author: RENFRO, Justice.

text:
    LOUISIANA & ARKANSAS RAILWAY CO. et al., Appellants, v. H. T. PRIDDY, D/B/A H. T. Priddy Co., et al., Appellees.
    No. 16306.
    Court of Civil Appeals of Texas. Fort Worth.
    March 9, 1962.
    Rehearing Denied April 6, 1962.

      O. O. Touchstone, Dallas, for appellants.
    Eugene D. Biddle; McDonald, Sanders, Nichols, Wynn & Ginsburg, and Atwood McDonald, Fort Worth, for appellees.
   RENFRO, Justice.

H. T. Priddy, d/b/a H. T. Priddy Co., alleged in a petition filed in a district court of Tarrant County that he had prior to January 25, 1959, leased a certain described truck and trailer to Jean Casebolt Frozen Rolls, Inc., that on January 25 the truck and trailer, while in the possession of Jean Casebolt Frozen Rolls, Inc., were in a crossing collision in Hunt County with a train owned and operated by defendants, Louisiana & Arkansas and Kansas City Southern Railway Companies, doing several thousand dollars damage to said truck and trailer. Specific acts of negligence were alleged against all defendants. Jean Casebolt Frozen Rolls, Inc., filed an answer to plaintiff’s suit and a cross-action against the two Railroad defendants. Jean Casebolt Frozen Rolls, Inc., was a resident of Tarrant County.

The Kansas City Southern filed its plea of privilege to be sued in Jefferson County and the defendant Louisiana & Arkansas Railway Company filed its plea to be sued in Hunt County. Both plaintiff and Jean Casebolt Frozen Rolls, Inc., filed controverting pleas. Plaintiff’s controverting plea claimed venue in Tarrant County under subdivision 4 of Art. 1995, Vernon’s Ann.Civ.Tex.St. Said plea set out that the negligence of each and all the defendants caused the damages and such acts of negligence, separately and concurrently, were the direct and proximate cause of plaintiff’s damages.

The pleas of privilege were overruled.

The Louisiana & Arkansas Railway Company and the Kansas City Southern Railway Company will be referred to as nonresidents. Jean Casebolt Frozen Rolls, Inc., will be called Casebolt, and H. T. Priddy, d/b/a H. T. Priddy Co., will be called plaintiff.

The nonresidents argue their pleas of privilege should have been sustained because: no cause of action asserted in the plaintiff’s petition and in cross-plaintiff’s cross-action was proved upon the hearing; plaintiff’s cause of action was based on separate acts of negligence on the part of the nonresidents and Casebolt in Hunt County while plaintiff attempted to prove breach of bailment contract on the part of Case-bolt; there was no pleading or proof to sustain action of the trial court in overruling the nonresidents’ pleas as to Case-bolt ; and subsection • 4 of Article 1995„ V.A.T.S., has no application.

On the hearing plaintiff testified that he owned the truck and trailer; he leased it to Casebolt; it was damaged in excess of $10,000.00 as a result of the collision; neither plaintiff nor his agents had any control or supervision of the equipment at the time of the collision; it was returned to him in the damaged condition. His testimony was not refuted. None of the defendants offered any evidence.

In Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157, the Supreme Court cited with approval Wigmore on Evidence, 3rd Ed., § 2508, wherein it is stated: “ ‘Where goods have been committed to a bailee, and have either been lost or been returned in a damaged condition, and the bailee’s liability depends upon his negligence, the fact of negligence may be presumed, placing on the bailee at least the duty of producing evidence of some other cause of loss or injury.’ ” The Court then held: “Without prejudice to the burden of proof being at all times on the bail- or, the bailor under this latter rule makes a prima facie or presumptive case of negligence by proving the bailment and either the return of the goods by the bailee in a damaged condition, not existing at the time of their delivery to him, or a failure by him to return them at all. The rule is said to be based on the just and common sense view that the party in possession or control of an article is more likely to know and more properly charged with explaining the damage to it or disappearance of it than the bailor who entrusted it to his care. It is evidently supported by the weight of authority in the United 'States, including our own state. See cases collected in 8 C.J.S., Bailments, § 50, n. 87; 6 Am.Jur. (Rev.Ed.), Bailments § 371, n. 17; Rhodes v. Turner, Tex.Civ.App., 171 S.W.2d 208, mandamus to certify questions refused in Rhodes v. McDonald, 141 Tex. 478, 172 S.W.2d 972; Callihan v. Montrief, Tex.Civ.App., 71 S.W.2d 564, er. ref.; Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 60 F.2d 734, 736; Gilland v. Peter’s Dry Cleaning Co., 195 S.C. 417, 11 S.E. 857; Thomas v. Hackney, 192 Ala. 27, 68 So. 296.”

Applying the above to the case before us we find that plaintiff made out a prima facie case of negligence against the resident defendant Casebolt.

In setting out the requirements plaintiff must meet to sustain venue against a nonresident under subsection 4, the Supreme Court in Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, held that the plaintiff must allege in his petition a joint cause of action against the resident and nonresident defendants, or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the nonresident defendant that the two may be joined under the rule intended to avoid a multiplicity of suits and “proof that the suit is of such nature is supplied by the plaintiff’s petition, for it, as so often has been said, is ‘the best and all-sufficient evidence of the nature of the action.’ ”

In the instant case there was but one collision. The plaintiff sued all three defendants and alleged all three were separately and concurrently guilty of negligence causing the damage for which suit was brought. Plaintiff plead and proved a cause of action against the resident defendant. His petition shows that full redress cannot be obtained without suing all three. The cause of action against the resident defendant is so intimately connected with the cause of action alleged against the nonresidents that the three may be joined to avoid multiplicity of suits.

We see no error in the action of the court in overruling the nonresidents’ pleas of privilege as to Casebolt’s cross-action. Its cross-action is so intimately related to plaintiff’s cause of action that they should be tried together to avoid a multiplicity of suits.

Our holding that the nonresidents were properly joined in Tarrant County under subsection 4 necessitates our overruling the nonresidents’ contention that, in order to hold the nonresidents in Tarrant County, the plaintiff was required to allege and prove that the nonresidents were guilty of negligence in Tarrant County. The nonresidents point out that, under the provisions of subdivision 9a, the venue facts necessary for plaintiff to establish by a preponderance of the evidence to sustain venue in a negligence case in a county other than the county of defendant’s residence are: (1) that an act or omission of negligence occurred in the county where suit was filed; (2) that such an act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment; (3) that such negligence was a proximate cause of plaintiff’s injuries.

Subdivision 9a gives the plaintiff the option to sue a defendant in a negligence case in the county of defendant’s residence or in the county where the negligence occurred. It does not purport to supplant or repeal subsection 4 involving two or more defendants, one of whom is a resident of the county where suit is brought, hence is not controlling as to a nonresident who has been properly joined in suit in the county of the residence of his co-defendant or defendants.

Here plaintiff brought suit and proved a cause of action against a resident of Tar-rant County in Tarrant County. We hold that the nonresidents, under the record made, were proper parties under subsection 4 and the trial court did not err in overruling the pleas of privilege.

Judgment is affirmed.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    Andrew Jackson PATTERSON et al., Appellants, v. CITY OF DALLAS, Appellee.
    No. 15989.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 23, 1962.
    Rehearing Denied March 16, 1962.

      Erhard, Cox & Ruebel, Dallas, for appellants.
    H. P. Kucera, City Atty., and Ted P. MacMaster, Asst. City Atty., Dallas, for appellee.
   WILLIAMS, Justice.

Appellants sought to enjoin the City of Dallas from enforcing the provisions of Section 8-28 of the Code of Civil and Criminal Ordinances of the City of Dallas, said Section of the City Code being a part of a comprehensive Ordinance regulating the operation of massage establishments. The Section of the Code under attack reads as follows:

“It shall be unlawful for any person to administer a massage as defined in Section 8-12 to any person of the opposite sex; provided, however, that this Section shall not apply to any Chiropractor, nor shall it apply to any registered physical therapists, or registered nurse operating under the direction of a physician. (Ord. 7856, § 15; Ord. 8491, § 1.)”

Appellants alleged that they had procured a valid license issued under the provisions of the Code regulating massage establishments but contended that the above quoted section of the Code was unenforceable in that it was arbitrary, discriminatory and unreasonable, and also was in violation of the State and Federal Constitutions. The City, in its answer, contended that Section 8-28, as well as the entire Code regulating such massage establishments was enacted under express Charter powers and under the general exercise of its Police Powers to prohibit, abate and suppress all things detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the City of Dallas.

The trial court rendered judgment denying appellants’ injunctive relief, specifically holding that the Section of the Code under attack was a reasonable exercise of the Police power of the City of Dallas and did not violate the Constitutional rights of appellants. Prom this order appellants appeal, contending in five points of error, that Section 8-28 should be declared invalid because (1) the Section complained of constitutes an unreasonable exercise of legislative authority of the City of Dallas; (2) that it constitutes an unreasonable regulatory act which is a prohibition of the occupation of appellants; (3) that the Ordinance violates and contravenes Section 3, Art. 1, of the Constitution of the State of Texas, Vernon’s Ann.St.; (4) that the Ordinance contravenes Section 19, of Art. 1, of the Constitution of the State of Texas; and (5) that the Ordinance violates and contravenes the Fourteenth Amendment to the Constitution of the United States dealing with equal protection and due process of law. We are unable to agree with appellants on any of these points and therefore overrule them.

