a storm to clean its lot. See Walker v. Memorial Hospital, 187 Va. 5, 45 S.E.2d 898; Reuter Iowa Trust & Savings Bank, 244 Iowa 939, 57 N.W.2d 225; Mattson v. St. Luke’s Hospital, 252 Minn. 230, 89 N.W.2d 743, 71 A.L.R.2d 422; Wise v. Great Atlantic & Pacific Tea Company, 94 Ohio App. 320, 115 N.E.2d 33; Kelly v. Huyvaert, 323 Ill.App. 643, 56 N.E.2d 638; Camp v. Kirkpatrick, Tex.Civ.App., 250 S.W.2d 413, (Ref. N.R.E.).

The judgment is affirmed.


author: RENFRO, Justice.

text:
    Burton E. ELLIS, Appellant, v. Mary Jane ELLIS, Appellee.
    No. 16352.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 21, 1962.
    Yarborough, Yarborough & Johnson, and W. E. Johnson, Dallas, for appellant.
    Clyde & Barnes and A1 Clyde, Fort Worth, for appellee.
   RENFRO, Justice.

This is an appeal by Burton E. Ellis from a judgment rendered against him in the 96th District Court of Tarrant County.

Appellant did not file a brief.

The appeal is dismissed for want of prosecution. Rule 415, Texas Rules of Civil Procedure; Callaham v. Callaham, Tex.Civ.App., 353 S.W.2d 39; State v. Rydel, Tex.Civ.App., 336 S.W.2d 631.

Appeal dismissed.


author: WILLIAMS, Justice.

text:
    Hiram W. KELLUM, Appellant, v. PACIFIC NATIONAL FIRE INS. COMPANY, Appellee.
    No. 16027.
    Court of Civil Appeals of Texas. Dallas.
    July 27, 1962.
    Rehearing Denied Sept. 28, 1962.

      Fanning, Billings, Harper, Pierce & Gil-ley, Harlan Harper, Jr., Dallas, for appellant.
    Touchstone, Bernays & Johnston, and Webber W. Beall, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

Declaratory judgment action by Pacific National Fire Ins. Co., as plaintiff, against Hiram W. Kellum and wife, Ruth Kellum, and J. B. Wilder, as defendants, wherein plaintiff sought a judgment declaring no liability under a comprehensive personal liability policy (being a part of a combination household policy) previously issued by plaintiff to Hiram W. Kellum and wife Ruth Kellum. Plaintiff alleged that on May 9th, 1957 it had issued a certain policy of insurance to Hiram W. Kellum and wife Ruth Kellum, effective from May 9th, 1957 to May 9th, 1960, containing coverage of comprehensive personal liability with limitation of $10,000 for each occurrence and medical payment limited to $250 for each person. It was further alleged that on September 8th, 1959 Hiram W. Kellum and J. D. Wilder were on a hunting trip during which time a shotgun was discharged causing personal injuries to Wilder under such circumstances as would create legal liability under the policy issued in favor of Kellum. Plaintiff charged that the first notice it received concerning this occurrence was an oral notice about July 12th, 1960 and that the first written notice was given by Kellum on or about September 7th, 1960. The policy of insurance provided, as a condition precedent to coverage:

“(f) NOTICE OF OCCURRENCE: When an occurrence takes place written notice shall be given by or on behalf of the insured to this company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the occurrence, the names and address of the injured and the available witnesses.”

Plaintiff alleged that defendant Kellum breached the provisions of the policy with reference to giving notice “as soon as practicable” and that a claim had been asserted under said policy of insurance growing out of the occurrence in question so that the court was requested to declare that the policy was of no force and effect by virtue of said alleged breach.

Defendants, Kellum and wife, answered with a general denial, followed by a plea that they had given written notice of the injury “as soon as practicable”. Thereafter plaintiff filed its motion for summary judgment, supported by affidavit of an employee and representative, C. L. Hill. Also attached to the motion for summary judgment was a copy of the insurance policy in question, containing the provision copied above. Defendants, Kellum and wife, filed an answer to the motion for summary judgment consisting mainly of a statement by Kellum that he did not know that his insurance policy covered the occurrence in question and that as soon as he became aware of the fact that such policy did afford coverage he did notify the insurance company. No affidavits or other extrinsic evidence was filed by Kellum and wife in opposition to the motion for summary judgment.

Upon hearing, the trial court sustained the motion for summary judgment, holding no liability on the part of the plaintiff. While notice of appeal was given by all three defendants, only one defendant, Hiram W. Kellum, has filed an appeal bond and thereby perfected an appeal to this court.

By a plethora of points, many being too general to be considered, appellant, Kellum, assails the action of the trial court in sustaining the motion for summary judgment.

Appellant’s point, complaining of the failure of the trial court to make findings of fact and conclusions of law at his request, is without merit. This is a summary judgment action wherein no facts are decided. In such a case the court determines, as a matter of law, whether there are any fact issues to be decided. Therefore, there was no obligation on the part of the trial judge to file findings of fact and conclusions of law. Riemenschneider v. Missouri Pacific Railroad Company, Tex.Civ.App., 316 S.W.2d 949; Rolfe v. Swearingen et al., Tex.Civ.App., 241 S.W.2d 236; Quarels v. Traders & General Ins. Co., Tex.Civ.App., 340 S.W.2d 545.

Appellant complains of the failure of the court to sustain defendant Wilder’s exceptions contained in his answer to the plaintiff’s motion for summary judgment. This point is without merit for several reasons. In the first place defendant Wilder has not perfected an appeal to this Court. Also since the record is devoid of any showing that such special exceptions were ever called to the court’s attention, same were waived. Lozano v. Kazen, Tex.Civ.App., 313 S.W.2d 894; Tex.Jur.2d Vol. 3, p. 647, § 393.

Appellant contends that the court erred in rendering summary judgment in that the affidavit of C. L. Hill, in support of the motion is insufficient and further contains hearsay matters which would not have been admissible in evidence. An examination of the affidavit of C. L. Hill reveals that he was an employee and representative of Pacific Nat. Fire Ins. Co., and was cognizant of the facts stated in the affidavit. Rule 166-A(e) Texas Rules Civ.Proc. provides that supporting affidavits shall be made on personal knowledge and show affirmatively that the affiant is competent to testify to the matters stated in said affidavit. We believe that Hill’s affidavit meets all the requirements. Womack v. Allstate Ins. Co., Tex.Civ.App., 286 S.W.2d 308, reversed on other grounds, 156 Tex. 467, 296 S.W.2d 233. It is true that Hill’s affidavit contains certain conclusions and other matters that would probably be inadmissible in evidence upon the trial of the case. However, the material facts, i. e., those relating to the issuance of the policy, and its contents; the first receipt of oral notice on July 12th, 1960; and the first written notice received by the company on September 7th, 1960, are clearly demonstrated and would be admissible if testified to by Hill on the trial of the case. The fact that Hill’s affidavit contains both admissible and inadmissible matters does not render the affidavit entirely void. Farmers & Merchants, etc. v. City of Dallas, Tex.Civ.App., 335 S.W.2d 854; Bogert v. South Pac. Co., 2 Cir., 285 F. 46. It is to be presumed from the recitations contained in the judgment in this case, that the trial court correctly received sufficient legal evidence to justify his judgment and also applied the applicable law thereto. McFarland v. Connally, Tex.Civ.App., 252 S.W.2d 486; Reese v. Davittle et al., Tex.Civ.App., 255 S.W.2d 1015; Burnett v. Cory Corp., Tex.Civ.App., 352 S.W.2d 502.

