author: O’QUINN, Justice.

text:
    Honorable James O. GERST, Savings and Loan Commissioner of Texas et al., Appellants, v. GUARDIAN SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 11574.
    Court of Civil Appeals of Texas. Austin.
    Feb. 28, 1968.
    Rehearing Denied March 20, 1968.
    Crawford C. Martin, Atty. Gen., George Cowden, 1st Asst. Atty. Gen., A. J. Ca-rubbi, Jr., Staff Legal Asst. Atty. Gen., Sam Kelley and T. Ray McGregor, Asst. Attys. Gen., Austin, for Sav. & Loan Comm.
    Jacobsen & Long, Joe R. Long, Austin, for Richardson Savings & Loan Ass’n.
    Heath, Davis & McCalla, Dudley D. McCalla, Austin, for appellees.
   O’QUINN, Justice.

Two savings and loan associations, both domiciled in Dallas County, filed applications with the Savings and Loan Commissioner of Texas on April 10, 1966, seeking authority to locate branch offices on opposite corners of Belt Line Road and Coit Road.

Guardian Savings and Loan Association filed its application first, requesting approval of a branch to be located immediately north of Belt Line Road, and west of Coit Road, in the city of Dallas. About an hour later Richardson Savings and Loan Association filed to locate a branch immediately south of Belt Line Road and east of Coit Road in the city of Richardson. In this area Coit Road, running north and south, marks the common corporate limits of Dallas and Richardson.

The Commissioner heard both applications at a proceeding held September 27, 1966. In separate orders entered October 27, 1966, the Commissioner denied the application of Guardian Savings and approved the application of Richardson Savings.

Guardian Savings filed suit in district court seeking to have set aside the Commissioner’s order refusing its application and also to set aside the order granting the application of Richardson Savings.

The trial court entered judgment July 14, 1967, setting aside the order denying the application of Guardian Savings as void and not supported by substantial evidence and remanding the proceeding to the Commissioner with instructions to approve the application. The trial court in the same judgment held the order granting the application of Richardson Savings in all things valid and reasonably supported by substantial evidence.

Richardson Savings and Loan intervened in district court. In this appeal Richardson Savings has aligned itself with the Commissioner. This is an appeal from the judgment of the trial court only in so far as that court set aside and held for naught the order of the Commissioner denying Guardian Savings its branch office.

Appellants present one point of error. This point is the error of the trial court in holding that the Commissioner’s order denying a branch office to Guardian Savings was not reasonably supported by substantial evidence.

At the hearing in September, 1966, the Commissioner on his own motion entered an exhibit (Resolution of the Federal Home Loan Bank Board, dated March 24, 1966) reading in part as follows:

“The application of the Dallas Federal Savings and Loan Association, Dallas, Texas, for permission to move its branch office from 52 Richardson Heights, Richardson, Texas, to a location at, or in the immediate vicinity of, the intersection of Cottonwood Street and Beltline Road, Richardson, Texas, is hereby approved; provided that such move is effected not later than twelve months from the date of this approval.” (Emphasis added.)

Appellants apparently regard this authority “to move its branch office” as tantamount to a creation of a new facility to be operated by Dallas Federal Savings. “At the hearing the Commissioner, on his own motion,” appellants state, “entered an exhibit showing that a Federally chartered association had recently received permission to establish a branch office in a location which would conveniently serve the public living and working in the same geographical area which would be served by either of the proposed branch offices, the applications for both of which were then pending before him.” (Emphasis added.)

Continuing, appellants contend that, “In view of the recently approved Federal branch office, the Commissioner was faced with the choice of whether he would approve no additional new offices to serve this suburban area, one additional new office or two additional new offices. * * * The establishment of the two new offices by the authorities obviously adequately serves the public in the area. Guardian must show that the Commissioner acted unreasonably under the evidence in refusing a third office.” (Emphasis added.)

We do not agree that the choices of the Commissioner were precisely as stated by appellants. The record is clear that the authority granted Dallas Federal Savings was to move an existing branch office from downtown Richardson to a location near the western limits of Richardson, a distance of about two miles. At the time of the hearing there was no evidence that Dallas Federal Savings would or would not avail itself of the authority granted to move its branch office within the twelve months allowed for the move.

Both Guardian Savings and Richardson Savings defined approximately the same primary market area proposed to be served. This area may be generally described as bound on the east by Central Expressway, which traverses the city of Richardson in a northeasterly direction from the north Dallas city limits, and bound on the west by North Dallas Tollway, with Johnson Freeway as its south limits and the county line defining the north boundary. The proposed branch office locations at Belt Line and Coit Roads would be near the center of the area and about two miles from each of the four boundary lines indicated.

Within the primary market area, at its extreme eastern limits, there were located at the time of the hearing three savings and loan facilities. Richardson Savings had its main office on Central Expressway in downtown Richardson, and Dallas Federal Savings and Oak Cliff Savings maintained branch offices in downtown Richardson at Central Expressway and Belt Line Road. All three of these offices were shown to be about two miles east of the sites proposed by Guardian Savings and Richardson Savings for branch offices.

Confronting the Commissioner was determination of the question whether the primary market area was such as to justify one or two additional branch offices, assuming Dallas Federal Savings did or did not move its branch office out of downtown Richardson to the same vicinity proposed by Guardian Savings and Richardson Savings for branch offices.