Section 8-12 through Section 8-28 of the City of Dallas’ Code of Civil and Criminal Ordinances constitutes a very comprehensive Ordinance dealing with the establishment and regulation of massage establishments. By its various Sections it is made unlawful for any person to operate a massage establishment without a license; requires an investigation by the Chief of Police as to the character, criminal record and general reputation for common decency of the applicant, or any employee; requires information to be supplied to the Health Department; requires medical certificates from the Health Department; governs appeals from refusal to grant or renew a license; grant rights of inspection; establishes comprehensive sanitary requirements; and finally makes it unlawful for any person to administer a massage to any person of the opposite sex, with the named exemptions. The testimony is without dispute in this record that the appellants obtained a license to operate a massage establishment known as AVALON BATHS in the City of Dallas pursuant to the provisions of the regulatory Code described above. At the time the application was made for a license it was represented to the Police Department that only registered nurses or registered physical therapists operating under the direction of physicians were employed at the AVALON BATHS. It was stipulated that the AVALON BATHS does not have any registered physical therapists or registered nurses registered by the State of Texas operating under a July licensed physician. Captain W. P. Gannaway, Captain of Detectives, and commanding officer of the Special Service Bureau of the Police Department of the City of Dallas testified that he had made an investigation of the AVALON BATHS and that same was being operated in violation of the Ordinance. He testified further that over the past several years the Police Department had an increase in problems confronting the Department with reference to the proper operation of massage establishments and that recommendations were made to the City for proper Ordinances to regulate same; that specifically the Police Department was confronted with a general problem that lewd acts were committed by the operators of the AVALON BATHS; that one of the appellants, Evelyn DeWitt, had been arrested at another location for offering to commit a lewd act on one of the undercover agents of the City.

That the City of Dallas had the right and authority to license and regulate persons or groups of persons engaged in business, occupation, profession or trade is not questioned. Section 5, Charter of the City of Dallas; Section 23, Art. 1175, Vernon’s Ann.Civ.St. Appellants concede this authority but contend that this regulation by the municipal authority must be reasonable and not arbitrary or discriminatory. It is their contention that while the Police power of the City is broad and expansive, it must bear a reasonable and substantial relationship to the end sought to be achieved by the legislative body. The question is directly presented: Does Section 8-28 of the Code of Civil and Criminal Ordinances of the City of Dallas bear a reasonable and substantial relationship to the ends sought to be achieved by the legislating body, or does same arbitrarily establish a fixed Code of conduct which bears but a remote speculative and conjectual relationship to any valid results sought to be achieved under the Police power?

To answer this question we are governed by the well-established rules which are succinctly stated by the court in Sitterle v. Victoria Cold Storage Co., (Tex.Civ.App.), 33 S.W.2d 546, 549:

“The power being expressly granted by the Legislature, the time for assuming and the manner of exercising it rest within the sound discretion of the governing board of the municipality. Under such authority, the board may determine the questions of the necessity of exercising the power, and of the method of giving effect thereto, and its determination of those questions is final and conclusive, and may not be revised by the courts, in the absence of clear and conclusive evidence that the board had acted arbitrarily and without reason. And in such situation the burden rests upon those aggrieved to make such showing.”

Thus, we are not authorized to declare the Ordinance void vel non unless it clearly and unequivocally appears that the Ordinance was enacted without any basis of reason therefor. Moreover, we are governed by the well-established rule of construction of Statutes and Ordinances that a presumption exists that the legislative body has acted within its power. 12 Tex.Jur.2d § 42, p. 385; Chimine v. Baker, 32 Tex.Civ.App. 520, 75 S.W. 330; Houston & T. C. R. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 70 L.R.A. 850.

From the undisputed testimony of Captain Gannaway, and considering the record as a whole it is apparent that the Police Department of the City of Dallas was confronted with a real problem in the operating of massage establishments because of lewd acts committed or arising from the massaging of a person of one sex by a person of another sex. In an effort to correct this evil the Police Department of the City of Dallas made investigations and collected facts which were presented to the attention of the City Council of the City of Dallas with the recommendation that the Ordinance in question be passed in an attempt to curb the evil which then existed. It is to be observed that the Section under attack prohibits a member of one sex from administering a massage to a person of the opposite sex, with the exception noted. It does not prohibit, but permits, a masseur to administer a massage to a member of the male sex, and a masseuse to administer a massage to a member of the female sex. The right to conduct a massage establishment, after complying with the Massage Ordinances and securing a permit, is not prohibited but is merely regulated. This record does not demonstrate failure on the part of the City Council to perform its legal functions. Appellants have failed to sustain their burden of proof to show that the Ordinance complained of was enacted without reason or that it was enacted arbitrarily.

In construing a municipal ordinance we are governed by the same rules-as to the construction of Statutes. Mills v. Brown, 159 Tex. 110, 316 S.W.2d 720; Town of Port Acres v. City of Port Arthur, (Tex.Civ.App.), 340 S.W.2d 325. In construing Legislative Statutes, as well as Ordinances, it is the duty of the court to ascertain the Legislative intent and this intent should be given effect if it is reasonable and not arbitrary. Popham v. Patterson, 121 Tex. 615, 51 S.W.2d 680. Municipalities have the right to classify persons and the constitutional guarantee of equal rights and privileges to all citizens is not violated by discrimination provided there is a reasonable ground for such discrimination. Mims v. City of Fort Worth, Tex.Civ.App., 61 S.W.2d 539. Based upon these fundamental rules and applying them to the record in this case, we are of the opinion that the clear legislative intent of the City of Dallas in enacting the entire comprehensive regulatory statute was to protect the health and morals of the community. When viewed as a whole the Ordinances are, indeed, reasonable and based upon fact and not fiction. As pointed out above there is a definite reasonable grounds for discrimination as provided in this Ordinance and the same is a fair exercise of Police Power of the City of Dallas.

We have been cited to no Texas case adjudicating a similar worded Ordinance, nor have we found one by our research. However, the District Court of Appeals, 2d District of California, in the case of Ex parte Maki, 56 Cal.App.2d 635, 133 P.2d 64, had before it for consideration an Ordinance of the City of Los Angeles which contains almost identical wording as the Ordinance under attack. That Ordinance made it unlawful for any person to administer, for hire or reward, to any person of the opposite sex any massage, alcohol rub or similar treatment. The Ordinance was attacked by Maki on the same constitutional grounds asserted in this case. The court, in rejecting the contention of the petitioner and holding the Ordinance to be valid and constitutional, said:

“The ordinance applies alike to both men and women. If petitioner should receive only male patrons and do his own work or employ only masseurs, he would not violate the ordinance. If he should receive only female patrons and employ only masseuses to do his work, there would be no violation. The barrier erected by the ordinance against immoral acts likely to result from too intimate familiarity of the sexes is no more than a reasonable regulation imposed by the city council in the fair exercise of police powers. In re Miller, 162 Cal. 687, 124 P. 427. * * *
“In testing the legislative judgment with respect to the necessity for the enactment of regulatory laws in the absence of a judicial determination to the contrary, the presumption is that the city council’s action was supported by known facts requiring the enactment. South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 625, 58 S.Ct. 510, 82 L.Ed. 734. Such presumption demands but little application here. The inclination of a percentage of mankind to ignore conventionalities, moral codes and inhibitory statutes and to indulge in licentious practices arising from the sex impulse is too well known to the student of history and sociology to require extended discussion. They have been prohibited in every land of recorded history from ancient Babylon (Code of Hammurabi) to the present time. The evil became so great a menace to the welfare of the early Saxon state in Britain that our rude forebears made adultery a capital offense. (Taine’s History of English Literature.) By reason of the continued presence of such element whose lack of restraint would, by subverting the common morality, weaken the foundations of an approved social order, the Legislature may suppress the practice deemed inimical to the state and may adopt such measures as may be reasonable to effectuate its purpose. Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 33 S.Ct. 44, 57 L.Ed. 184; American Linseed Oil Co. v. Wheaton, 25 S.D. 60, 125 N.W. 127, 41 L.R.A., N.S., 149. Moreover, the fact that a particular transaction considered apart from the menace sought to be prevented may be innocuous, does not immunize it from the prohibition contained in the enactment. Since the ordinance in question does not prohibit either man or woman from engaging in the occupation of the masseur but merely regulates the conduct of a business in the interest of the state, there is no infraction of article XX of the Constitution.”

The court also rejected the contention of the petition in that case that the ordinance violated the privileges and immunity clause of the Constitution of California, which is similar to Art. 1, Section 3, of the Constitution of the State of Texas, saying:

“Petitioner contends that the ordinance violates section 21 of article 1 of the Constitution which forbids that ‘any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.’ Those to whom special privileges are granted by the Ordinance, asserts petitioner, are licensed physicians and their employees, in that those permitted to give massages are not selected upon the basis of their qualifications; that anyone may do so if he asks no reward for his service or if he is supervised by a licensed physician; that anyone may administer a massage so long as a masseur treats a man and a masseuse treats a woman; that a man may be treated by a masseuse and a woman by a masseur at the office of a physician. Such discrimination, argues petitioner, is not based upon some ‘natural, intrinsic, or constitutional distinction.’ Citing Gaetano Bocci & Sons Co. v. Lawndale, 208 Cal. 720, 284 P. 654, 655.
“We find no violation of section 2f in the language of the ordinance. The physician is granted no special privilege thereby. Pie qualifies himself for such responsibility by his allegiance to time honored ethical standards as well as by complying with the requirements of the state in gaining the knowledge and skill which qualify him to administer to the human body. The physician is obligated not only to adhere to the application of the most advanced methods and remedies in the art of healing but also to scorn immoral behavior and to denounce licentious practices. But not even he may act arbitrarily. He may cause a massage to be given only to those who in good faith seek his professional ministrations. The very act of the state in granting licenses to those only who are qualified as physicians is itself an attempt to prevent the quack and the charlatan from preying upon the unsuspecting public. There is, therefore, a distinction in the moral trustworthiness of the licensed physician, as a class, and the massagist. The latter has no professional standards to uphold. His endeavors are activated by only a personal zeal to promote his own prosperity.”

Finally, the court rejected the contention of the petitioner that the ordinance violated a due process clause of the Constitution of California and the Fourteenth Amendment to the Constitution of the United States, saying:

“The fallacy of petitioner’s argument that the ordinance deprives him of his property without due process of law will already have occurred from the foregoing discussion. The reasonable exercise of the police power in regulating any occupation in order to maintain the moral welfare does not arbitrarily deprive a person so engaged.of his property. The language of the ordinance and the evils intended thereby to be prevented make it clear that the intent of the city council was solely to serve the public welfare and not to oppress any class. The fact that a person by his occupation may be unable to gain certain profits as a result of the enforcement of regulatory measure is not a deprivation of his property without due process of law. Enactments that curb the vicious or restrain the wicked necessarily restrict the emoluments of his enterprise. However, such results are not to be considered in determining the validity of a law.”