Appellant next contends, without citing supporting authority, that an issue of fact was presented by appellee’s motion for summary judgment and appellant’s general denial. The motion for summary judgment was supported by the affidavit of C. L. Hill, together with attachments thereto. There was a general denial in the first amended original answer of Kellum. That a mere general denial in a case of this kind, is insufficient to create an issue of fact has been held by this and other courts on many occasions. Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832; Sessions Co. v. Sheaffer Pen Co., Tex.Civ.App., 344 S.W.2d 180; Schmidt v. Kuper, Tex.Civ.App., 324 S.W.2d 307, reversed on other grounds, 161 Tex. 189, 338 S.W.2d 948; Allen v. Western Alliance Ins. Co. (Tex.) 349 S.W.2d 590; McDonald, “Texas Civil Practice” § 17.26, p. 1379; Benson v. Harrell, Tex.Civ.App., 324 S.W.2d 620.

We come now to a consideration of what we consider the gravamen of appellant’s appeal. Was there an issue of fact presented by the pleadings, motions and affidavits before the Court? The burden of proof was definitely upon appellee to establish no genuine issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Appellee did this by introducing extrinsic evidence in support of its petition and motion for summary judgment, same demonstrating facts which would justify the granting of an instructed verdict had the case proceeded to trial on its merits. In order to defeat the motion it then was incumbent upon appellant to present more than pleadings. It became necessary for him to counter with extrinsic evidence, as stated by the Supreme Court in Gulf C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492:

“When motion for summary judgment is supported by affidavits, depositions, stipulations or other extrinsic evidence sufficient on its face to establish facts, which, if proven at trial, would entitle the movant to an instructed ver-diet, opponent must show opposing evi-dentiary data which will raise an issue as to a material fact or must justify his inability to do so and seek appropriate relief under Rule subdivision. Rules of Civil Procedure, rule 166-A(f).”

We are of the opinion that the facts developed by appellee were sufficient to demonstrate that, as a matter of law, the provisions of the insurance policy relating to the notice had been breached. There are no denials concerning the provisions of the policy concerning notice, nor is there any denial of the fact that notice was not. given until approximately one year after the occurrence of the accident.

Our Supreme Court has had occasion to pass upon and construe the identical provisions of the insurance policy in question. In the recent case of Allen v. Western Alliance Ins. Co., Tex.Civ.App., 343 S.W.2d 765 notice was not given until 107 days after the accident. In construing an identical provision concerning notice “as soon as practicable” the Supreme Court, 349 S.W.2d 590, 594, said:

“We hold that as a matter of law the failure to give notice for 107 days, under the circumstances of this case, did not constitute the giving of notice ‘as soon as practicable’ after the accident.”

Again in the case of Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95, our Supreme Court passed upon the identical question wherein notice was delayed for a period of 32 days. The court held that such delay was not “as soon as practicable” as a matter of law.

In Trinity Universal Ins. Co. v. Weems, Tex.Civ.App., 326 S.W.2d 302, the Court of Civil Appeals at Austin, held that failure to give notice of the accident for three and one-half months was not “as soon as practicable” as a matter of law.

In National Surety Corp. v. Diggs, Tex.Civ.App., 272 S.W.2d 604, the Court of Civil Appeals at Fort Worth held that delay of 104 days in reporting the accident was, as a matter of law, not “as soon as practicable.”

That failure to give notice “as soon as practicable” is a defense under a policy was decided in New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56, wherein our Supreme Court held that the failure of the insured to give notice “as soon as practicable” is a valid defense under the policy, regardless of whether any loss or damage to the insurer resulted from the delay.

Appellant’s efforts in unsworn answer and other pleadings to excuse his failure to notify the insurance company because of lack of knowledge of the policy coverage and his mistaken belief that the injury was not insured against is not sufficient to defeat the judgment rendered in this case. It is undisputed that appellant Kellum had possession of the policy and ample opportunity to read the same and familiarize himself with the terms thereof. Lack of knowledge of coverage and lack of knowledge that a claim could be made are not good excuses, as a matter of law, for complying with the provisions of the policy concerning notice. Jefferson Standard Life Ins. Co. v. Williams, Tex.Civ.App., 62 S.W.2d 661, writ ref.; Trinity Universal Co. v. Weems, Tex.Civ.App., 326 S.W.2d 302; Allstate Ins. Co. v. Hoffman, 21 Ill.App.2d 314, 158 N.E.2d 428; Segal v. The Aetna Casualty & Surety Co., 337 Mass. 195, 148 N.E.2d 659; Acosta v. Roach, 12 Misc.2d 494, 172 N.Y.S.2d 116; Gluck v. London & Lancashire, Sup., 134 N.Y.S.2d 889; Campbell v. Continental Casualty Co. of Chicago, 8 Cir., 170 F.2d 669; Dixie Furn. Co. v. Central Surety & Ins. Co., D. C., 173 F.Supp. 862, affirmed, 8 Cir., 272 F.2d 190.

We have carefully considered all of appellant’s points and finding same to be without merit, they are overruled.

The judgment of the trial court is affirmed.


text:
    James W. WYATT, Appellant, v. Donald M. MOTSENBOCKER, Appellee.
    No. 16024.
    Court of Civil Appeals of Texas. Dallas.
    July 13, 1962.
    Rehearing Denied Sept. 28, 1962.

      Bowyer, Thomas, Crozier & Harris, and Wm. W. Sweet, Jr., Dallas, for appellant.
    Thompson, Knight, Wright & Simmons and Timothy E. Kelley, Dallas, for appellee.
   WILLIAMS, Justice.