We think it appropriate at this juncture to dispose of the contention of Guardian Savings that, having filed first, this applicant was entitled to first consideration. While the Commissioner permitted Guardian Savings to be heard first at the proceedings, the Commissioner clearly decided first that the application of Richardson Savings should be granted. The Commissioner then ruled that Guardian Savings should be denied a branch office, and gave as his reason in effect the fact that he had already approved the Richardson Savings application. As already indicated, the two applications were filed the same day, but that of Guardian Savings preceded the filing of Richardson Savings by about one hour.

We overrule this contention. We are bound by two earlier decisions of this Court in which it was held that priority of filing applications may not be made the controlling factor in a final administrative decision, even though the applications are equally meritorious. State Banking Board of Texas v. McCulloch, 316 S.W.2d 259 (Tex.Civ.App., Austin, writ ref., n. r. e.); Farb v. State Banking Board of Texas, 343 S.W.2d 508 (Tex.Civ.App., Austin, n. r. e.). In each of these cases there was persuasive dissent on this point supported hy substantial authority. If presented under the facts of this case as one of first impression, the point might be decided with a different result. But the Supreme Court denied application for writ of error (no reversible error) in each of the earlier cases, and the law is now settled.

It appears uncontradicted that the primary market area to be served by the branch offices proposed to be located at Belt Line and Coit Roads geographically would partially overlap the market already being served by the three facilities located in downtown Richardson. The proposed new locations would look for savings accounts, as well as loan business, largely to the area lying west, north and south of the intersection of Belt Line and Coit Roads. The overlap would be principally in that portion of Richardson lying between North Expressway on the east and Coit Road on the west. This overlap was reduced about one-half by Guardian Savings in its application by placing the eastern boundary of its proposed market area along the northeast fork of White Rock Creek, which approximately bisects this area.

It was the testimony of Dr. Richard B. Johnson, who qualified as an expert, experienced in economic studies related to location of banks and savings and loan facilities, that for the want of “through routes” from the residential areas of Richardson northwest of Central Expressway to downtown Richardson, “the typical shopper traffic” from this area will “gravitate west” to the shopping facilities in the vicinity of Belt Line and Coit Roads. The residential area referred to by Dr. Johnson lies partially within the geographical overlap of the two primary markets.

If Dallas Federal Savings should move its branch office from downtown Richardson to a location near Belt Line and Coit Roads, it was Dr. Johnson’s opinion the association “would carry with it * * * most of the accounts that already is tied to itself. It thus would lose relatively little and gain a better position * * *.”

Dr. Johnson, testifying for Richardson Savings, stated that in his opinion “over a period of five to ten years, perhaps fifty percent of the accounts that Richardson Savings and Loan now has in [the area between Coit Road and Central Expressway] would gravitate to its office at Coit and Belt Line.”

“During that time,” Dr. Johnson testified, “if they follow policies that I think I shall suggest, they would aggressively have solicited accounts in a broader area and replace them in their association.” Dr. Johnson also testified, “I would say that good management at this point for Richardson Savings and Loan dictates aggressive management in the market and aggressive location. On that score, I think the Belt Line and Coit location is imperative.”

The record manifests a common conclusion, drawn from surveys and studies,, that the intersection of Coit and Belt Line Roads affords a most favorable location for savings and loan facilities for the next five to ten years.

In his order denying a branch office to Guardian Savings, the Commissioner found:

(1) “that there is not sufficient public need for the proposed branch office and that the public convenience and advantage would not be served by the establishment of this office * *
(2) “the volume of business in the-community in which the proposed branch, office would conduct its business is not such as to indicate a profitable operation in view of the Commissioner’s action hereinafter referred to * * *.’r (Emphasis added.)
(3) “and the proposed branch office would unduly harm” Richardson Savings “operating in the vicinity of the proposed location.”

All other findings were favorable to Guardian Savings. The “Commissioner’s action” referred to in the second finding stated above was his order approving earlier that day a branch office for Richardson Savings and Loan.

Immediately following his statement of the findings, the Commissioner continued:

“In this regard it was shown that the proposed branch [of Guardian Savings] is to be located at the intersection of Beltline and Coit Roads. * * * It was established at the hearing without any dispute, that the area to be served by the branch office at the location, is one of the fastest growing area of Dallas County and is projected to be one of the strongest growth areas in the future.”

Advantages of this location were further stated by the Commissioner, in his order denying Guardian Savings a branch office, in this language:

“The shopping centers already located at this intersection, together with those commercial developments proposed for the undeveloped corners of the intersection, will create a commercial center of a major regional type, to serve the fast growing population and development in this area of north Dallas County. The intersection has excellent major traffic access, both east and west, and north and south. To the immediate northwestern area adjacent to this intersection, there is proposed, and already under early stages of construction, a significant and substantial territory to be used primarily for residential development of above average cost residences.”

The Commissioner’s findings with regard to the past and future growth of the primary market area, and with respect to the advantages of the intersection of Coit and Belt Line Roads, are substantially supported by the evidence. It was the opinion of Dr. Johnson that this intersection “and the partly developed acreage constitutes the largest exposure potential in this northern territory other than the * * * property at Preston and Valley View,” west of and outside the primary market. “To the north,” Dr. Johnson stated, “until one reaches a northern most zoned area, quite a distance away, at least two miles away from [Coit and Belt Line Roads], one does not encounter shopping zones that can be developed with the major exposures that the [intersection] can provide.”

“It is my judgment,” Dr. Johnson testified, “and this is shared with many others who have analyzed the situation, that the [intersection] will eventually become a major shopping exposure for this general territory and that it will have department stores and major speciality stores in it. It is favored by excellent traffic routes east and west and north and south. At present, however, it is still a modest, essentially convenient shopping center.”