We think this case, so well decided, is decisive of the instant appeal.

In determining the question of due process, equal rights, and discrimination, under both our State and Federal Constitutions it may be recognized that the Legislature may classify law violators and impose different penalties, inhibitions and restrictions upon several classes, provided there is a reasonable basis therefor. In determining whether there is a reasonable basis for the classification there is a general presumption that the Legislature has done its duty, not violated the Constitution; and therefore the classification will be upheld unless it appears, clearly and without doubt, that it has no reasonable basis of support. Watts v. Mann (Tex.Civ.App.), writ ref. 187 S.W.2d 917.

Mindful of these clear rules of construction, we are unable to agree with appellants that this ordinance was passed by the City Council of Dallas without having a reasonable basis of support in the matter of classification and equal protection of the law. Mims v. City of Fort Worth, Tex.Civ.App., 61 S.W.2d 539; Berry v. City of Fort Worth (Tex.Civ.App.), 110 S.W.2d 95; Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896; James-Dickinson Farm Mortgage Co. v. Harry, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569.

Statutes of this state providing for separate classification of the sexes are not uncommon. Art. 5177, V.A.C.S. provides for separate toilets for each sex in factories, mills, workshops, mercantile establishments, laundries and other establishments. Art. 5178, V.A.C.S., prohibits management of an institution from permitting conditions to exist calculated to injuriously affect morals of female employees. The operation of a massage establishment renders them peculiarly subject to police regulations and prohibitions within the police power. Legislation based upon classification of the sex of the person does not constitute a new principle of constitutional law. The Supreme Court of the United States in Cronin v. Adams, 192 U.S. 108, 24 S.Ct. 219, 48 L.Ed. 365, and Cronin v. Denver, 192 U.S. 115, 24 S.Ct. 220, 48 L.Ed. 368, upheld a municipal ordinance of the City of Denver which prohibited liquor dealers from providing places where females could be supplied with liquor and from permitting females to be on or remain on the premises where liquor was sold.

Appellants make an earnest argument that since Section 8-28 of the Code does not include the language “for hire or reward” that the ordinance applies to other •conceivable innocent situations such as prohibiting a husband from giving a massage •to his wife, a parent from giving a massage •.to a child, and any of a number of situations. We cannot agree with appellants’ theory of construction of the ordinance in question. It is a fundamental rule of statutory construction that words or phrases in a statute may be supplied, omitted or transposed in order to arrive at legislative intent and an interpretation should not be adopted that would thwart the legislative intent or lead to absurdity, injustice, or uncertainty if such construction can reasonably be avoided. Rogers v. Dallas Ry. & Terminal Co., Tex.Civ.App., 214 S.W.2d 160, affm. 147 Tex. 617, 218 S.W.2d 456; Hargrave v. Texas & P. Ry. Co. (Tex.Com.App.), 12 S.W.2d 1009; Tone v. City of Denison (Tex.Civ.App.), 140 S.W. 1189; Roby v. Hawthorne (Tex.Civ.App.), 84 S.W.2d 1108.

The interpretation which appellants insist should be given to this ordinance would lead to absurd results. It is our opinion that when Section 8-28 is read in connection with the entire comprehensive ordinance that reasonable minds could not differ on the conclusion that it was the clear intent of the City Council to apply this ordinance only to the situation under consideration ; that is the operation and maintenance of massage establishments. Where the intention of a statute is not clearly expressed or is so inadequately expressed that the court must resort to construction, it is proper to consider the results of any proposed construction, and the court will, if possible, place upon the statute a construction which will not result in sin injustice, inconvenience, ttnreasonableness, prejudice to public interest, or absurd consequences. National Surety Corp. v. Ladd, 131 Tex. 295, 115 S.W.2d 600; McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691; Wood v. State ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4, 121 A.L.R. 931.

When the ordinance in question is considered in the light of the entire chapter regulating massage establishments in the City of Dallas, it is clear to us that the governing body of the City of Dallas intended, by the enactment of this ordinance, to prohibit lewd acts in such establishments. Such acts of lewdness was the very problem which confronted the Police Department, which resulted in an investigation and the recommendation to the City Council upon which is based the ordinance in question. The ordinance represents a reasonable application of the Police powers of the City of Dallas and bears a reasonable relation to the object sought to be obtained; and when construed in conjunction with the entire Code provisions is valid and constitutional.

The judgment of the trial court is affirmed.


author: NORTHCUTT, Justice.

text:
    Wayne HECKATHORN, Appellant, v. Charles TATE et ux., Appellees.
    No. 7140.
    Court of Civil Appeals of Texas. Amarillo.
    March 19, 1962.
    Merchant, Fitzjarrald, Poole & Merchant, Amarillo, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellees.
   NORTHCUTT, Justice.

This is a personal injury damage suit based upon an automobile collision. Mrs. Benda Tate on July 23, 1960, while backing her car, struck the parked pickup in which Mrs. Heckathorn was sitting. Mr. Hecka-thorn brought this suit against Mr. and Mrs. Tate for damages. The case was submitted to a jury on acts of negligence on the part of Mrs. Tate and the question of whether or not Mrs. Heckathorn suffered any personal injuries as a direct and proximate result of the collision in question, and the amount of damages sustained if she was injured.

The jury found in answer to Special Issue No. 2 that Mrs. Heckathorn did not sustain any personal injuries as a direct and proximate result of the collision in question. The jury further found in response to other issues submitted that Mrs. Tate failed to keep a proper lookout for vehicles parked on the lot at the time and place in question, and that such failure was a proximate cause of the collision in question. Based upon the findings of the jury that Mrs. Heckathorn did not sustain any personal injuries, the trial court rendered judgment that the plaintiff take nothing. The plaintiff perfected this appeal and has brought forth only one point of error.

By appellant’s only point of error, it is contended the trial court erred in overruling plaintiff’s motion for a new trial when the verdict showed beyond question that the answer to the special issue submitted as to injury was based solely on bias and prejudice and not supported by any evidence or alternatively insufficient evidence. At the time here in question, Mrs. Tate was backing out from the grocery store, misjudged her distance, and backed into the pickup in which Mrs. Heckathorn was seated. Mrs. Heckathorn testified that she heard the racket and that she blacked out just a few minutes and fell across her little boy and when she came to the boy was leaning up in the other corner and her little girl said: “Mama is dead.” Mrs. Tate testified as soon as she heard the noise that she had hit the pickup she walked over to the pickup right quick and asked Mrs. Heckathorn if she was hurt, and she said she was not hurt. Mrs. Heckathorn testified she did tell Mrs. Tate she was not hurt. Mrs. Heckathorn’s reason for telling her she was not hurt was because she felt sorry for Mrs. Tate because she was so upset. Dr. Powell, who treated Mrs. Heckathorn, testified that pain is a subjective symptom and he was treating her for what he thought was an injury but that he made X-rays but the X-rays showed no sign of injuries at all. It is to be noticed that Mrs. Heckathorn stated she heard the racket and blacked out and Mrs. Tate testified she heard the noise and went to see if Mrs. Heckathorn was hurt. Neither one testified they felt a jar from the collision. The medical history of Mrs. Hecka-thorn covering several years previous to the collision was introduced showing the condition of Mrs. Heckathorn. The pickup showed scarcely any damage.

It is a well established rule of law that an appellate court cannot substitute its judgment for that of a jury on disputed issues of fact. Linney v. Wood, 66 Tex. 22, 17 S.W. 244; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792; Holmes v. American General Ins. Co., Tex.Civ.App., 263 S.W.2d 615; Roach v. Continental Casualty Company, Tex.Civ.App., 336 S.W.2d 811; Brewer v. Dallas Ry. & Terminal Co., Tex.Civ.App., 247 S.W.2d 435; Flack et al. v. First Nat. Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628.

It was in the province of the jury to disregard Mrs. Heckathorn’s testimony as an interested party. It is apparent the jury did so. After carefully reviewing the record and all of the evidence, we are of the opinion that the verdict is supported by the evidence and overrule appellant’s assignment of error. Judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    Delos THOMPSON, Appellant, v. NORTHERN PUMP COMPANY, Appellee.
    No. 13897.
    Court of Civil Appeals of Texas. San Antonio.
    March 14, 1962.
    Rehearing Denied April 11, 1962.

      Strickland, Wilkins, Hall & Mills, Asa V. Bland, Mission, for appellant.
    Keys, Russell, Keys & Watson, Corpus Christi, Kelley, Looney, McLean & Little-ton, Edinburg, for appellee.
   POPE, Justice.

Delos Thompson sued Northern Pump Company for damages to realty. The jury answered all issues for plaintiff. The court gave Thompson judgment for $1,035, permanent damages to two and one-half acres of land, hut granted judgment notwithstanding the verdict as to temporary damages to an additional twenty-three acres. Thompson insists that there is evidence, more than a scintilla, which supports the jury findings that Northern’s oil operations deprived Thompson of the temporary use of twenty-three acres of his land, which caused damages in the sum of $1,900.19. In our opinion, there was evidence which supported the jury findings.

Thompson’s land is a rectangular tract. At the northeast corner of the tract there is a water gate and a ditch which extends southward along the eastern boundary. To irrigate the tract the water would flow from the ditch toward the west to about the center of the tract which was low. At the southwest corner of the tract there is another water gate and another ditch extends along the western boundary. To irrigate, the water must flow from that ditch toward the east to the center of the tract. It is Northern’s contention that all of the undisputed evidence shows that it did not interfere with the irrigation. In determining whether there is any evidence in support of the findings, we indulge all inferences in their favor. Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814.