Gloria Ann Wyatt, a five year old child, sustained personal injuries when she fell from an automobile owned by Donald M. Motsenbocker. James W. Wyatt, father of the child, brought this suit (1) in his individual capacity to recover hospital and medical hills incurred by him as a result of the injuries sustained by his daughter, and (2) as next friend for the child, to recover damages sustained by her. At the conclusion of a jury trial, a special issue verdict found Motsenbocker to be guilty of negligence which próximately caused the injuries to the minor child, and also found Wyatt guilty of contributory negligence in failing to supervise his child at the time of the occurrence in question. Upon these findings the trial court rendered judgment awarding damages to the child in the amount of $250.00, and denying all relief to Wyatt, individually. Wyatt appeals, limiting his appeal solely to that part of the judgment which denies him recovery.

Appellant’s points attack three special issues and jury finding, as follows:

“SPECIAL ISSUE NO. 8-A
“Do you find from a preponderance of the evidence at the time, place and on the occasion in question and before the event in question, James W. Wyatt permitted Gloria Ann Wyatt to be absent from her home without parental supervision for approximately one hour, if you have so found in answer to the preceding special issue?
“Answer ‘Yes’ or ‘No’
“Answer: ‘Yes’.
“SPECIAL ISSUE NO. 8-B
“Do you find from a preponderance of the evidence that such conduct on the part of James W. Wyatt, if any you have found in answer to the preceding special issue, was negligence, as defined herein?
“Answer ‘Yes’ or ‘No’
“Answer: ‘Yes’.
“SPECIAL ISSUE NO. 8-C
“Do you find from a preponderance of the evidence that such negligence, if any you have found in answer to the preceding special issue, was a proximate cause as defined herein, of the injuries to Gloria Ann Wyatt at the time, place and occasion in question?,
“Answer ‘Yes’ or ‘No’
“Answer: ‘Yes’”.

Appellant contends that (1) there was no evidence to sustain an affirmative finding of the jury to such,issues; (2) that the court erred in not sustaining appellant’s motion to disregard the answers of the jury to these issues and enter judgment for appellant on the balance of such verdict; and (3) that the court erred in overruling appellant’s motion for new trial on the ground that there was insufficient evidence to sustain the answer of the jury to these issues.

In considering appellant’s “no evidence” and “insufficient evidence” points, we are guided by the rules announced by Chief Justice Robert W. Calvert of our Supreme Court in his Article entitled “No Evidence” and “Insufficient Evidence” points of error, Texas Law Review, Vol. 38, pp. 361, 372, and also by the Supreme Court in Re King’s Estate, 150 Tex. 662, 242 S.W.2d 660. Bearing in mind these rules it has become necessary for us to review carefully the entire statement of facts. We summarize herewith the material testimony having to do with the issue on contributory negligence of the father.

On April 24, 1960 Wyatt and his wife and three children, ages 5, 3 and 1, lived at 6512 Racine Street, which appears to he a residential street in the City of Dallas. Gloria Ann, age five years and nine months, returned home from Sunday School with the family shortly after 11 a. m. on April 24, 1960, changed her clothes and asked her mother if she could go to the park to play. The park referred to was a playground in connection with a grade school located about two blocks from the Wyatt home. Mrs. Wyatt refused Gloria Ann’s request to go to the park unattended, but did grant her permission to go across the street, with her younger brother, to play with a little girl named Cindy Nettles, with whom Gloria Ann had played on many previous occasions. Mrs. Wyatt specifically instructed Gloria Ann to return home when Cindy went in to eat, or when her mother called her for dinner. Mrs. Wyatt then watched the two children go across the street to Cindy Nettles’ home, and then began the preparation of the family meal. Without the knowledge of either Mr. or Mrs. Wyatt, Gloria Ann and her brother apparently left Cindy Nettles’ home and went up the street to the playground. It was not until about 12 o’clock noon that either Mr. or Mrs. Wyatt knew that Gloria Ann and her brother had left the Nettles’ home and gone to the playground. The fact was brought to their attention when Mr. Motsenbocker came to their house about noon and informed them that their daughter had been run over by his automobile and had been injured. There was no conflict in the testimony but that Gloria Ann was a normal child of average intelligence. She had never disobeyed instructions and gone to the playground on previous occasions.

The circumstances surrounding the accident which resulted in Gloria Ann’s injuries are rather unusual and the only testimony concerning this is from the appellee Motsen-bocker. He lived about 1 block south of appellant’s home and on the day in question he was at the playground with his four-year-old son engaged in flying a kite. He had parked his automobile at the curb adjacent to the playground, on an incline. His automobile was a 1957 Chevrolet with a standard transmission, with the ignition controlled by a key on the dashboard. When the key was turned this would engage the starter and the engine. Appellee had left the key in his car while he engaged in flying the kite, and the car was left in reverse gear. The emergency brake was not engaged. According to appellee, Gloria Ann and her little brother, whom he knew, joined ap-pellee and his son in the kite flying operation. About noon appellee informed Gloria Ann and her brother that he would take them home in his car and told all of the children to go and get in his car and wait for him until he brought in the kite. The children all proceeded to get into the car, after which the motor of the car started and the car backed down the incline. There is no evidence as to which of the children turned on the ignition and started the car. After the motor started, Gloria Ann, in attempting to get out of the door of the car, fell under the wheels of the car sustaining her injuries. The testimony was uncontradicted to the effect that Gloria Ann had been instructed by both her parents not to operate any of the instruments on the dashboard of an automobile. She had never violated these instructions nor was there any evidence she had ever violated instructions concerning where to go and when to return.

It is elementary that the burden of proving contributory negligence and proximate cause was on the appellee. In order to establish contributory negligence and proximate cause a defendant must prove (1) that the victim’s conduct was the cause of the injury or damage, i. e., that, but for some act or omission on his part, the harm would not have been done, and (2) that he could have foreseen or anticipated the event and prevented it from happening by acting otherwise than he did. 30-B Tex.Jur. p. 382. To convict Wyatt of contributory negligence, his actions or failure to act must have been contrary to ordinary care and .further, and equally important, the results of his actions or failure to act must have been reasonably anticipated and foreseen by him in exercise of ordinary care. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359, 363; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355.

By foreseeability as a necessary element of proximate cause is meant that a wrongdoer is not responsible for the consequence which is merely possible, but is responsible only for a consequence which is probable according to ordinary and usual experience. Texas & Pacific Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Dallas Ry. & Term. Co., v. Hendrix, Tex.Civ.App., 261 S.W.2d 610; Mabry v. Lee, Tex.Civ.App., 319 S.W.2d 125; Davidson v. Methodist Hospital of Dallas, Tex.Civ.App., 348 S.W.2d 400; 30-B Tex.Jur. 216-220; 38 Am.Jur. 712; see also the opinion of our Supreme Court in Genell, Inc. v. Flynn, Tex., 358 S.W.2d 543.