“Another point to emphasize,” Dr. Johnson testified, “is that there is a great territory for residential development to the northwest. It will develop rather rapidly, I think, and will provide an increasing market potential for operations located at the Dai-Rich Center [at Coit and Belt Line Roads], but it will happen at a good but nonetheless not fantastic rate, I suspect, conceivably seven, eight or nine hundred homes per annum on the average during the next seven to ten years, developing principally in this northwest area.”

The Commissioner found, with respect to population and income of the market area, that:

“It was shown that the population in the 1960 census was approximately 13,872 for the area which would comprise the primary market for a facility located at this site. This population has increased to 36,000 by 1966 and is projected to exceed 48,000 persons by 1970. Likewise, the households in this same area were shown to be 3,676 in 1960 with an increase to 10,700 by 1966 and projected to exceed 14,750 by 1970. The average family income was shown to be over $11,500 with some estimates as high as $17,000 or $18,000. The majority of the residential housing in the area was shown to be less than five years old with values ranging from $20,000 on upward, with an average of at least $30,000.”

In each of the two orders, one granting a branch office to Richardson Savings and the other denying a branch office to Guardian Savings, the Commissioner recited the identical facts related to public need and growth.

In the order denying a branch office to Guardian Savings, the Commissioner recited that:

“To serve the public need and growth indicated by the. foregoing facts for the area to be served by a savings and loan facility at this intersection * * * in addition to the other savings and loan facilities already serving in this area, the Commissioner has heretofore on this day made a decision and entered an order approving the application of Richardson Savings & Loan Association. From the applications, evidence and official records, the Commissioner does not find that there is a public need for two additional. savings and loan facilities at this location, nor has there been shown a sufficient volume of business in the community in which the proposed branch office would conduct its business as to indicate a profitable operation for two additional savings and loan facilities.” (Emphasis added.)

It is apparent that the Commissioner considered the two applications before him as requests for savings and loan facilities to serve a primary market already being served by the three offices located in downtown Richardson. While it was shown, as we have observed earlier, that there would be some overlap of the proposed primary market area and the market already being served, the evidence is clear that the three offices in downtown Richardson are two miles or more east of the proposed sites at Coit and Belt Line Roads and at the fringe only of the proposed market.

Dr. Johnson testified that the home office of Richardson Savings “ * * * is on the very fringe of it [the proposed market], but not in the location to tap the market * * When asked about the overlap, Dr. Johnson testified: “There would be an overlap. I don’t think substantial.”

The three offices in downtown Richardson are concentrated in a small area, and facts relating to the location of the Richardson Savings home office, with relation to the proposed market to be served from Coit and Belt Line Roads, would be applicable to the two other downtown offices.

The proposed locations at the intersection of Coit and Belt Line Roads were found to be prime locations very largely because of the savings and loan opportunities afforded, and to be afforded in the future, by the territory west, south, and north of the intersection in which even a nominal overlap with another market does not exist. The testimony was undisputed that the area from which such a facility would attract sixty to ninety percent of its business extends about two miles in each direction. In most of the proposed market area no other facility, when this standard is applied, could be described as already serving the market, and competition from the downtown offices in Richardson therefore would appear to be negligible in all of the proposed market except in the insubstantial overlap.

Evidence was before the Commissioner that in 1966 there were 13,544 households in the proposed primary market area and a projection showing 21,896 in the area in 1970. If the proposed market should be served only by the three savings and loan offices in downtown Richardson, the number of households per office in 1966 in the primary market would be 4,515 and in 1970 would rise to 7,299. Dr. Johnson testified that by adding a branch office for Richardson Savings, the households in 1966 for each of four offices would be 3,386 and in 1970 there would be 5,474 households per office. Five offices, including the three downtown facilities, and two at Coit and Belt Line Roads would reduce the number of households per office serving the proposed market to 2,709 which number by 1970 would rise to 4,379. By 1968 a projection would show more households per office for five facilities than the number for four offices in 1966.

Guardian Savings proposed a primary market area and a secondary market in its application. As already indicated, the primary market area was bounded on the east by a fork of White Rock Creek. The area extended south to Johnson Freeway, west to Dallas North Tollway, and north to the county line. Surrounding the primary market area, Guardian Savings indicated a secondary market area with its east boundary at Central Expressway. Its other boundaries, at least to the south and west, were about two miles outside the proposed primary market.

It was shown at the hearing that Guardian Savings had, within the primary and secondary market areas, a total of 304 savings accounts totalling $1,696,000 and 137 mortgage loans in the aggregate sum of $3,798,848. In the primary market, Guardian Savings had 79 savings accounts in the total amount of $337,500 and 59 mortgage loans totalling $1,698,000.

Guardian Savings, with its home office on Main Street in downtown Dallas, had two branch offices. The branch office on West Jefferson had total savings of $3,400,000 and the Lovers Lane branch office had $9,100,000 in savings accounts. The president of Guardian Savings, De-Witt Ray, Jr., testified that in his opinion the proposed branch at Coit and Belt Line Roads “will probably be the most profitable branch operation of any of our branches.” Neither of the other branch offices is located so as to serve either the primary or secondary market area. The association, Ray testified, anticipated $2,000,000 in new savings for the proposed branch office and a profitable operation even in the first year. In 1965 the main office and the two branch offices grew approximately $3,700,-000 in savings. The association projected a gain in 1967 of $5,000,000 in savings and $4,650,000 in loans.