We have read the statement of facts and find evidence in support of the verdict. Prior to 1951, this land was planted with citrus trees and was irrigated. After a freeze in that year the trees were ruined and the land was cleared. In 1952 the land was planted in maize, |.nd in 1953 it was planted in corn. From 1950 to 1955 there was a drought. Thompson determined to stop irrigating and to plant the land in grass. Sometime during that period the land was planted in cane. During 1956 and 1957 the land was in grass. In 1958, Northern moved on the land under an oil lease, drilled an oil well and built a dirt road from the west side to the east side, which bisected the land. It pushed in the irrigation ditch on the west side and built its road across the ditch. Thompson planted nothing in 1958, but in 1959 he planted a clover crop which was a failure because of his inability to irrigate the crop.

Immediately prior to Northern’s entry, Thompson had cleaned the land and had it staked for leveling. Some of the stakes were knocked down by Northern when it entered and built its road, drilled its well and located its well and heater near the eastern boundary. The leveling was never completed. A neighbor testified that the land was “fairly irrigable.” Another neighbor testified that the whole tract could be irrigated except for a small portion in the southwest corner, for which Thompson made no claim. This witness testified that the road constructed by Northern cut the tract in two, which interfered with the turns of the farm machinery and also the irrigation system by which the water gravitated to the center of the field. Roy Thompson, who managed the tract, testified that he could not irrigate the tract because of Northern’s road and well. He stated that he had never run water on the road, which is another way of saying that to irrigate would inundate the road. Moreover, there was evidence that the road had been built by filling in the ditch on the west side, without inserting culverts or tile to permit the flow of water. This evidence is from several sources.

Northern argues that plaintiff admitted that he had given up irrigation several years earlier. Taken in context with the evidence of a drought, which forced him to shift from farming to dairying, his testimony is explainable as a temporary cessation until the drought was broken. In any event, plaintiff produced evidence that the land was once irrigable, but now is not by reason of Northern’s changes in the field. This is not a case for a judgment notwithstanding the verdict.

Northern’s brief contains counterpoints that the judgment notwithstanding the verdict was proper, and also that the jury findings were against the great and overwhelming weight of the evidence. Under Rule 324, Texas Rules of Civil Procedure, as amended in 1957, we must go further and determine whether we should remand the case for that reason. From an examination of the record in the whole case, including the evidence which is favorable and unfavorable to the findings, we conclude that the findings are not so against the great weight of the evidence as to be manifestly unjust. Muro v. Houston Fire & Casualty Insurance Co., Tex.Civ.App., 329 S.W.2d 326, 332.

Accordingly, we affirm that part of the judgment which granted permanent damages, about which there is no complaint on appeal, and we reverse the judgment of the court which denied temporary damages and here render judgment that Thompson also recover the sum of $1,900.19 for temporary damages.


text:
    E. T. WHITE et al., Appellants, v. THOS. Y. PICKETT & COMPANY, Inc., et al. Appellees.
    No. 13892.
    Court of Civil Appeals of Texas. San Antonio.
    March 7, 1962.
    Rehearing Denied April 5, 1962.

      Ward & Brown, Corpus Christi, Reese Wade, Beeville, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellants.
    Small, Small & Craig, Austin, Fred C. Reeder, George Prowse, Corpus Christi, for appellees.
   POPE, Justice.

E. T. White and more than one hundred other Aransas County taxpayers sought to enjoin the County from paying Thos. Y. Pickett & Company, Inc., the sum of $5,648.-79, under a contract Pickett had with the County for making surface evaluation of lands. They claimed that the contract was void, but the trial court denied their prayer for injunction. The taxpayers have appealed. They argue that (1) Aransas County lacked statutory authority to employ Pickett to appraise property subject to taxation, (2) the employment of Pickett amounted to a usurpation of the powers vested in the Tax Assessor, (3) the State Comptroller should have joined in the contract as required by Article 7264a, Vernon’s Ann.Civ. St., (4) the amounts payable to Pickett under the contract were not budgeted for 1960 and 1961, and (5) the contract created a debt for future years without complying with the constitutional requirement for a tax levy to provide for the interest and sinking fund.

Aransas County and Pickett made a contract in July, 1959, by which Pickett agreed to make an analysis and survey of all property in Aransas County as of January 1, 1960, and also as of January 1, 1961. The contract provided that Aransas County would pay Pickett upon the performance of its work, the sum of $5,387.50 on January 3, 1960, and a like sum on January 3, 1961. The County made the first payment, but the second payment was withheld when this suit for injunction was filed.

The first three points listed above were raised and rejected in Pritchard & Abbott v. McKenna, Tex., 350 S.W.2d 333, which was decided after this appeal was perfected. Actually the contract upon which Pickett relies is more carefully drawn than the one which was approved in the McKenna case. The contract in this case does not involve the Tax Assessor. Therefore, it more clearly satisfies the legal separation of duties of the Board of Equalization and the Tax Assessor than the contract in the McKenna case. The record also shows that the budgets for both 1960 and 1961 made provision for payment to Pickett.

The final point, however, is more serious. The contract between Aransas County and Pickett created a debt as distinguished from an expense payable out of current revenues. Section 7, Article 11 of the Texas Constitution, Vernon’s Ann.St. states: “But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent (2%) as a sinking fund; * * A debt has been defined as an obligation which becomes a burden on the future revenues of the county, one which is not to be paid during the current year and out of the current revenues. Texas & N. O. R. Co. v. Galveston County, 141 Tex. 34, 169 S.W.2d 713, 715; Stevenson v. Blake, 131 Tex. 103, 113 S.W.2d 525; Austin Bros. v. Patton, Tex.Com.App., 288 S.W. 182, 190; McNeill v. City of Waco, 89 Tex. 83, 33 S.W. 322. The contract in this case provided for two payments, one during 1960 and the other during 1961. This excludes the idea that the consideration was payable out of current revenues as distinguished from future funds. Stevenson v. Blake, supra; Andrus v. Crystal City, Tex.Com.App., 265 S.W. 550, 552; McNeill v. City of Waco, supra; City of Terrell v. Dissaint, 71 Tex. 770, 9 S.W. 593; Sumerlin v. Fowler, Tex.Civ.App., 229 S.W.2d 75; Rogers Nat. Bank v. Marion County, Tex.Civ.App., 181 S.W. 884.

Since the contract created a debt, it became necessary for the county to provide a fund for its payment. The County did that. Article 7212 designates the funds from which payments to appraisers may be made. The contract provides that payment shall be made from the funds made available by Article 7212. The total amount payable under the contract was specifically set aside out of those funds. The Commissioners Court approved each of those steps, and as a part of the same order made a levy to produce the amount required to make the payments under the contract.

These steps were a compliance with the Constitutional requirements. Mitchell County v. City Nat. Bank, 91 Tex. 361, 43 S.W. 880, 883-885; Hardeman County v. Foard County, 19 Tex.Civ.App. 212, 47 S.W. 30, 33.

The judgment is accordingly affirmed.

      . “PARTY OP THE SECOND PART agrees and obligates itself to make such analysis and survey as of January 1, 1960 and to carry forward such survey as of January 1, 1961, which shall include all of the information which Second Party is able to procure pertaining to the character, quality and quantity, as well as the value of any real estate, improvements, personal properties, public utilities, commercial property and watercraft of every nature, so as to enable Party of the Second Part to prepare and file with the Board of Equalization, as hereinafter provided, a complete tabulation of appraised values pertaining to such properties as are duly rendered to or assessed by the Tax Assessor and Collector, for such Board’s use in reviewing and equalizing the renditions and assessments against such properties submitted to it by the Tax Assessor and Collector for said Board’s approval.”

      . “ * * * provided however, that if the Commissioners Court of any county who contracts with or employs any individual, firm, or corporation to compile taxation data, the compensation of such individual, firm, or corporation may be paid on a pro rata basis from each county fund receiving any taxes derived from such valuation.”

      . “POR AND IN CONSIDERATION of the experienced, skilled services of Second Party in performance of the obligations devolving upon them hereunder, First Party agrees and obligates itself to pay Second Party out of the Various Funds of Aransas County, Texas, as provided in Article 7212 R.S., a sum equal to Ten Thousand and Seven Hundred and Seventy Five ($10,775.00) Dollars, as full compensation for the services rendered Aransas County under the terms of this agreement. * * *
      “Payment in the form of warrants legally drawn against the Various Funds of said County shall be made on this contract as follows: Five Thousand and Three Hundred and Eighty Seven Dollars and Fifty Cents ($5,387.50) on the Third day of January 1960 and the balance of Five Thousand and Three Hundred and Eighty Seven Dollars and Fifty Cents ($5,387.50), shall be paid on January 3, 1961.”

      . “ * * * and to provide for the payment of said warrants, such an amount of money as is necessary for said purpose is hereby set aside and appropriated out of the moneys in, or which shall come into said Various Funds for the years 1960 and 1961. * * *

      . “3. For the purpose of paying the amount to become due Thos. Y. Pickett & Company, Incorporated, under this Contract during the year 1960, there is hereby levied for the year 1959 a tax against all taxable property in said County at a rate sufficient to produce such an amount, as provided in this contract, and the tax thus levied shall be collected along with the other County taxes levied and to be levied for said year.
      “4. For the purpose of paying the amount to become due Thos. Y. Pickett & Company, Incorporated, under this contract during the year 1961, there is hereby levied for the year 1960 a tax against all taxable property in said County at a rate sufficient to produce such an amount, as provided in this contract, and the tax thus levied shall be collected along with other County Taxes levied and to be levied for said year.”


author: DIXON, Chief Justice.

text:
    UNITED STATES FURNITURE CORP., Appellant, v. TWILITE MOBILE HOMES MFG. CO., Inc., Appellee.
    No. 15991.
    Court of Civil Appeals of Texas. Dallas.
    March 23, 1962.
    Ungerman, Hill, Ungerman & Angrist, Robert W. Austin, Dallas, for appellant.
    Mackin, Goldsmith & Burdette, Fort Worth, for appellee.
   DIXON, Chief Justice.

This is an appeal from an order sustaining a plea of privilege.