The. cases dealing with the question of negligence and proximate cause relating to supervision or lack of supervision by parents over their minor children and circumstances such as involved in this case are numerous and diverse in their holdings. Many courts have held that permitting children of tender age to be upon the public streets and sidewalks unattended is not, in itself, any evidence of negligence. Other courts have held that even though, under some circumstances a jury might be justified in finding that parents are negligent in permitting a child to be on the public streets and sidewalks unattended, nevertheless such negligence is not necessarily a proximate cause of injuries which resulted to the child because such negligence is, at most, a remote rather than a proximate cause. Houston City St. Ry. Co. v. Dillon, 3 Tex.Civ.App. 303, 22 S.W. 1066; Sciachitano v. City of Beaumont et al., Tex.Civ.App., 266 S.W. 558; and cases collated in 51 A.L.R. pp. 216-218.

However we find it unnecessary to decide the question of basic negligence of appellant Wyatt. Assuming, without deciding, that Wyatt and his wife should not have permitted their little daughter to go across the street and play with her little friend for a period of less than 60 minutes, such conduct on the part of the parent cannot defeat his recovery for damages where there is no evidence that such conduct was the cause which produced the injury to his daughter or that Wyatt could have reasonably anticipated that his daughter would be injured as a result of the chain of circumstances demonstrated in this record. The gravamen of appellant’s appeal is, in our opinion, the issue of proximate cause. The court, in connection with issue 8-C, relating to proximate cause, gave the standard definition of the term, including the elements of “new and independent cause” and foreseeability. Analyzing the testimony on this issue it is found that Gloria Ann was specifically denied by her parents permission to go to the park. They granted her specific permission to go across the street to a neighbor’s house to play with her little friend, as she had frequently done. She was instructed that she should return home at lunch time which was in about one hour. There is nothing in this record to suggest that the parents had any reason to believe that she would not remain in the neighbor’s yard. Moreover, the appointed time for her return had not arrived when Motsenbocker appeared and informed appellant of the accident. Appellant, and his wife, were bound by law to foresee that which they reasonably should have foreseen. It is reasonable that they may have foreseen that their child might have been injured in the yard of the neighbor while playing with her little friend, or even may have been struck by an automobile while crossing the street between her house and the neighbor’s house. However, it cannot be reasonably said that the appellant-parents could have reasonably anticipated and foreseen the peculiar chain of circumstances that led to the eventual injury of the child.

Furthermore, Motsenbocker’s acts and conduct created in him a new and independent cause or a new and independent agency that led to Gloria Ann’s injuries. A new and independent cause must be the act or omission of a separate and independent agency. Motsenbocker was an independent agency insofar as the Wyatt family was concerned. The new and independent cause must have destroyed the causal connection between the negligent act, if any, of appellant, and the eventual injury. Assuming, without deciding, that Gloria Ann’s father was guilty of some negligence in failing to exercise supervision over her for less than one hour such negligence, if any, ceases to be a proximate or producing cause of the eventual injury by virtue of the intervention of the new and independent cause in the form of Motsenbocker who, himself, assumed to exercise supervision over the child thereby effectively breaking the causal connection between any alleged negligent act on the part of the parent and the eventual injury. Under the definition “new and independent cause” the cause must be the immediate cause of such injury. The record here clearly demonstrates that the negligent acts of Motsenbocker were the immediate cause of Gloria Ann’s injury.

We therefore hold that there is no evidence in this record to support the submission to the jury, or the affirmative answer of the jury to Special Issue 8-C relating to proximate cause on the part of Wyatt. The trial court should have disregarded the answer of the jury to such issue and rendered judgment for Wyatt for his damages found by the jury in the amount of $3,719.

Appellee, by four cross-points, complains of the judgment against him in favor of the minor child. James W. Wyatt, as next friend of Gloria Ann Wyatt, a minor, moves to dismiss the attempted appeal of Motsenbocker, contending that since Motsen-bocker failed to perfect his appeal from that part of the severable judgment awarding damages to the minor, such cross-points may not be legally considered. We sustain the motion to dismiss Motsenbocker’s appeal.

The judgment in this case recites a recovery by the minor, represented by her father and next friend, and also recites a denial of recovery by the father, individually, against Motsenbocker. Motsenbocker did not file a motion for new trial. Notice of appeal was given by James W. Wyatt following the overruling of his amended motion for new trial. The only appeal bond is executed by James W. Wyatt, individually, and not in his capacity as next friend. No appeal bond was filed by Motsenbocker. In appellant’s brief it is recited that the appeal is limited only to that part of the judgment denying relief by Wyatt.

The general rule is stated in 4 Tex.Jur.2d § 671, p. 180:

“ * * * if an appellant appeals from a part only of a severable judgment, the appellee may not complain of any matters falling wholly within that portion of the judgment not brought up for review by the appellant. In such case, it is incumbent on the appellee to prosecute his separate appeal from the portion of the judgment adverse to him. The court will on motion strike the cross-points where the appeal is taken only from a severable portion of the judgment and the appellee does not perfect an independent appeal from the portion of the judgment adverse to him.”

The judgment in this case is definitely a severable one. The record is clear that appellant Wyatt only perfected an appeal from that part of the judgment adverse to him. Appellee filed no appeal bond nor made any effort to appeal from that part of the judgment awarding damages to the minor. Ap-pellee’s cross-points are disregarded. Connell Const. Co. v. Phil Dor Plaza Corp., 158 Tex. 262, 310 S.W.2d 311; Speckels v. Kneip, Tex.Civ.App., 170 S.W.2d 255, err. ref.

That part of the judgment in favor of Gloria Ann Wyatt against Motsenbocker is affirmed. That part of the judgment denying recovery to James W. Wyatt, individually, against Motsenbocker, is reversed and rendered, whereby James W. Wyatt, individually, have and recover from Donald M. Motsenbocker, the sum of $3,719, to-

gether with interest thereon from May 26th, 1961 at the rate of 6% per annum.

Affirmed in part and reversed and rendered in part.

YOUNG, J., not sitting.


author: PER CURIAM.

text:
    MOORMAN & SINGLETON et al., Appellants, v. Linda Jane SIMMONS, a Minor, by Next Friend, Appellee. MOORMAN & SINGLETON et al., Appellants, v. Edward Gale LOONEY, a Minor, by Next Friend, Appellee. MOORMAN & SINGLETON, a Partnership, et al., Appellants, v. Jerry Don FLOYD et al., Appellees. MOORMAN & SINGLETON, a Partnership, et al., Appellants, v. John Bryant FINCHER, a Minor, by and through his Next Friend and Father, Haskel Ray Fincher, Appellee.
    Nos. 4037-4040.
    Court of Civil Appeals of Texas. Waco.
    Sept. 21, 1962.
    Rehearing Denied Oct. 4, 1962.
    Thompson, Knight, Wright & Simmons, Frank Finn, Jr., Pinkney Grissom, Dallas, for appellants.
    Wynne & Wynne, Wills Point, for ap-pellee Linda Jane Simmons,
    L.. F. Sanders, Canton, for appellee Edward Gale Looney.
    Clyde Elliott, Jr., Canton, Bert Bader, Dallas, for appellee Jerry Don Floyd.
    C. L. Stanford, Canton, for appellee John Bryant Fincher.
   PER CURIAM.