Guardian Savings argues that although handicapped by the absence of an office in the market area, the association has invested a much greater amount of savings in the area than has been received from it. “Institution and operation of the branch sought,” Guardian Savings contends, “would afford Guardian the opportunity to render needed and beneficial savings and loan services to the public * * *.”

We conclude that the Commissioner’s findings of insufficient public need for the proposed branch office of Guardian Savings is not reasonably supported by substantial evidence.

The Commissioner’s finding that the volume of business in the community was not such as to indicate a profitable operation for the Guardian Savings branch clearly was reached after first deciding to approve the Richardson Savings application. We do not find any direct testimony in the record to support this finding. Dr. Johnson testifying for Richardson Savings, expressed the opinion that if the Guardian Savings branch “could be staffed properly”, it could be “operated at least at break even with two million dollars in accounts.” Although Dr. Johnson considered the intersection of Belt Line and Coit Roads “better than good” as the location for a branch office, he was emphatic that “Richardson [Savings] needs that location without any other offices in that market.”

Dr. Johnson testified, “I think that Guardian might have some difficulty generating business within a reasonable length of time to make their office a self-supporting office.” This testimony clearly was based on the assumption that Dallas Federal would move its branch office from downtown Richardson to the site at Coit and Belt Line Roads, and that the Richardson Savings application for a branch office would be approved. “If Guardian were there,” Dr. Johnson testified, “it would be engaged in a scramble with two associations, and the best part of the market and it might have some difficulty.”

Testimony of Dr. Johnson, bearing on the matter of profitable operation for Guardian Savings and undue harm to Richardson Savings, is set out as follows:

“Q Now, you have already talked about the effect if Dallas Federal and Guardian both go in, and you are saying that if that situation results, in your opinion, Guardian’s office will not be self-supporting in a reasonable period of time? Is that correct?
A I think that it would have a hard competitive road. Richardson is already in the market serving it pretty effectively, and one doesn’t switch those accounts over night. Notice Oakcliff’s experience, according to our survey. It commanded a very modest percentage of the market, although it’s been there since ’65 and had a loan office before that in the same location, or approximately in the same location. I think it would be a slow business. Yes, sir.
Q A slow business?
A A slow matter of attracting accounts and developing a profit — in arising to a profitable level. Yes, sir.
Q At what point do you anticipate it would reach a profitable operation, Doctor?
A It depends on how they intend to serve it and what they intend to lend from it. If they concentrate on consumer lending, which is more productive in terms' of interest income, earlier than otherwise.
Q Assume that they did not concentrate on consumer lending.
A If they staffed it as a good savings office and loan office — it’s sparsely business — they are going to have to generate, in my judgment, certainly two million dollars, possibly more, before they can operate it effectively as a full purpose office.
Q All right, sir. Now, you are very familiar with that area out there, I take it. You live in North Dallas, as a matter of fact, don’t you?
A Yes, sir.
Q I want to ask you, in your expert opinion, Doctor, how long assuming a properly staffed and properly operated branch of Guardian, in your opinion, it would be before it would be a self-supporting office?
A I would have to know what they intended to do in the way of staffing and promotion before I could answer that.
Q Doctor, you just assume, if you will please for the record, proper staffing, however you defined it when you mentioned it a minute ago.
A I think that it could be staffed properly and operated at least at break even with two million dollars in accounts. Now, I don’t think they are going to attract two million dollars in accounts in less than two years.
Q All right, sir. Thank you.”

Testimony that Guardian Savings “might have some difficulty” because “engaged in a scramble with two associations”, on an assumption Dallas Federal would move its branch office, and would have a “hard competitive road” is hardly the substantial evidence required to prove insufficient business to indicate a profitable operation for Guardian Savings.

We think there was lacking substantial evidence to support the finding of the Commissioner that the volume of business in the community in which the branch office would conduct its business was not such as to indicate a profitable operation for the Guardian Savings branch office.

We find in the record no factual evidence tending to support the Commissioner’s finding that to grant the Guardian Savings application would result in undue harm to Richardson Savings and Loan.

It was Dr. Johnson’s opinion that with Richardson Savings and Dallas Federal operating branch offices at Coit and Belt Line Roads, there would be “sufficient business to support both offices, provided an excessive number of office is not provided in the territory.” If Guardian Savings should be located at Coit and Belt Line Roads, Dr. Johnson had no doubt “it would be a very critical impairment of Richardson Savings and Loan’s growth potential and probably would result in a reduction, an attrition against its existing accounts.”

We are unable to reconcile this testimony with that of Dr. Johnson, already set out above, that Guardian Savings would have a hard road competing with Dallas Federal and Richardson Savings because “Richardson is already in the market serving it pretty effectively, and one doesn’t switch those accounts over night.” Nor is it clear whether Guardian Savings or Richardson Savings’ own proposed branch office would cause “attrition against its existing accounts”, in view of Dr. Johnson’s testimony earlier that fifty percent of the accounts presently in Richardson’s main office from the region between Coit Road and Central Expressway would end up in the branch office.

We do not discover any testimony in the record that the Guardian Savings branch office would cause any attrition of the Richardson Savings loan business. Dr. Johnson testified only to “possible attrition” resulting to the savings accounts of Richardson Savings.