Appellant United States Furniture Corporation, a Texas Corporation, brought suit in Dallas County, Texas against Twilite Mobile Homes Manufacturing Company, Inc., appellee, also a Texas corporation, for $1729.70 on sworn account for merchandise sold and delivered pursuant to Art. 2226, Vernon’s Ann.Civ.St.

Appellee filed a plea of privilege alleging that the County of its residence is Denton County, Texas, that its principal place of business is in Denton County, and that it does not maintain an office in Dallas County, nor a registered agent in such County, nor has it done so at any time pertinent hereto.

Appellant filed a controverting affidavit alleging that appellee is a private corporation, and that venue of the cause of action is maintainable in Dallas County under Subdivision 23 of Art. 1995, V.A.C.S.

In its original petition appellant alleged that appellee is a corporation “duly incorporated and existing under and by virtue of the laws of the State of Texas, with the address of its registered office and registered agent being 1910 Story Road, in the City of Irving-, County of Dallas and State of Texas.”

The evidence introduced in behalf of appellant included a certified copy of appel-lee’s Articles of Incorporation, dated December .14, 1955, and one Amendment dated October 8, 1956.

The original Articles of Incorporation of appellee conform to V.A.T.S. Texas Business Corporation Act passed by our Legislature in 1955. Pursuant to Art. 2.09 of the Act the Articles of Incorporation contain this recital: “The post office address of its initial registered office is 1910 Story Road, Irving, Texas, and the name of its initial registered agent at such address is T. B. Roberts.”

The Amendment to the original Articles changed the name of the corporation to Twilite Mobile Homes Mfg. Co. Inc., and increased the capital stock and number of shares of the corporation. No change was made in the address of the registered office or the registered agent.

T. B. Roberts, president of appellee corporation, was a witness. He testified that appellee now maintains its place of business at Roanoke, Denton County, Texas, and has no office elsewhere. Formerly, before moving to Roanoke, appellee maintained an office at Irving, Texas, in Dallas County, Texas at 1910 Story Road. The removal was made in July 1960, and appellee has not had an office or an agent in Dallas County since the removal to Roanoke. The items sued on in this case were shipped to Denton County and received by appellee in Denton County.

No amendments to the corporate charter have been filed since the amendment of 1956 changing the corporate name and the number of shares of stock.

OPINION

In its first point on appeal appellant contends that the undisputed facts in this case bring it within the provisions of Subdivision 23 of Art. 1995, V.A.C.S. wherein it is provided that suits against a private corporation may be brought in the county in which its principal office is situated. More particularly appellant asserts that under the Texas Business Corporation Act the designation of a registered office and agent has the effect for venue purposes of designating the principal office of appellee.

In reply appellee contends that its principal office at the time suit was filed was actually situated in Roanoke, in Denton County, Texas, and has been so situated since its removal in July 1960 from Irving in Dallas County to Roanoke hence venue cannot be retained in Dallas County under the cited provisions in Subdivision 23 of Art. 1995.

In view of these contentions we deem it appropriate at this point to refer to the Texas Business Corporation Act and certain of its articles.

The Act became effective September 6, 1955. Certain types of corporations are excepted from its provisions. All other new domestic corporations must be organized under the Act. As of September 6, 1955 existing domestic corporations and foreign corporations with a permit to do business in Texas were given a five year period within which to adopt the provisions of the Act. After the expiration of said five year period the terms of the Act are made applicable to all domestic and foreign corporations. Art. 9.14 of the Act.

Arts. 2.09 and 3.02, subd. A(10) of the Act expressly provide that each corporation shall have and maintain in this State, and its Articles of Incorporation shall set forth: (1) a registered office which may be, but need not be, the same place as its business, and (2) a registered agent whose business office is identical with the corporation’s registered office.

Art. 2.10 of the Act provides a convenient way for a corporation to change its registered office and its registered agent.

Arts. 9.15 and 9.16 of the Act provide for a limited repeal of prior statutes pertaining to corporations.

Nowhere in the Texas Business Corporation, so far as we know, is it required that a corporation formed under its terms should designate in its Articles of Incorporation or elsewhere the location of its principal office. The old statute Art. 1304, V.A.C.S. required the designation of a place or places where business was to be transacted, but the old Art. 1304 has been repealed. It was under the terms of the new statute, not the old, that appellee was incorporated.

We find no cases in point on the question raised by appellant’s first point. However, we have concluded that our Legislature in enacting Arts. 2.09 and 3.02, subd. A(10) of the Business Corporation Act and in repealing old Art. 1304 V.A.C.S. intended that the designation of a registered office should have the effect, for venue purposes, of designating the principal office of a corporation. Therefore, appellant is correct in its contention that venue of this case may be retained in Dallas County.

A statement so construing the Act will be found in 14 Tex.Jur.2d 557. And in Vernon’s Annotated Texas Statutes, Vol. 3-A, page 182 the Bar Committee’s Comment on Art. 3.02 of the Act is as follows: “The term ‘Post Office address’, as used in Section A(10) of this Article, means City of residence, plus the street address, if there is a street address.” (Emphasis ours.)

We call attention, too, to Arts. 7.03, 7.06 and 8.16 of the Act in which Articles venue is provided for certain types of suits in the county in which the registered office of the corporation is situated.

According to the Bar Committee, which helped draft the Act, the primary purpose in requiring the continuous maintenance of a registered office and a registered agent is to provide an agent for service of process .and other notices.

Our Legislature has not amended Subdivision 23, of Art. 1995 to accord in exact language to the wording of Arts. 2.09 and 3.02, subd. A(10). Nevertheless, we believe that in seeking to arrive at the Legislature’s intent it is reasonable to construe said Articles of the Act as establishing the residence of a corporation for venue purposes. In this case appellee could easily have amended its Articles of Incorporation to show the addresses of its registered office and registered agent in Denton County. It failed to do so.

We know of no provision in our statutes requiring a corporation to designate the location of its main office. If we were to reject Arts. 2.09 and 3.02, subd. A(10) of the Act as establishing residence for venue purposes it would be difficult, indeed, if not impossible in some instances, for a plaintiff to know or find out where a corporation’s principal office might be located in instances where a corporation maintains offices, plants or installations in different counties in this State.

We do not believe that the removal of its office from Dallas County to Denton County is decisive of the question at issue in this case. It has long been the law of this State that a corporation is not at liberty to change its domicile at will. In International & G. N. Ry. Co. v. Anderson County, 106 Tex. 60, 156 S.W. 499, 501, our Supreme Court said:

“Unlike a natural person, a corporation is not at liberty to change its domicile at will. Whether expressed in the right of charter designation or in a general statute, which contravenes such right, the law governs its location, and there is no power in a corporation to establish a domicile in fact which will prevail over that prescribed by law.”

The case of Hawk & Buck Co. Inc. v. Cassidy, Tex.Civ.App., 164 S.W.2d 245 involved a venue question when a corporation had undertaken to change its place of business from one county to another, but had not amended its charter to show the change. The court held that though the corporation no longer conducted its business in the County designated in its charter, it was bound by the charter designation, and venue could be maintained in the County so designated. See also 18 C.J.S. Corporations § 176, p. 585. Appellant’s first point on appeal is sustained.

Appellant in its second point says that it may retain venue in Dallas County under Subdivision 23 of Art. 1995 because part of its cause of action arose in Dallas County.

Apparently appellant bases its claim under this point on the fact that its invoices contain this recitation: “This and all subsequent purchases payable in Dallas, Dallas County, Texas.” Appellant has not sought to invoke Subdivision 5, Art. 1995, V.A.C.S. But it has cited us to several cases involving Subdivision 5 and invoices with recitations similar to the recitation here. Under these holdings, according to appellant, part of the cause of action arose in the County of residence, so venue may be there retained.

We see no merit in appellant’s second point. We are aware of cases in which it is held that when a purchaser has signed an invoice at the time or before delivery of the merchandise and the invoice contains such a stipulation, the invoice is a written contract within the meaning of Subdivision 5, Art. 1995, V.A.C.S. Newman v. Texas Farm Products Co., Tex.Civ.App., 346 S.W.2d 151. But the facts here do not bring it within this rule. There is no evidence that appellee signed any invoice, or that any invoice was received before delivery of the merchandise described in the invoice. We hold here as we did in Back v. Radio City Distributing Co., Tex.Civ.App., 286 S.W.2d 672 that a completed oral contract cannot be enlarged by a later ex parte statement. Appellant has not proved that a part of the cause of action arose in Dallas County within the meaning of Subdivision 23, of Art. 1995, V.A.C.S. Appellant’s second point on appeal is overruled.

Appellee in its second counterpoint alleges that the court did not err in sustaining the plea of privilege for the reason that plaintiff, in its controverting affidavit, did not specifically allege venue facts under Subdivision 23 of Art. 1995, V.A.C.S.

Appellant did specifically allege venue facts in its petition. In its controverting affidavit it referred to its petition and made the petition a part of the controverting affidavit “as fully and to all intents and purposes as if the same were copied herein verbatim.” This was sufficient. See 43-B Tex.Jur. 320-322 and cases there cited. Appellee’s second counterpoint is overruled.

The judgment of the trial court sustaining appellee’s plea of privilege is reversed and judgment is here rendered overruling said plea of privilege.


author: CHAPMAN, Justice.

text:
    Edna MORRISON et vir, Appellants, v. Merrill W. BUCKLES et al., Appellees.
    No. 7111.
    Court of Civil Appeals of Texas. Amarillo.
    March 19, 1962.

      Clayton, Martin & Harris, Jack Hazle-wood, Amarillo, for appellants.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellees.
   CHAPMAN, Justice.

On April 14, 1961 appellants, Edna Morrison and Malcom Lee Morrison, filed suit in the 47th District Court of Potter County seeking an injunction restraining and enjoining appellees, Merrill W. Buckles and the City of Amarillo Animal Control Authority, from “molesting, badgering, and interfering with appellants’ rights of possession and enjoyment of a boxer dog” owned by them. The actual value of the dog was alleged to be in excess of $500.00. The petition alleged appellee, Buckles, on behalf of the City of Amarillo, was threatening ex parte and unilaterally to dispose of the dog without the aid of a proper court decree and without an order of a court of competent jurisdiction vesting legal rights of possession of the dog in any of the defendants.