The appeals in these plea of privilege cases were dismissed because appellants filed no briefs within the time prescribed by Rule 414, Texas Rules of Civil Procedure. On motion for rehearing appellants insist no briefs are necessary in appeals from interlocutory orders, and that Rule 414 has no application thereto. They cite cases holding no briefs are necessary in appeals from orders on temporary injunction.

The basis of these holdings is that Rule 385(d) provides that where the appeal is from an order granting or refusing a temporary injunction, the “cause may be heard in the Court of Civil Appeals” on the bill, answer, affidavits and evidence admitted. Subd. (d) of that Rule is limited in its application, and does not refer to appeals from all interlocutory orders. The two Court of Civil Appeals decisions to the contrary appear to derive their determination from the opinions in the temporary injunction cases.

We think Rule 415 authorizing dismissal for failure to file briefs applies to these appeals. Schkade v. Independent-Eastern Torpedo Co., Tex.Civ.App., 168 S.W.2d 281; Bloss v. Alston, Tex.Civ.App., 284 S.W.2d 416; Kirby Lumber Corp. v. Walters, Tex.Civ.App., 277 S.W.2d 796, 801; Fitch v. International Harvester Co., Tex.Civ.App., 350 S.W.2d 395, per curiam, Tex.Sup., 354 S.W.2d 372; and see Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.2d 811.

Motions for rehearing are overruled.


author: COLEMAN, Justice.

text:
    The CITY OF HOUSTON, Appellant, v. GLEN OAKS UTILITIES, INC., et al., Appellees.
    No. 13983.
    Court of Civil Appeals of Texas. Houston.
    Sept. 20, 1962.
    Rehearing Denied Oct. 11, 1962.

      R. H. Burks, City Atty., John Gano and Charles F. Weaver, Senior Asst. City Attys., Houston, for appellant.
    Dow & Dow, Melvin Dow, Edmund L. Cogburn, Houston, for appellees.
   COLEMAN, Justice.

This is an appeal from the judgment of the District Court of Harris County, Texas, rendered on motion for summary judgment, permanently enjoining the City from attempting to enforce the provisions of three ordinances regulating the rates to be charged by the public utility companies, appellees herein.

The trial court’s action was based on his conclusion that the undisputed facts revealed that insofar as appellees were concerned, the ordinances in question were void because the City failed to give to the appellees notice and an opportunity to be heard before the enactment of the ordinances in violation of the due process provisions of the Constitutions of Texas and of the United States of America.

The City does not contend that notice or opportunity to be heard was afforded ap-pellees prior to the enactment of Ordinance Nos. 57-531 and 59-1078. It contends that these were ordinances of general application to numerous companies engaged in the business of furnishing water, sanitary sewer service or garbage pick-up service within the City without franchises and that notice and hearing to those affected by the ordinances are not constitutional requirements.

The Supreme Court of Texas, in a former appeal in this same case, Glen Oaks Utilities, Inc. v. City of Houston, 161 Tex. 417, 340 S.W.2d 783, stated that, “It is settled law that procedural due process requires that a rate-fixing body give due notice to the utility involved and grant a hearing before enacting an ordinance.” This general statement of the law is applicable here. The effect of the ordinances under discussion is to set the maximum rates which the utilities could charge. It is implicit in the rule of law stated in the case cited that the utility has a legally protected right to set the rates at which it will furnish commodities or services. It can be deprived of this right by a rate-fixing body only if that body in exercising its authority does so with proper regard to those safeguards against arbitrary conduct which the courts have determined are required by “due process of law.” Old Dearborn Distributing Co. v. Seagram-Distillers Corporation, 299 U.S. 183, 57 S.Ct. 139, 81 L.Ed. 109; United States v. Illinois Cent. R. Co., 291 U.S. 457, 54 S.Ct. 471, 78 L.Ed. 909; Eldridge v. Fort Worth Transit Company, 136 S.W.2d 955, Tex.Civ.App., writ dism.; City of Houston v. Willow Bend Utilities, Inc., 331 S.W.2d 333, Tex.Civ.App., writ ref., n. r. e. The fact that the City attempted to regulate the rates to be charged by a number of companies in one ordinance cannot deprive the companies affected of these constitutional safeguards.

The evidence shows that Ordinance No. 59-996 was enacted in 1959 about two years after the conclusion of a rate hearing of which the companies had notice and in which they participated. At the conclusion of these hearings no rate ordinance was passed by the City. It is undisputed that evidence not available in 1957 was considered by the City in arriving at the rates finally included in the ordinance. This evidence was not presented at a meeting of which the companies were given formal notice.

The Supreme Court of the United States has held that “a fair and open hearing is one of the rudiments of fair play * * * ” which “must be accorded as an inexorable safeguard, * * * ” and that “there must be due notice and an opportunity to be heard, * * Railroad Commission of California v. Pacific Gas & Electric Co., 302 U.S. 388, 58 S.Ct. 334, 82 L.Ed. 322. In Ohio Bell Telephone Company v. Public Utilities Commission of Ohio, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093, the Supreme Court of the United States said: “The fundamentals of a trial were denied to the appellant when rates previously collected were ordered to be refunded upon the strength of evidential facts not spread upon the record. * * * This is not the fair hearing essential to due process.”

The attorney representing the companies testified by affidavit that he was told by Mr. Clinton Owsley, Director of Public Service of the City of Houston, at a conference on July 14, 1959, that the City had to get the ordinance enacted before July 20, 1959, on which date a motion for summary judgment was set down for hearing. He was shown a copy of an ordinance substantially similar to Ordinance 59-996 that was introduced and finally passed on July 17, 1959. In Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, the Court said:

“Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” (Italics added.)

Clearly the notice here given was not appropriate to the nature of the case. While the reasonableness of any notice given would ordinarily be a question of fact, here no evidence was produced that Mr. Owsley was acting by direction of, or under authority granted by, the rate-making body. The affidavit is not evidence of notice of anything more than that Mr. Owsley considered it necessary that the ordinance be passed prior to July 20, 1959. This would not constitute notice by the rate-making body that it would take up the matter of rates and afford appellees the opportunity to be heard.