We are unable to find in this testimony the evidence of undue harm intended to be avoided under the statute. At the time of the hearing in September, 1966, Richardson Savings had approximately $14,500,000 in savings accounts and its loans amounted to $14,100,000. In connection with its application Richardson Savings was required to show a profitable operation for the three year period next preceding the filing. It was a stable, profitable association, operating in an area in which it was already well established. At the hearing the Commissioner asked Dr. Johnson whether he thought the Richardson Savings main office had a good location. Dr. Johnson’s reply which bears upon the future of Richardson Savings is set out in full as follows:

“A They’ve got a pretty substantial investment of time in it, Mr. Commissioner, and also the prospective growth to the east of the Expressway would discourage me in suggesting that they retire from it. I think with the title Richardson Savings and Loan, their really great opportunity is identifying themselves with Richardson with great exposure so Richardson really feel they are available. I wouldn’t want to relinquish the home office because of that; but at the same time I would be very fearful, if I were they, to be committed to it alone, in view of where the growth is. In short, I guess to abbreviate it, I think they really ought to have both.”

The fact that Guardian Savings would furnish hard road competition in a scramble for business, resulting in some attrition to Richardson Savings, cannot be said to constitute substantial evidence to support a finding of undue injury to Richardson Savings. We find that the Commissioner’s adverse finding is not reasonably supported by the substantial evidence.

Guardian Savings on appeal assigns a cross point of error under which it contends the trial court erred in holding the order of the Commissioner approving a branch office for Richardson Savings valid and binding and reasonably supported by substantial evidence. Appellants have filed a motion to strike the cross point presented by Guardian Savings.

The judgment of the trial court reflects that the Commissioner and Richardson Savings excepted to that portion of the judgment setting aside and holding for naught the order of the Commissioner denying the application of Guardian Savings for a branch office and gave notice of appeal to this Court. The judgment also shows that Guardian Savings excepted to and gave notice of appeal from that portion of the judgment holding valid, legal and binding the order of the Commissioner approving a branch office for Richardson Savings.

The Commissioner and Richardson Savings duly perfected their appeal. Guardian Savings did not file an appeal bond to perfect its appeal. Although the judgment was severable and the Commissioner and Richardson Savings gave notice of an appeal from only that part setting aside the order denying a branch office to Guardian Savings, the record does not disclose that appellants complied with paragraph (c) of Rule 353, Texas Rules of Civil Procedure. In order to limit the scope of an appeal, appellants under this Rule were required to serve separate written notice on Guardian Savings as an adverse party and file the notice with the Clerk within fifteen days after judgment or order overruling motion for new trial.

Paragraph (c) was added to Rule 353 in 1962 following the decision of the Supreme Court in Connell Construction Co. v. Phil Dor Plaza Corp., 158 Tex. 262, 310 S.W.2d 311 (1958). The Rule has been construed in Harms Marine Service, Inc. v. Swiere, 411 S.W.2d 602, Tex.Civ.App., Beaumont, writ ref., n. r. e., in which it was held that appellant there complied with the requirement of notice limiting an appeal.

The cross point presented by Guardian Savings is properly before this Court, and the motion to strike is overruled. We have carefully considered the cross point under the evidence disclosed by the record which we have already reviewed.

We conclude that there was substantial evidence before the Commissioner to support the findings upon which he approved a branch office for Richardson Savings. The trial court we think correctly found this order valid, legal and binding and reasonably supported by substantial evidence. The cross point is overruled.

The judgment of the trial court is in all things affirmed.

Affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    James C. YOUNG, Appellant, v. CITY OF PEARLAND, BRAZORIA COUNTY, Texas, Appellee.
    No. 15232.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 29, 1968.
    Rehearing Denied March 21, 1968.

      Paul Ferguson, William W. McNeal, Alvin, for appellant.
    Jack Harrison, John S. Brukner, Alvin, Thomas J. Graham, Houston, for appellee.
   COLEMAN, Justice.

This was a suit for specific performance of an alleged contract to convey certain water lines and meters. The trial court withdrew the case from the jury and granted the prayer for specific performance.

This suit was based on an option agreement executed by James C. Young and the City of Pearland on June 4, 1964. This instrument reads:

THE STATE OF TEXAS 1 COUNTY OF BRAZORIA J
THIS RIGHT OF PURCHASE AGREEMENT made and entered into on this the 16th day of August, A.D. 1963, hy and between the CITY OF PEAR-LAND, a municipal corporation, acting by and through its duly authorized officers, the undersigned, hereinafter called “CITY” and JAMES YOUNG, as owner and developer of a certain Subdivision in the City of Pearland, Brazoria County, Texas, hereinafter called “DEVELOPER”,
WITNESSETH:
That the DEVELOPER is the owner and subdivider of a certain tract of land located within the City of Pearland, Brazoria County, Texas, and that he has subdivided the same into lots, blocks, streets, alleys and easements for the purpose of providing building sites for homeowners and other types of improvements and to install for the use and benefit of the residents of such subdivision, a water system and has presented the proposed Plat and Dedication of said Westminister Subdivision for the approval of the City Council as a subdivision to the City, together with his plan for the construction of the water system within such Subdivision; and
WHEREAS, the CITY contemplates that they will, at some future date, organize and develop a municipal water and sewer system for the residents of the City of Pearland and desire to have the right of purchase of such water facility that may be installed in the Westminister Subdivision by the DEVELOPER, and the DEVELOPER has agreed to sell and convey such water improvements to the CITY as reflected by a Motion that was entered in the Record of Minutes of the City Council of the City of Pearland on this date, in which the said DEVELOPER agrees to sell to the CITY all water lines, without cost to the CITY and CITY shall have the right of purchase of any meters and meter connections at a rate of Forty ($40.00) Dollars per meter and the further right of the CITY to purchase the water well, pump and facilities attached thereto at its fair market value at the time of such purchase by the CITY. The DEVELOPER has further agreed that the CITY shall have the right to increase the size of the water conduit pipe along the Old Alvin Road from that reflected by the proposed Plat, by the CITY paying the difference or additional cost in the installation of such pipe selected by the CITY in excess of the proposed six inch (6") water line.
NOW, THEREFORE, in consideration of the premises and the further consideration of the acceptance for filing and recording, the Plat and Dedication of WESTMINISTER SUBDIVISION by the City of Pearland, the DEVELOPER agrees that when the CITY has organized and developed a municipal water and sewer system for the use of the residents of the City of Pearland, that the CITY will have the right of purchase of all water meters and connections installed by DEVELOPER in said West-minister Subdivision at a cost of Forty ($40.00) Dollars per meter tap and the further right of purchase of water well, tank, pump and attendant facilities at its fair market value at the time the CITY desires to acquire title and possession and the DEVELOPER further agrees that he will execute the necessary bills of sale, assignments, transfers and conveyances to all facilities pertaining to the water system in Westminister Subdivision to the said City of Pearland, upon CITY giving at least thirty days notice in writing of its desire to acquire possession and ownership of same at the price above stated.
It is further agreed that this right of purchase shall extend to the parties hereto, their heirs, successors, administrators or assigns.
EXECUTED at Pearland, Texas, on this the 9 day of June, A.D. 1964.
(Signatures and acknowledgements)