A temporary restraining order was issued on the petition and the case was set down for a hearing on the temporary injunction for April 21, 1961. At the hearing, while the first witness, Mr. Buckles, was on the stand it was developed by a question from the trial court to appellants’ counsel that the dog was not in the City of Amarillo. The reason stated by counsel was: “We can’t get him in here because they [the defendants] are going to take him, the dog, into possession and kill him,” to which the court replied:

“That is something I do not believe, and there is no testimony offered here —[to witness] — do you intend to take the dog and kill him if he is brought into the City of Amarillo, without any proceedings at all — ?”

The witness never answered the question and the following proceedings took place:

“Mr. Hazlewood: Let us cross examine him on that—
“The Court: Well, the dog is not here, and I have no jurisdiction of him. If you wish to submit the dog before the Court you may do so. This is purely an ancillary proceeding, and the dog is not here.
“Mr. Hazlewood: The dog is our property, and in order to protect the dog we have taken him out of town
“The Court: As long as you are trying to get me to adjudicate in advance what my actions might be, or what the rights of the City might be, it is purely a declaratory judgment, and I don’t intend to render such judgment.
“Mr. Martin: All we want is a temporary order pending final trial of this cause, enjoining them from disturbing our rights in that dog.”

We believe the trial court was guilty of a clear abuse of discretion in the abrupt manner in which he disposed of the case before the evidence had been developed.

Facts showing jurisdiction were asserted in the allegations of appellants’ petition wherein it was alleged the actual value of the dog was in excess of $500.00. Article 5, Section 8, Vernon’s Texas Constitution, Vernon’s Ann.St.; Article 1906, Section 6, Vernon’s Ann.Texas Civ.St. Such pleadings were sworn to so we would have to assume the jurisdictional matters would have been testified to had the court not abruptly ended the proceedings when counsel advised him the dog was out of the city temporarily for protection.

Since the court ended the hearing as he did Mr. Buckles never answered the question the court asked him as to whether he intended to take the dog and kill him “if he is brought into the City, without any proceedings at all — .” Additionally, the City was not given an opportunity to make proof of any rights it may have had to possession of the dog. Its rights could only be by ordinances, which must be pleaded and proven like other facts. State ex rel. Osborn et al. v. City of McAllen et al., 91 S.W.2d 688 (Tex.Com.App.—Adopted); City of Austin v. Walton, 68 Tex. 507, 5 S.W. 70.

The only question to be determined on the hearing for temporary injunction was whether the status quo of the subject matter should have been preserved pending a trial on the merits. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549.

The case simply was not allowed to be developed from which such facts could have been determined. Accordingly, it is reversed and remanded with instructions to permit the parties to develop their testimony.


author: COIL, Commissioner.

text:
    CITY OF CREVE COEUR, a Municipal Corporation, Appellant, v. CREVE COEUR FIRE PROTECTION DISTRICT, a Municipal Corporation, Respondent.
    No. 48872.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied April 9, 1962.

      Wyne & Delworth, William H. Wyne, Jr., Clayton, for appellant.
    T. Douglas Moore, Clayton, for respondent.
   COIL, Commissioner.

The City of Creve Coeur has appealed from a judgment dismissing its petition seeking declaratory and other relief against the Creve Coeur Fire Protection District.

Plaintiff for its claim against defendant averred in substance and effect that it was a fourth class city and defendant was a fire protection district which had been created by decree of the St. Louis County Circuit Court dated December 30, 1958; that the district included the city and a portion of the unincorporated area of St. Louis County; that in February 1957 city contracted with St. Louis County Water Company whereby that company agreed to furnish and maintain and city agreed to pay for certain fire plugs $36 per plug per year for twenty years for the city’s use for fire protection; that pursuant to the contract 213 fire plugs were installed (203 prior and 10 subsequent to defendant’s formation) for which the city had paid and would continue to pay water company $36 per plug per year rental; that plaintiff had demanded that defendant assume the obligation to furnish the city fire protection, including the obligation to pay the fire plug rental for which the city was obligated, and had demanded that defendant reimburse the city for the rental money it had expended since defendant’s formation; that since it came into existence defendant had used and had the benefit of the fire plugs in question; that defendant’s refusal to pay city the yearly amount due water company for said plugs and to reimburse city for money it had expended to date, had and would continue to place an unfair tax burden on Creve Coeur residents; that a controversy exists between plaintiff and defendant as to the proper construction and interpretation of the statutes under which defendant was formed (Chapter 321, RSMo 1959, V.A.M.S.) in that plaintiff contends and defendant denies that defendant, under the circumstances, is primarily obligated to pay for the maintenance-of said fire plugs.

Plaintiff sought a judgment declaring the rights and duties of the parties under the applicable law, to the effect that defendant, under the circumstances averred, was obligated to provide and maintain the fire plugs in question for fire protection within the city and was obligated to-assume (as between plaintiff and defendant) plaintiff’s present contractual obligation to the water company; and further, plaintiff sought a money judgment against defendant in an amount sufficient to reimburse city for the money (with interest) it had expended for the fire plugs since the date of defendant’s formation, and such further relief as to the court might seem proper.

Defendant’s motion to dismiss included, among other stated grounds, those here urged to sustain the trial court’s action that the petition failed to state facts showing the existence of a justiciable controversy between the parties presently appropriate for judicial determination, and that plaintiff had failed to join a necessary party, viz., the St. Louis County Water Company.

The trial court sustained defendant’s motion for the stated reasons that it lacked “jurisdiction to grant the relief requested because it involves a matter for determination of the Board of Directors of the Fire Protection District as part of its police powers, and on the further grounds that Plaintiff’s first amended petition fails to state sufficient facts to invoke this Court’s jurisdiction for an adjudication of plaintiff’s rights pursuant to Sec. 527.010 to 527.140, V.A.M.S.”

We have jurisdiction because the averments of the petition demonstrate that the amount in dispute exceeds $15,000.

Defendant reminds us of certain, and we are mindful of those and other, principles applicable to declaratory judgment actions, among which are these: A declaratory judgment action is a particularly appropriate method for determining a controversy involving the construction of a statute, but the construction so sought must be a necessary or desirable one in determining an actual controversy appropriate for judicial determination, City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411, 412 (2-4); a declaratory judgment action properly may not be used to have adjudicated a hypothetical or speculative situation which may never come to pass, Transport Mfg. & Equipment Co. v. Toberman, Mo., 301 S.W.2d 801, 806(3, 4); M.F.A. Mutual Insurance Co. v. Hill, Mo., 320 S.W.2d 559, 564(8). In determining whether any petition, including one purporting to state a cause of action for a declaratory judgment, states a claim, its language is “to be given a liberal construction, according the averments their reasonable and fair intendment — fair implication should be indulged from the facts stated. So considered, a petition should be held sufficient if its averments invoke substantive principles of law which entitle plaintiff to relief.” Wells v. Henry W. Kuhs Realty Co., Mo., 269 S.W.2d 761, 767(1), 47 A.L.R.2d 1038. In testing the sufficiency of a petition purporting to state a claim for declaratory relief the question is not whether the petition shows that plaintiff is entitled to the declaratory relief he seeks in accordance with the theory he states, rather, it is whether under the averments of his petition he is entitled to a declaration of rights at all. Transport Mfg. & Equipment Co. v. Toberman, supra, 301 S.W.2d 805(1). A petition for a declaratory judgment properly may seek additional relief, Hyde, Declaratory Judgments, 26 Wash.U.Law Quarterly 484, 485, Hudson v. Jones, Mo.App., 278 S.W.2d 799, 802, including a claim for damages, Anderson Declaratory Judgments, Vol. I, sec. 249, p. 577. Such separate claims should be stated in separate counts; still, the pertinent question on motion to dismiss is whether under the allegations made plaintiff has stated enough to invoke substantive principles of law which entitled him to some relief, Wells v. Henry W. Kuhs Realty Co., supra. And it is not decisive that a plaintiff is not entitled to all the relief sought, so long as he has averred enough to entitle him to some relief. Anderson, Declaratory Judgments, Vol. I, sec. 307, pp. 708, 709.

Considered in the light of the afore-stated principles, we are of the view that the present petition sufficiently stated claims for declaratory and other relief.

We have no doubt that a plaintiff may not sufficiently state a claim for declaratory relief by simply averring that a proper construction of specified statutes entitles him to certain rights and places certain obligations on a defendant, if it is apparent that the statutes in question are, for example, wholly irrelevant to a determination of any matters between plaintiff and defendant, or if it is obvious beyond peradventure of doubt that any claim for a declaration of rights under any construction of the statutes in question is wholly without substance. But it is not the function of the trial court on a motion to dismiss or of this court on appeal from a judgment of dismissal to make an analysis of the law under which the rights are claimed or to construe the statutes in question or to determine on the merits whether plaintiff is entitled to the declaratory relief he seeks in accordance with the theory he states. If it appears that it properly may not he said with certainty that there is no basis for plaintiff’s contention that it is entitled to a declaration of rights and obligations by reason of the averments of its petition, the motion to dismiss should be denied and plaintiff afforded an opportunity to adduce evidence to sustain its allegations.

We have examined the statutes referred to in the present petition under which defendant fire protection district was organized, secs. 321.010-321.470 inclusive, RS Mo 1959, as amended Laws 1961, and V.A. M.S., in the light of the law as announced in Wellston Fire Protection Dist. v. State Bank & Trust Co., Mo.App., 282 S.W.2d 171, to the effect that when the legislature provided the statutory plan embodied in the sections above referred to for the establishment of fire protection districts, it intended to and did withdraw the authority it had theretofore granted municipalities (which became a part of a fire protection district) to exercise their police power to afford fire protection for the safety of their citizens, and conferred the exclusive authority on the fire protection district to exercise the police power to afford fire protection for the safety of the citizens of municipalities located within such fire protection districts. Such examination makes it clear enough that we properly may not say with certainty that there is no possible basis for plaintiff’s contention that it is entitled to a declaration of the rights, duties, and obligations of the city and the fire district under the law as applied to the particular factual circumstances averred in the petition. And plaintiff’s averments make it plain that there is a justiciable issue in that there is an actual controversy between the city and the fire protection district as adverse parties in fact, which is presently appropriate for judicial determination.