After this case was reversed and remanded for trial by the Supreme Court in Glen Oaks Utilities v. City of Houston, supra, appellees amended their petition by eliminating all allegations that the rates set by the ordinances under attack were confiscatory and that substantive due process was denied them. Evidence submitted in connection with the answer to the motion for summary judgment establishes, in the absence of evidence to the contrary, that the rates would produce an adequate return and are not confiscatory. The City therefore, contends that appellees were not ■entitled to the permanent injunction since ¡they have suffered no injury..

In the previous appeal of this case, the Supreme Court, after stating that due process required notice and hearing, said: “Justice requires that a court must have authority to go behind an ordinance which is valid on its face and inquire into the facts surrounding its enactment; otherwise the utility would have a right without a remedy.” The Court also said that if the rates fixed by the ordinance are so low as to be confiscatory, the ordinance is void. We construe this opinion to mean that if either procedural due process or substantive due process was denied appel-lees by the ordinance in question, the ordinances were void. Our interpretation of this opinion is strengthened by the fact that a writ of error was refused, n. r. e., in City of Houston v. Willow Bend Utilities, Inc., 331 S.W.2d 333, Tex.Civ.App., where we held Ordinance No. 57-531 void for want of notice and opportunity to be heard although no evidence was introduced concerning the adequacy of the rates permitted by the ordinance. Substantive due process is not denied so long as the rates permitted yield an adequate return. There would be no useful purpose served in alleging and proving denial of procedural due process, if, to secure injunctive relief, the complainant must also allege and prove denial of substantive due process. While the opinion points out that before a temporary injunction may issue facts must be developed showing that the ordinance is void and that the complaining party is suffering immediate injury, the present appeal is from a judgment granting a permanent injunction. Since we consider ourselves bound by Glen Oaks Utilities, Inc. v. City of Houston, supra, as we have interpreted that opinion, no useful purpose would be served by discussing other authorities cited to us.

Appellants seriously assert:

“ * * * that ‘due process of law’ does not concern the questions of notice, opportunity to be heard, or hearing, unless the Legislature has, by statute, provided that notice, opportunity to be heard, or hearing, shall be prerequisite to the enactment of rate ordinances; * * * that the Legislature of the State of Texas has not provided that notice, opportunity to be heard, or hearing, are prerequisite to the enactment of rate ordinances; * * * that the only test of a valid utility rate ordinance (other than gas utilities) in the State of Texas is the substantive test and statutory injunction imposed by the Legislature that rates shall be based upon the fair value of the property devoted to furnishing service, and not upon any stocks or bonds or other indebtedness of the utility; * * * that the due process provisions of the State and Federal Constitutions are satisfied by the statutory substantive test in Texas as aforesaid, since any utility rate ordinance failing to meet the test may be either reformed by the regulatory body or set aside upon a trial held in a court proceedings wherein the rate is properly attacked as being violative of the substantive test imposed; * *

All of these points were denied by the Supreme Court of Texas in Glen Oaks Utilities v. City of Houston, supra, and we are bound by that decision. See also Francisco v. Board of Dental Examiners, 149 S.W.2d 619, Tex.Civ.App., error ref.; San Saba County Water Control & Improvement District No. 1 et al. v. Sutton, 12 S.W.2d 134, Tex.Com.App.; State of Texas ex rel. Merriam v. Ball, 116 Tex. 527, 296 S.W. 1085.

The hearing provided by suit for injunction is not sufficient to satisfy the constitutional requirement since the ordinances go into effect immediately and are effective during the trial unless a temporary injunction is granted, in which event the complainant would be required to post bond to cover damages sustained during trial if he was unsuccessful. The opportunity to be heard should be granted before the rates become effective. The hearing before the court will not establish a rate. In the event the court determines that the rate is inadequate it is not authorized to determine what rates would be adequate. It follows that if a suit for injunction is a substitute for notice and opportunity to be heard by the rate-making body, then the requirement of procedural due process is meaningless.

Appellant alleged certain affirmative defenses summarized under its Point Five,, as follows: (a) Appellees have accepted and consented to the rate ceilings fixed in Ordinance No. 59-996; (b) Appellees have waived any complaint by them of Ordinance No. 59-996, or the rate ceilings fixed thereby; (c) Appellees are estopped to complain of Ordinance No. 59-996, or the rate ceilings fixed thereby; (d) Appellees have failed to pursue or exhaust their administrative remedy prerequisite to suit attacking Ordinance No. 59-996, or the rate ceilings fixed thereby; (e) Appellees have an adequate remedy at law; and (f) Ap-pellees do not come into court in this proceeding with clean hands. The City contends that fact issues with reference to each of the ordinances attacked were raised by the evidence as to each of these special defenses.

We find no evidence of any action taken, or communication made, by appellees before the ordinances in question were passed which could be the basis of these defenses. It is contended that the issues were raised by evidence that appel-lees failed to appeal from a judgment temporarily enjoining them from charging rates in excess of those set by Ordinance No. 57-531 and that after the passage of Ordinance No. 59-996 the companies raised their rates to the máximums permitted by that ordinance. The fact that the City found it necessary to compel compliance with Ordinance No. 57-531 would negative “consent,” and we see nothing in the evidence raising the issues of waiver or estoppel. During the interval between the enactment of Ordinance No. 57-531 and Ordinance No. 59-996, the lawsuit was pending, the City Council held a rate hearing, negotiations were being conducted between the City and the utility companies for purchase and sale, and finally the utilities wrote several letters requesting renewed hearings or the passage of a rate ordinance in order that it could either be accepted or attacked in court. The counsel for the utilities told Mr. Owsley that the terms of ^Ordinance No. 59-996 were not acceptable and soon after its enactment this suit was filed. The requests for rate hearings did not comply with the requirements of the ordinances in question, but they were received and acted on by the City. This failure to comply is consistent with the position of the utilities that they had not been validly subjected to regulation. No evidence has been called to our attention, nor have we found any, suggesting that either of these defenses is applicable to Ordinance No. 59-1078. We have found no evidence sug--gesting that appellees have intentionally relinquished known rights, or that either of the ordinances conferred any benefit on appellees of which they availed themselves. While we do not question the authority of the cases .cited by appellant, we do not consider them applicable under the facts of this case.

Appellant suggests that the summary judgment was improper for the reason that appellees have failed to pursue or exhaust their administrative remedies. This argument was rejected by the Supreme Court of Texas in the previous appeal of this case. It is argued, however, that the decision of the Supreme Court is inapplicable under the facts developed since the ap-pellees failed to show that they have been injured by any of the ordinances. Since appellees, in the absence of regulation, may set any reasonable rate, illegal interference with this right constitutes injury. The Memorial Bend case, supra, is not applicable since appellees have never been validly subjected to regulation, if their attack on these ordinances is successful. There is no rate promulgated by law to be changed unless it is the rate fixed by one of these ordinances.