Appellant was developing the Westmin-ister Subdivision into residential lots. The City of Pearland had no City water and sewage system at that time but planned to develop such a system in the future. A part of the City was included within a water district, but appellant’s property was not within the district and could not be serviced by it. Appellant wished to improve his subdivision with a water system that could be integrated into the proposed City system. His engineer prepared a plan for such a water system which was presented to the City Council for approval on August 15, 1963, and it was approved.

Thereafter the City of Pearland established a municipal water system. The minutes of a special meeting of the City Council for November 22, 1965, reflect that the meeting was called for the purpose of considering a request of Mr. Olen O’Day concerning “the water well and water lines in Westminister Subdivision,” and that he reported that 35 meters had been installed and that eight more were to be installed at existing houses. He stated that the total investment for water lines amounted to $8,507.54 “for material only or including the well and tank the sum of $11,961.15 for material only.”

The minutes then recite that following due discussion a motion was made and seconded “that James C. Young be notified by registered letter (return receipt requested) that the City is ready to proceed under the terms of a contract between he and the City dated June 9, 1964. This contract stipulating that thirty days notice be given to James Young in the event the City desired to acquire possession and ownership of same. Mr. Young to be notified of a Council meeting on December 30, 1965.” The motion passed, and thereafter the City Secretary mailed to Mr. Young the following letter (formal parts omitted) :

The City of Pearland is ready to proceed under the terms of a contract that you made with the City dated June 9, 1964. Copy of the contract is enclosed for your reference.
Since the contract states that the City is required to give you at least thirty days notice, we expect to meet with you on Thursday night, December 30, 1965 in the City Hall at 7:30 P.M.

Subsequently another letter was sent to Mr. Young, stating: “* * * Because of the holidays your compliance with the date as set forth in our letter to you dated November 23, 1965 has been extended by City Council until Thursday night, January 6, 1966 at the City Hall at 7:30 P.M. * *”

A meeting was apparently held on that date with Mr. Young in attendance. After discussing the question of the “water system” in Westminister Subdivision, the Council determined to submit the option agreement to the City Attorney for a written opinion concerning its legality and interpretation to be submitted at the regular meeting on January 27, 1966.

Mr. McClellan, the City Secretary of the City of Pearland and its chief executive officer under the supervision of the Mayor and City Council, testified:

Q Now, Mr. McClellan, to your knowledge, did you or anyone, any officer of the City offer to Mr. Young to buy, pursuant to the contract, the water lines and the meter connections for $40 per meter?
A Accepted with the — when the letter was mailed in about November, 1965.
Q Who sent that letter?
A I did.
Q And did you hear from Mr. Young, when you offered to purchase the water lines?
A Not until the night of the Council meeting, about January 6th.
Q And did Mr. Young accept or reject the offer to purchase the water lines ?
A He rejected.

He also testified, in identifying the quoted letter to James C. Young, that it was a letter notifying him that the City was ready to proceed with their option to take over “the Westminster water system”.

On May 3, 1966, the City Council instructed the City Attorney to proceed with the necessary legal steps to take over the water lines in Westminister Subdivision as per contract. This suit was filed in June, 1966. By this suit the City tendered to Mr. Young the sum of $40.00 per meter installed and demanded specific performance of the option agreement insofar as it relates to the water lines and meters. The petition states that the City does not desire to purchase or to exercise its option to purchase the water well, pump and attachments.

The appellant answered with a general denial and a plea that the City tendered only part performance under the “purported” option. The answer denied that the “purported” option was valid, but alleged that if it was valid, it is an indivisible contract, and further, alleged that the City failed to exercise good faith in exercising its “alleged” rights under the “purported” option. By trial amendment appellant alleged that there was no consideration for the option agreement, no consideration stated for conveyance of the water lines, and raised questions concerning the remedy of specific performance in the case of personalty having no intrinsic value, where there is an adequate remedy at law by way of damages.

Appellant’s answer also contained a counter-claim for the fair market value of the entire water system based on the premise that the City had exercised its option and thereby created a bilateral contract.