We are of the opinion that plaintiff, under the averments of its petition, is, at least, entitled to a declaration of its rights as to these matters: whether defendant; in providing fire protection for the inhabitants of city, when it actually uses the fire plugs for which plaintiff pays and is obligated by contract to continue to pay, is required as between plaintiff and defendant to assume the city’s obligation to maintain those phtgs, including the assumption of the city’s contract monetary obligation, and if defendant is so obligated, whether such assumption continues only so long as the district continues to use said plugs; and further, we are of the view that whether defendant is or is not required to so assume the city’s obligation for any length of time, plaintiff is entitled to have adjudicated the question whether it is entitled to a money judgment against defendant for the reasonable value of the use of said fire plugs, and, if plaintiff is so entitled, the reasonable value of such use should be determined and a money judgment entered therefor,

Defendant contends that the trial court may exercise its discretion in determining whether to grant declaratory relief and, we suppose, intended to further contend that our review is limited to whether there was an abuse of discretion. It is clear, however, that whatever discretion a trial court may have with respect to granting declaratory relief does not exist when ruling a motion to dismiss. Anderson, Declaratory Judgments, Vol. I, sec; 320, p. 753.

Defendant contends further that the trial court properly dismissed the petition because plaintiff did not join the water company. The argument in support is to the effect that water company was a necessary party because plaintiff sought to substitute defendant as the obligated party in city’s contract with the company. If the petition compelled that construction, water company would, of course, be a necessary party; but in our view, the petition reasonably construed makes it reasonably clear that plaintiff seeks relief only as between it and defendant and did not intend to attempt to affect city’s primary obligation to the water company. If it may be said that the averments of the petition are not entirely clear in that respect, defendant may proceed for clarification; and, even though water company is not a necessary party, if defendant believes company is a proper party, it may present such view to the trial court.

Respondent’s motion to dismiss the appeal and to affirm the judgment is without merit and is overruled.

The judgment is reversed and the case is remanded.

HOLMAN and HOUSER, CC, concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.


author: HOLMAN, Commissioner.

text:
    Betty Lee CONLEY, Appellant, v. Jerry FUHRMAN, Respondent.
    No. 48828.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied April 9,1962.

      Robert E. Coleberd, Arthur R. Kincaid, Hale, Coleberd, Kincaid & Waters, Liberty, for appellant.
    Sevier & Turnage, Robert F. Sevier, William E. Turnage, Liberty, for respondent.
   HOLMAN, Commissioner.

In this action plaintiff sought to recover damages in the sum of $25,000 for personal injuries alleged to have been sustained as a result of defendant’s negligence. The verdict and judgment were in favor of defendant and plaintiff has appealed.

Defendant in his answer set up three defenses. The first two were a denial of plaintiff’s allegations and a plea of contributory negligence. The third was based on the alleged fact that on February 12, 1959, plaintiff executed an agreement whereby, for a valuable consideration, she released defendant from any and all claims and liabilities to plaintiff. In her reply plaintiff alleged that the said release was obtained without consideration and through the false representation of an agent of defendant’s liability insurance carrier. Upon motion of defendant the court ordered a separate trial of the issue relating to the fraudulent procurement of the release. At the conclusion of that trial the jury returned a verdict reciting “that the release is valid and binding on plaintiff.” The court thereupon entered a judgment to the effect that the release was valid and that “plaintiff recover nothing from the defendant on her petition for damages.” Although the trial related only to the issue concerning the validity of the release, the effect of the verdict was to deny plaintiff a recovery upon her claim for $25,000, as indicated by the judgment, and hence we have jurisdiction of the appeal by reason of the amount in dispute. Section 477.040 RSMo 1959, V.A.M.S.; Crouch v. Tourtelot, Mo.Sup., 350 S.W.2d 799[3]; Jenkins v. Jenkins, Mo.Sup., 251 S.W.2d 243[2],

At about 7 a. m. on February 9, 1959, plaintiff was involved in a five-car collision of automobiles on Highway No. 69. According to her testimony the two cars ahead of her stopped because of traffic. She was able to stop her car and the car immediately behind her stopped, but the fifth car, driven by defendant, struck car No. 4 with enough force to cause it to collide with the rear of plaintiff’s car and, in turn, pushed her car into the car ahead and it was caused to strike car No. 1. Plaintiff and her husband owned the car she was driving and they carried liability and $50 deductible collision insurance with Farm Bureau Mutual Insurance Company. It later developed that two of the other cars involved in the collision heretofore described, including defendant’s, were insured by Farm Bureau. Although damaged to the extent of $293.96 (the cost of repair) plaintiff’s car was “driveable” and she proceeded on to her work. At about 4 p. m. she called the Farm Bureau office in Liberty and reported the collision to Mrs. Pauline Thomas. She was told by Mrs. Thomas to come to the office in a day or so and they would see about getting her car fixed.

Plaintiff went to the Farm Bureau office at about S p. m. on February 12, 1959 where she met (apparently by appointment) Mr. W. H. Brooks, an adjuster for Farm Bureau Mutual. The office secretary, Mrs. Thomas, was also present. Plaintiff testified that they talked about the collision and Mrs. Thomas said they would fill out some forms and would “get my car fixed.” She asked if anyone was hurt and “I said, ‘No, I thought mine was nerves but my head was awfully heavy’ ”; that Mr. Brooks then said that the car would have to be fixed and they prepared the papers and “wanted me to sign them and I asked them if it was any kind of a release and they said, no, it was just to get my car fixed and ⅜ * * Mr. Brooks laid the paper on the desk; he never turned loose of it and he told me to sign my name and beings the car and the policy was in both names, I could sign my husband’s. I signed both names and then he pulled the paper back”; that after the instrument was signed “they gave me a check for $50; I took it to the Shepherd Motor Company and they held it until they fixed my car.”

Upon cross-examination plaintiff testified that when she first called Mrs. Thomas she told her she was “pretty well shook up” but as far as she knew she was not hurt; that when they “fixed the paper” (release) Mr. Brooks “asked me if I would sign it and I asked him if it was a release and he said, ‘It’s to get your car fixed’ ”; that she did not read the release; that no one kept her from reading it; that Mr. Brooks did not make any effort to cover it up; “he handed it over the desk and I signed it and he pulled it back”; that in discussing damages she told them she hadn’t yet obtained an estimate of the car damage but whatever that amount was she would only have to pay the first $50 and “the check they gave me was to pay that item” ; that she applied the check on the car damages because “that was what it was given to me for”; that she was 40 years old, had completed eight grades of school and could read and write; that since she did not think she had been hurt it appeared the only damages at that time was to the car and Mr. Brooks “handed me the $50 check and told me to get my car fixed and they would pay the rest of it”; that “the papers I signed was to get my car fixed and I did not know it was to be a release”; that she had known Mrs. Thomas for ten or twelve years but had not met Mr. Brooks until February 12.

Plaintiff offered to prove that she had been injured in the collision in question but did not learn of the injuries until shortly after the release had been signed, and that on February 16, 1959, she reported her injuries to the Farm Bureau Insurance Company, but the court sustained an objection to that offer on the ground that the proof was immaterial. The release and two checks were admitted in evidence. The release provided that in consideration of the $50 the Conleys released Jerry W. Fuhr-man for “all known and unknown personal injuries and property damge resulting from” the accident heretofore described. The $50 check heretofore mentioned had on the face thereof, “Kind of Loss, P.D.” Both Mr. and Mrs. Conley endorsed that check before it was delivered to the Shepherd Motor Company. Another check was issued on March 10, payable to Shepherd Motor Company in the amount of $243.96 upon the face of which appeared, “Kind of Loss, Coll. 50.”

On the part of the defendant, William H. Brooks testified that he had been employed by Farm Bureau Mutual as an adjuster from 1957 to October 1, 1959, and is now employed in the same capacity with Western Adjustment Company. He testified that he met plaintiff on February 12 and spent about 45 minutes discussing the accident; that his company carried the insurance on cars Nos. 1, 3, and 5 in the collision and he therefore told plaintiff that he was interested in settling any claim she had against Mr. Fuhrman, driver of car No. 5; that it was then determined that her only expense would be $50 and she agreed to accept $50 and to release defendant; that Mrs. Thomas filled out a release and he explained to her that it was a release of her claims and put it in front of her, handed her his pen, and he then left the room for a few minutes; that when he returned the release had the names of Mr. and Mrs. Conley signed thereto; that plaintiff had stated in the conversation that there were no injuries. On cross-examination the witness stated that the letters “P.D.” on the face of the $50 check means “property damage” which indicated that plaintiff had been paid for property damage.

Mrs. Pauline Thomas testified that she was employed by the Clay County Farm Bureau which furnishes an office and a secretary for use of the Farm Bureau Mutual Insurance Company; that she had known Mrs. Conley many years and had known Mr. Conley all of her life; that when plaintiff called on February 9 and reported the accident she made an appointment for plaintiff to come in the following Thursday afternoon and told her that the staff adjuster would be there at that time; that when plaintiff came to the office Mr. Brooks was present. They discussed the collision, and in discussing damages plaintiff said she had not suffered any personal injuries — only property damage to the car, and she and Mr. Brooks accordingly agreed on the sum of $50 as compensation for her loss; that she filled in the blanks on the release and Mr. Brooks handed it to plaintiff; that plaintiff looked at it for a few minutes and then signed the release; that she had mentioned to plaintiff that it was necessary to have her husband’s name on the release and plaintiff said she could sign for him and she accordingly did so1.