Appellees are required by law to furnish services to citizens in the area served by them. Threatened enforcement of these ordinances constitutes unlawful interference with the contract rights of the utilities and their customers. “When the right of lawful use and enjoyment of private property will be injuriously affected by the threatened enforcement of a void ordinance, such enforcement will be enjoined.” City of Kermit v. Spruill, 328 S.W.2d 219, Tex.Civ.App., err. ref., n. r. e.

For the reasons just stated we conclude that the defense of “adequate remedy at law” is inapplicable. Appellant says ap-pellees may secure a variance in its rates by following the procedures provided in the ordinances. It is our opinion that the City cannot freeze the rates which appellees have voluntarily set without affording them notice of a meeting of the City Council at which they would be given an opportunity to be heard on the proposed ordinance. In such case the procedures required by the ordinances to obtain consent of the City to changes in rates would also be invalid since no consent is required of an unregulated business. Regulation of rates by ordinances adopted without regard to safeguards required by “due process” can neither be attained directly, nor accomplished indirectly. City of Dallas v. Love, 23 S.W.2d 431, Tex.Civ.App.

That appellees have resisted the regulation of their rates by ordinances enacted without their having had an opportunity to be heard and offer testimony is no evidence of conduct of such character as to justify appellant in invoking the maxim “He who comes into equity must come with clean hands.” Nor do we find other evidence which would do so.

We recognize that the summary judgment procedure may not be invoked where there are genuine issues of material fact and, then, only when movant is entitled to judgment as a matter of law, that the burden of demonstrating lack of genuine issue of material fact is upon movant and all doubts should be resolved against him. Here we are convinced that there are no genuine issues of material fact.

The judgment of the trial court is affirmed.


text:
    The STATE of Texas, Appellant, v. Dallas G. PERKINS et al., Appellees.
    No. 3759.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 21, 1962.
    Rehearing Denied Oct. 12, 1962.
    Will Wilson, Atty. Gen., Austin, Eplen, Daniel, Hooper & Dickson, John W. Davidson, City Atty., Abilene, Senator Clint Small, Austin, for appellant.
    Dan T. Sorrells, Abilene, Cofer & Cofer, Austin, for appellees.
   GRISSOM, Chief Justice.

This suit was brought by the State of Texas, ex rel. J. C. McKee, Jr. et al., against Dallas G. Perkins, as mayor, and the other officials of Impact to test the validity of the incorporation of that city. Based upon the answers of a jury to special issues, the court rendered judgment against the State and it has appealed.

Appellant’s first point is that the court erred in failing to render judgment for the State because the undisputed evidence and the jury’s answer to issue number one conclusively show that at the time of its incorporation Impact was not a “town or village” within the meaning of the law. That, on the contrary, it was only a portion of a larger unincorporated, inhabited community, town or village which could not be lawfully incorporated without including substantially all of the town or village as it existed at the time of its purported incorporation.

Appellant alleged that appellees, as usurpers of public office, were illegally exercising the powers of officials of Impact because the 29 petitioners to incorporate the 47.43 acres known as Impact knew from the physical facts apparent on the ground that the area embraced within the boundaries of the proposed town contained only 70 houses, while in the territory immediately contiguous thereto and in the surrounding community as a whole there were many more residences, inhabitants and voters than in Impact. They alleged that appellees, in so fixing the boundaries, under the leadership of Mr. Perkins, acted with the fraudulent purpose of excluding the greater portion of said town or village and its qualified voters from participation in the incorporation election and prevented the inhabitants of the town as it then existed from having a voice in determining whether it should incorporate; that the law permitted incorporation by the voluntary act of the inhabitants of the town as it then existed, but not by the small portion thereof which said proponents chose to include, according to their whim and caprice, and, further, that the statutes gave to the qualified voters and inhabitants of the town as it then existed the right to fix the boundaries of the territory to be incorporated and to determine whether it should incorporate. They prayed for a judgment that the attempted incorporation was void.

The evidence conclusively shows that the election to incorporate was held February 13, 1960; that at said election 27 votes were cast for incorporation and none against; that Impact was declared incorporated on August 2nd and officials were elected on August 14th, with a maximum of 20 votes cast for any candidate; that there were only 70 houses in Impact, 15 of which were vacant, while within a triangle containing about 691 acres, of which the 47 plus acres was a part, outside of Impact there were 348 buildings, 301 of which were residences, with 17 vacancies, 5 churches and 25 businesses; that there were then only 31 qualified voters inside Impact, according to the official poll list, and that, outside of Impact in said triangle there were 85 voters, exclusive of exemptions.

The evidence shows that Mr. Perkins’ home is in the southwest corner of Impact and around his home there is vacant land that separates his home from most of the others in Impact; that it is 2200 feet from his home to the northeast corner of Impact; that Impact is about 1400 feet wide north and south; that it is a slightly greater distance from Impact’s East boundary line to Grape Street in Abilene and less than 2700 feet from Impact’s boundary line to Pine Street in Abilene; that Mr. Perkins purchased 19.7 acres of vacant land in July, 1959, took an option to buy 4 more acres in January 1960, and that all said acreage went into Impact and that either Mr. Perkins, or the corporation of which he and his wife are president and secretary, respectively, own over 29 of Impact’s 47 plus acres and that, except for his home, said land is mainly vacant and unoccupied; that Mr. Perkins alone laid out the boundaries and no one else had anything to do with determining its boundaries; that the only people he talked to before circulating the petition to incorporate were those living close to him; that the reason he left out the 102 houses which join Impact on the north was that they intended to later give the inhabitants thereof an opportunity to decide for themselves whether they wanted to become a part of Impact. It is also undisputed that no natural barrier separates the remainder of the inhabited community from Impact.

The jury found in answer to issue one that “said proposed town was a portion of a territory comprising a larger, unincorporated, inhabited community or settlement.” But, it also found that (2) the incorporation petitioners did not fix the boundaries “so as to arbitrarily exclude a portion of the larger unincorporated, inhabited community or settlement”, of which it was a part. (The court defined arbitrarily as follows: “The word ‘arbitrarily’ means unreasonably; not naturally; against the nature of things; at pleasure; without fair cause or reason; or depending on will alone.”) It found that (3) the proposed town of Impact was conditioned so as to be subject to municipal government and that (4) the petitioners for in-' corporation intended to use the territory included in Impact for strictly town purposes.