In its judgment the trial court found as a matter of law that the option agreement “together with the record of the minutes of the City Council of the City of Pearland on the 16 day of August, 1963, is not ambiguous and is divisible in that the City of Pearland has the right to acquire the water lines and the meters, and meter connections without acquiring the water well, tank, pump, and attendant facilities, * * *,” and directed appellant “to sell and convey and to execute the necessary bill- of sale, assignment, transfer and conveyance to the water lines and meters and meter connections located in the Westminister Subdivision in the City of Pearland, Brazoria County, Texas, and the water lines located in the streets of Westminister Subdivision shall include the water line to the well and pump up to the point the water line leaves the public street and enters and crosses into the private property upon which the water well, tank, pump and attendant facilities are located, said instrument specifically exempting from said sale the water well, tank, pump and attendant facilities * * ”

An interesting question arises concerning the nature of the option agreement. Is it a contract supported by sufficient consideration, or merely a continuing offer which the City could accept until withdrawn by appellant? The consideration recited is the acceptance for filing and recording of the Plat and Dedication of Westminister Subdivision by the City of Pearland. The evidence shows conclusively that the plat and dedication of the subdivision was approved by the City of Pearland some two months prior to the date of the Council meeting at which the proposed option agreement was discussed and approved by the Council. Appellee introduced evidence that the plan for the water system was presented to the Council at this same meeting and was approved by Council. The option agreement contains a reference to the plan for the construction of the water system. The minutes of the meeting of August 15, 1963, coupled the approval of the planned water system with the agreement for an option to purchase. These minutes were referred to in the option agreement. By signing the option agreement, appellant has impliedly agreed that the minutes accurately reflect the agreement of which they constitute a memorial. A reasonable construction of the minutes is that the approval of the plan for the water system was the agreed consideration for the option agreement. While appellant testified that he received nothing of value for his promise, the performance by the City of its implied promise to approve the water plan, as a matter of law, constituted the payment of a valuable consideration. The agreement, therefore, is a conditional contract binding on appellant. McBride v. Ponder, 242 S.W.2d 253 (Tex. Civ.App., San Antonio, 1951); Corbin on Contracts, Vol. 1, § 31, p. 120, and § 143, p. 614, et seq.; Id., Vol. 1A, § 262, p. 495.

The trial court erred in withdrawing the case from the jury and decreeing specific performance of the contract in part only. In the contract the appellant agreed to “execute the necessary bills 'of sale, assignments, transfers and conveyances to all facilities pertaining to the water system * * * upon City giving at least thirty days notice in (writing of its desire to acquire possession and ownership of same at the price above stated.” (emphasis added) This is the only provision relating to notice found in the contract. Clearly the only way the offer to sell the water well, storage tank, pump and storage facilities could be accepted would be by notice of intention to exercise the option since the amount of the purchase price had not been agreed upon in the contract. A contract to purchase was created if the letter of June 9, 1964, constituted an acceptance of the offer to sell contained in the option contract. The letter stated that the City was ready to proceed under the contract and specifically called attention to the notice provision of the contract. It constituted a written acceptance of the offer to sell “all facilities pertaining to the water system”. A contract binding upon both parties was created upon delivery of the letter to appellant. A promise on the part of the City to pay the fair market price of the well, pump, etc., will be implied. This interpretation of the letter is consistent with the testimony of Mr. McClellan previously quoted, as well as the minutes of the meeting of the City Council of November 22, 1965. 17 Am.Jur.2d, Contracts, § 32, pp. 369-371; Id, § 44, pp. 382-383.

Since a bilateral contract for the purchase of the entire water system existed at the time this suit was brought, appellee cannot insist that appellant perform in part only. In its pleadings appellee not only did not offer full performance on its part, but expressly stated that it did not desire to purchase the water well, storage tank, pump and appurtenances. In the absence of facts sufficient in equity to excuse appellee from its obligation to fully perform under the terms of the contract, appellee cannot have specific performance without offering or tendering full performance on its part. 52 Tex.Jur.2d, § 47, p. 577 et seq.; Id., § 60, pp. 598-599; Id., § 72, p. 612.

Since a new trial is necessary it is proper to state that the contract requires appellant to convey, as a part of the water system, his right, title, and interest in and to the water lines without other consideration than that agreed upon for the water meters plus the fair market value of the well, pump, tank and attendant facilities. This opinion should not be construed as establishing the proposition that this contract is sufficiently definite in its description of the property to be conveyed to support a cause of action for specific performance, or that such a remedy is available as against appellant in view of his testimony that he does not own the subdivision. Neither have we determined whether appellant has dedicated to the public any part of the system, or whether the contract can be specifically enforced if it should be determined that the promise to convey the water well, tank and water lines, located outside of dedicated easements or streets, is too indefinite with respect to the rights to be included in the land on which these facilities are located. These questions were not presented by the briefs of the parties on this appeal.

The judgment of the Trial Court is reversed and the cause is remanded.

Reversed and remanded.


author: PHILLIPS, Chief Justice.

text:
    Clyde Walton HANKS, III, Appellant, v. Howard LaQUEY, Individually and as Next Friend of Barbara Jean LaQuey, a minor, Appellee.
    No. 11563.
    Court of Civil Appeals of Texas. Austin.
    Jan. 31, 1968.
    Rehearing Denied Feb. 21, 1968.

      Small, Herring, Craig, Werkenthin & Shannon, Bob E. Shannon, Austin, for appellant.
    Brown, Brown & Bowen, Fred R. Brown, Garland, for appellee.
   PHILLIPS, Chief Justice.