On cross-examination Mrs. Thomas stated that it was her duty to prepare accident reports for policyholders of the insurance company and she usually prepared several each day and would then contact the adjuster; that in handling collision claims she would have the policyholder sign an “authorization repair order” but that releases were signed by claimants who were not insured by Farm Bureau Mutual against persons who were so insured; that the only claim plaintiff made was for the car damage and the $50 was paid to her for car damage, plus the balance payable under her collision policy; that in this instance plaintiff had to sign a release because, although she was a policyholder, she was making an adverse claim against another policyholder.

Plaintiff filed an after-trial motion in which she alleged that the court should set aside the verdict and judgment for defendant and enter judgment for plaintiff. Her first point on appeal is that the trial court erred in overruling that motion. Her theory in support of that contention is that the agents for defendant’s insurer concede that the $50 was paid for the damage to the car and therefore there was no consideration for that part of the release which related to personal injuries.

We do not agree with plaintiff’s contention. In the first place it should be noted that where, as here, the execution of the release is admitted, plaintiff had the burden of proving the release invalid. Dixon v. Business Men’s Assurance Co. of America, 365 Mo. 580, 285 S.W.2d 619. In that situation a verdict should not have been directed for plaintiff unless the testimony of the agents of defendent’s insurer conclusively showed the invalidity of the release. It did not so show. Plaintiff’s contention undoubtedly arises from the fact that the amount of the payment for the instant release, i. e., $50, was arrived at on the basis of the amount of plaintiff’s property damage. However, that fact does not indicate that defendant’s liability insurer would pay the full amount of plaintiff’s property damage unless it could obtain, as an additional consideration, a release of all claims of plaintiff and her husband against defendant. That such was the intention of Mr. Brooks clearly appears from his testimony as follows: “I asked her what her expense would be, outside cost, since she had a contract with our company for her own vehicle and it was determined through conversation that the only outside expense would be approximately fifty dollars. I told Mrs. Conley that we desired a release or a contract on behalf of Mr. Fuhr-man for any liability that he might be responsible for and asked, would she accept the fifty dollars and release Mr. Fuhrman. * * * I told her, that for her to receive payment, under Mr. Fuhrman’s contract, that our duty was to release Mr. Fuhrman and that for her to receive any outside claim that it would be necessary that she sign a release or a contract thereby releasing Mr. Fuhrman.” It may be inferred from the quoted testimony that the insurance company would not have settled plaintiff’s claim for property damage unless it could obtain a release of all claims the Con-leys might have against defendant Fuhr-man. The reason would appear to be that unless such a release was obtained the insurer could not close its file but would have to be prepared to meet any other claims that might thereafter be presented by the Conleys during the limitation period. As indicated, we rule that the trial court did not err in overruling plaintiff’s motion for judgment.

On the other hand, defendant has briefed the contention that plaintiff did not make a submissible case on the issue of the invalidity of the release and therefore his motion for a directed verdict, filed at the close of all the evidence, should have been sustained. That contention is based upon the alleged negligence of plaintiff in failing to protect her own rights by reading the release. In determining that question we will view the evidence in the light most favorable to plaintiff.

Plaintiff’s testimony indicates quite clearly that she did not understand that she was settling any claim except the damage to her car and that there was no mental agreement on her part to settle any personal injury claim. The provisions of the release are to the effect that she was settling all claims against defendant, including “known and unknown personal injuries.” In considering the question here presented it should be noted that defendant does not question the sufficiency of plaintiff’s evidence in regard to the fraudulent representations of Brooks, agent for defendant’s insurer. His claim of non-submissibility is based upon the contention that plaintiff was guilty of such negligence in signing the release without reading it that she could not thereafter claim that she was induced to sign it by the fraud of Mr. Brooks.

“It is unquestionably the general rule that one who signs a written contract without knowledge of its provisions, where the means of information are at hand and easily accessible, is, in the absence of fraud or mistake, bound thereby notwithstanding. * * * [T]he instant case falls within the exception. The question here primarily is not whether plaintiff was negligent, but whether through defendant’s fraudulent conduct and representations she was led to sign without further investigation an instrument she did not intend to execute.” Rau v. Robertson, Mo.Sup., 260 S.W. 751, 755. In Higgins v. American Car Co., 324 Mo. 189, 22 S.W.2d 1043, a release signed by plaintiff was held to bar recovery as a matter of law upon the ground of plaintiff’s negligence. The court in discussing the facts, however, observed that everything about the transaction tended to put him on his guard as to what he was signing. Poe v. Illinois Cent. R. Co., 339 Mo. 1025, 99 S.W.2d 82, contains an analysis of many of the cases in which the question before us has been considered. Some of the authorities seem to indicate that the question is whether, under the particular facts, the re-leasor’s failure to obtain knowledge of the contents of the release was excusable. 45 Am.Jur., Release, § 18, p. 684. In Poe, supra, it is said that “An analysis of the cases reveals that they turn on the nature of the transaction involved, the representations made by the representor, the relation existing between the parties — whether one of trust, or confidence, or friendship, or close acquaintance, or that of strangers dealing at arm’s length — or the trick or-artifice, if any, employed.” 99 S.W.2d 88.

We have concluded that, under the facts and circumstances of this case, plaintiff’s failure to read the release was not such negligence that would, as a matter of law, preclude her from asserting that she was induced by fraud to execute the instrument. The favorable evidence indicates to us that every circumstance surrounding the instant meeting would tend to lull plaintiff into a sense of security and cause her to reasonably believe that it was unnecessary for her to read the paper presented to her. In arriving at that conclusion we have considered the following facts and circumstances: (1) Plaintiff did not go to the office of the insurance company to settle her claim against defendant and hence had made no preparation to undertake such a settlement; (2) she went to the office of her own insurer in order to make a claim under the collision coverage of her policy and without knowledge that her insurer was also the liability insurer for the driver whose negligence she considered caused the collision; (3) she had known Mrs. Thomas for years and understood that she would fill out some forms so that she could get her car fixed; (4) plaintiff did not think she had been injured and so advised Mrs. Thomas and Mr. Brooks; (5) the only claim made by her was for damage to her car and no other claim was discussed at the conference; (6) her collision policy covered all of the damage to her car except $50 and hence when Brooks, as defendant’s insurer, offered her that amount so that she could get her car fixed, plaintiff was receiving the maximum amount she could possibly recover for property damages, which was the only item then being considered ; (7) the check given plaintiff upon signing the release had on its face, “Kind of Loss — P. D.” which Mr. Brooks stated showed that the payment was for property damage; (8) the amount involved was comparatively small; and (9) the fact that the insurer’s agents suggested or, at least, knowingly permitted plaintiff to sign her husband’s name to the release would indicate the absence of the arm’s-length features that usually accompany such a transaction.

The fact that plaintiff thought she was settling for property damage only is corroborated by her action in immediately reporting her physical injuries to the insurance company as soon as such were discovered four days later. For the reasons heretofore stated, we rule that the issue as to the validity of the release was properly submitted to the jury.

Plaintiff contends that the judgment should be reversed and cause remanded for a new trial because of the prejudicial error of the court in giving Instruction No. 2 at the request of defendant. It reads as follows: “The court instructs the jury that it is admitted in this case that the plaintiff signed the release as identified in evidence, that at the time of signing same she could read and write, that it was often and available for her to read, that no one kept her from reading it and that no one told her she had to sign it before she did sign it and that she did not read the same, and it is further admitted that she and her husband received the sum of Fifty Dollars ($50) as described in evidence in this case, therefore, you are instructed that if you find and believe from the evidence that Mr. Brooks and Mrs. Thomas did not make such representations as described in Instruction No. 1, if so, and if you further find that when plaintiff signed said release she failed to exercise reasonable care for the protection of her own interests and was not induced to refrain from reading said release and was not induced to refrain from making such investigation of the release as she would ordinarily make to protect her own interests, then your verdict should be that the release is valid and binding on plaintiff.” (Italics ours.)

Plaintiff says the instruction is erroneous because (1) it states that certain facts were admitted which, as a matter of fact, were not admitted, and (2) it is argumentative in that it singles out and emphasizes fragments of the evidence and, under the guise of “admissions,” comments upon those portions of the evidence.

We are clearly of the opinion that the instruction was prejudicially erroneous. It will be noted that it purported to submit the issues as to whether plaintiff, when she signed the release, “failed to exercise reasonable care for the protection of her own interests and was not induced to refrain from reading said release and was not induced to refrain from making such investigation of the release as she would ordinarily make to protect her own interests.” It is apparent that defendant, in drafting the instruction, has singled out the various parts of plaintiff’s testimony which would appear to be favorable to defendant on the issues thereafter submitted, and has assembled those portions of her testimony in an argumentative, repetitious fashion, in the introductory part of the instruction, under the designation of admitted facts. In other words, the italicized portion of the instruction constitutes a very effective preliminary argument as to why the jury, in the light of the evidence so commented upon, should find the issues thereafter submitted in favor of defendant.

The fact that plaintiff may have testified to those or similar facts does not warrant the use of same, under the guise of admitted facts, in the emphatic, repetitious, and argumentative fashion as set out in that instruction. Furthermore, an instruction should never state that a fact is admitted unless it has been unquestionably conceded by the party or parties. Some of the admissions stated in this instruction do not come in that category. For example, while plaintiff testified that Mr. Brooks did not keep her from reading the release, she nevertheless qualified that statement by adding that “he never turned loose of it though. He handed it over the desk and I signed it and he pulled it back.” The instruction also states as admitted that “no one told her she had to sign it before she did sign it.” The basis of that admission was the testimony of plaintiff on cross-examination as follows: “Q. You mean he handed it over as I’m doing now and said, ‘You’ll have to sign at those places marked with an “X”’? A. No, no, he didn’t tell me I had to. He asked me to sign them.” The fact that plaintiff testified that Mr. Brooks asked her to sign the release would seem to destroy the so-called admission that he didn’t tell her she had to sign it. In discussing certain defects in the instruction we do not mean to indicate that we approve it in other respects. It should be carefully redrafted in the event it is offered again at another trial.

For the error in giving Instruction No. 2 the judgment is reversed and cause remanded for a new trial.

COIL and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by HOLMAN, G, is adopted as the opinion of the court.

All concur.