Appellant urged in a motion for a directed verdict that the evidence conclusively showed that the proponents of incorporation did not incorporate a town within the meaning of the Constitution .and laws of Texas and that Perkins arbitrarily fixed its boundary lines for the purpose of excluding most of the inhabitants of the community of which Impact was naturally a part. Said motion was overruled. After the verdict appellant filed a motion for judgment, asserting it was entitled to a judgment under the jury’s answer to issue one and the undisputed facts. It also moved for judgment notwithstanding the answers to issues 2, 3' and 4, contending that the evidence conclusively showed that the boundaries were arbitrarily fixed by Perkins and not by the inhabitants of the town, as required by law. In appellant’s motion for a new trial they particularly urged that the evidence conclusively showed that the corporate limits of Impact were not fixed in the reasonable exercise of the judgment •of the voters of the town as it existed in February 1960, but, on the contrary, were adjusted to exclude land belonging to inhabitants of the town who might object to incorporation, and to prevent the inhabitants of the excluded portion from voting on said matter and having the benefits thereof.

After careful consideration of the entire record we are forced to the conclusion that the essential allegations of the information were conclusively established and that the law applicable thereto compels a judgment for appellant. Article 1133 authorizes a “town or village” that contains the population applicable here to incorporate in the manner therein prescribed. Article 1134 provides that “if the inhabitants of such town or village desire to be so incorporated” they may do so by following the procedure there prescribed. But, there is no provision for incorporation of a minor part of a town or village in the absence of natural barriers between parts of the town, and the like. None of such exceptions exist in this case. The inhabitants of the 47 plus acres called Impact had no inherent power to incorporate. A town or village can incorporate only by substantial compliance with the statutes. 30-A Tex.Jur. 29, 30.

The Supreme Court of Texas as early as 1890, in State ex rel. Taylor v. Eidson, 76 Tex. 302, 13 S.W. 263, 264, 7 L.R.A. 733, held that only towns and villages are authorized to incorporate; that “town” means a collection of inhabited houses and carries with it the idea of a considerable aggregation of people living in close proximity. (See also Ralls v. Parrish, 105 Tex. 253, 147 S.W. 564, 566.) In Ewing v. State, 81 Tex. 172, 16 S.W. 872, 873, 874, the Supreme Court asked the question, “Who are empowered to create the corporations ?” It answered, “The inhabitants of cities, towns, and villages.” It then asked, “What are they empowered to incorporate?” It answered, “The cities, towns, and villages themselves, and not also .such portions of the adjacent territory as these inhabitants may be pleased to embrace within the limits of the corporation.” It said that “the. area occupied by a town * * * is so marked by the aggregation of residences and appurtenant structures that it is always practicable to fix the boundaries so as not to include any territory not authorized to be embraced. With a just disposition to respect the rights of the owners of adjacent property, no body of petitioners need make such a mistake as to this matter as will imperil the validity of the act of in- ’ corporation.” The law is certainly the same with respect to. the exclusion of the major portion of a town or village as it is plainly marked by its residences and appurtenant structures. The inhabited houses of a town which proposes to incorporate may be seen on the ground. They show where the boundaries are. State ex rel. Taylor v. Eidson, 76 Tex. 302, 13 S.W. 263, 264, 7 L.R.A. 733. If the incorporating petitioners do not respect the rights of the inhabitants of a major portion of the town or village they imperil the validity of their acts in attempting to incorporate. Since such decisions our Legislature has consistently authorized towns and villages, not just an arbitrary slice thereof, to incorporate. In enacting the present statutes authorizing incorporation of towns and villages the Legislature adopted the previous definition of a town by the Supreme Court.

The jury found that Impact was a portion of a territory comprising a larger unincorporated, inhabited community or settlement. The record shows that at the time of the attempted incorporation Impact contained only 70 residences, 15 of which were vacant, while the remainder of the community, of which Impact was a- part, contained 324 occupied residences, 25 business houses and 5 churches. It shows that more than 100 houses in a solid group were located just outside the arbitrarily fixed north boundary of Impact; the incor-porators arbitrarily took a small slice from this solid group of inhabited houses and left the remainder outside its boundaries. The area thus attempted to be incorporated as a town contained no business of any kind, no church, no school, no pavement or any other public improvement. They were all in that part of the town, of which Impact was naturally a part, which was thus excluded; the boundaries were not fixed with any regard to the town as it was marked on the ground by the inhabited houses and appurtenant structures.

The principal question presented is whether the incorporators were required to include substantially the whole of the town as it actually existed at the time. The evidence conclusively shows that the boundaries were fixed according to the whim and caprice of Mr. Perkins; that he fixed the boundaries without regard to the town that actually existed, taking the small portion he desired and excluding the major portion. It shows that there were no natural barriers separating the chosen and rejected portions and that no fact exists which constituted a legal justification for such arbitrary division of the existing inhabited community.

In State ex rel. Wilke v. Stein, (Tex.Com.App.), 26 S.W.2d 182, 187 it was held, in an opinion approved by the Supreme Court, that “the statutes on this subject, as embraced in title 28, which is all the law applicable to this case, would not authorize the creation of a municipal corporation out of a portion of territory comprising an unincorporated town, but, on the contrary, the statute contemplates that, when a municipal corporation is sought to be created, under the circumstances alleged in the petition, the entire town, that is to say, substantially all the citizens residing within the limits of the inhabited portion of the settlement, or community, must be included.” (See the same case in Tex.Com.App., 36 S.W.2d 698 and Tex.Civ.App., 52 S.W.2d 690.). The later opinions in that case do not hold contrary to the quoted statement of the law. In the second opinion of the Commission of Appeals, 36 S.W.2d 698, 699, it quotes the above statement of law from the first opinion and declares that the law is correctly stated there. The second opinion does qualify the first, so far as it is here material, only by saying that said holding would not be applicable if natural barriers, such as a river, separated portions of the town, and the like. The exceptions to the stated rule are not applicable here because the facts which create such exceptions do not exist in this case.

This record compels the conclusion that the attempt to incorporate was without authority of law and contrary to the public policy of the State. The attempted incorporation was not validated. The validating act “does not apply * * * where it was sought to incorporate in violation of the law.” Judd v. State, 25 Tex.Civ.App. 418, 62 S.W. 543, 544 (Writ Ref.). Furthermore, to come within the validating act and make it applicable to Impact the requisite population must be shown by the Federal Census of 1960. It wasn’t. See 13 U.S.C.A. § 145; Art. 23, Sec. 8, R.S.Texas. We also hold that the Attorney General was authorized to bring this suit. Art. 4, Sec. 22, Texas Constitution, Vernon’s Ann.St.; Art. 4395; Staples v. State, 112 Tex. 61, 245 S.W. 639; Yett v. Cook, 115 Tex. 205, 281 S.W. 837; Art. 6253; City of West University Place v. State, Tex.Civ.App., 56 S.W.2d 1081 (Writ Ref.); 7 Tex.Jur.2d 14.

All points presented that have not been discussed have been considered and are overruled. We hold that the attempted incorporation is void. The judgment is reversed and judgment is rendered for the State of Texas.