This case involves a railroad crossing accident between an automobile and a moving train. Two students from Southwestern University who were in the automobile were injured in the collision, both quite seriously.

The accident occurred in January, 1965 at about 11:45 p. m. in Georgetown at a point where 12th Street crosses the railway tracks. Appellant, Clyde Hanks, was driving the automobile also occupied by ap-pellee Barbara LaQuey as guest-passenger, when the automobile, traveling easterly, struck a moving train at this crossing. Barbara and Clyde had been at Paul’s Dairy Nook, a restaurant, near downtown and were en route back to the Southwestern University campus at the time of the wreck.

Both Barbara and Clyde were students at Southwestern University where she was a sophomore and he was a freshman. Their acquaintance was casual and came about largely because she had dated one of his fraternity brothers. They had not dated before the night of the accident. Because her regular date was unable to take Barbara out that night, Clyde called her to go over to his fraternity house. They double dated with another couple, but before they went to the fraternity house, they drove to Jarrell where Clyde bought a bottle of whisky. On the way back to Georgetown Barbara and Clyde had some drinks.

They arrived at the fraternity house at about 8:30 p. m. and remained there until about 11 or 11:30. Here they danced and played cards.

Barbara knew that during the course of the evening Clyde had drunk two or three mixed drinks, while she had about the same number. At about 11:15 or 11:30 she asked Clyde to take her out for something to eat and he borrowed a car and drove to Paul’s Dairy Nook, a restaurant. At this time Barbara knew that Clyde had had at least two or three drinks.

The Dairy Nook was popular with the college students and Barbara and Clyde ordered food and stayed at this place some fifteen or twenty minutes. They left the Dairy Nook at about 11:45 p. m.

After they left the Dairy Nook, their plan was to return to the fraternity house where they would pick up another couple then return the girls to their dormitory. The closing time at the dormitory was 11:55, and if a girl was late, she would be penalized. Consequently, everyone tried to get their dates back into the dormitory on time. Barbara and Clyde had about ten minutes to get from the Dairy Nook to the fraternity house, pick up the other couple, and get to the girl’s dormitory before it closed.

Clyde continued due east toward the railroad crossing. Before reaching the crossing, he overtook the automobile of Alfred Brown, the admissions counselor at Southwestern University, who was also returning to the campus with some students in his vehicle. Clyde was in the inside lane going east and so was the counselor. The evidence indicates that Clyde was speeding as he approached the counselor. When the counselor saw Clyde approaching he drove his automobile to his left, across the double yellow stripe to the wrong side of the road, in order to allow Clyde to pass. The counselor estimated Clyde’s speed to be at least 70 miles per hour, perhaps as high as 90 miles per hour. The counselor had already observed a slow moving train blocking the 12th Street crossing before Clyde passed him. Clyde did not reduce his speed after passing the counselor, but continued speeding down 12th Street and hit the twenty-first car from the front of a twenty-nine car train. The car hit the rear wheels of the twenty-first car, stuck to the train, and was carried south with the train some 228 feet. The counselor did see the stop lights of the automobile come on an instant before impact. The police found that the car had skidded about 45 or 50 feet before striking the train. No one knows whether Clyde or Barbara applied the brakes at the last instant.

The train and crossing were not difficult to see. There was a street light at every block along 12th Street from Paul’s Dairy Nook to the crossing, and a street light directly over the crossing that lighted the train itself. In addition, there were automobiles stopped on the east side of the crossing and their lights were plainly visible as the train was passing. Furthermore, the railroad had erected warning lights at the crossing that had four constantly burning red lights and two more that blinked on and off when a train was at the crossing.

12th Street was smooth and level and the six red warning lights at the railroad crossing could be seen all of the distance from Paul’s Dairy Nook to the crossing itself.

The railroad crossing is in the 800 block of 12th Street. Between Paul’s Dairy Nook and the crossing, there is a school zone in the 300 block; a hospital zone in the 500 block; a railroad warning sign in the 700 block; and a speed limit sign of 35 miles per hour.

Clyde had been a student at Southwestern University since September of 1964. He had been over the same railroad crossing many many times before the accident. He knew that 12th Street was the main street to get to and from Southwestern University. He knew all other students would be using it and was well aware of the speed limit. He readily agreed one could see trains using the crossing when still several blocks away if one were to look and agreed that trains using the crossing were not difficult to see.

Clyde further testified that before the accident he knew that there were warning lights at the railroad crossing.

Both Clyde and Barbara were severely injured in this collision and she remembers nothing after getting into the car at the Dairy Nook. He remembers taking a Spanish examination during the afternoon of the day of the wreck, and nothing after-wards for some weeks. Barbara was in the hospital for more than eight months after the accident. Included in the severe damage to her body was some facial disfigurement which may be permanent, her legs shortened by several inches and the inability to open her jaws more than a quarter of an inch. This latter feature can possibly be corrected by surgery accompanied by an interlude of painful exercises designed to keep the joints of the jaw from becoming fixed again. Before the accident, Barbara was a very attractive young lady, sought after by the boys, able in athletics, and was, in fact, the head of the athletic activities of her sorority. Now, the boys no longer call her and certain results of the accident will probably be with her for the rest of her life.

The jury found that Clyde failed to keep a proper lookout, which was gross negligence and a proximate cause of the collision; that he was driving at an excessive rate of speed, which was gross negligence and a proximate cause of the collision; that he failed to apply the brakes in time to avoid the collision, which was gross negligence and a proximate cause of the collision.

The court entered judgment for Barbara LaQuey against Clyde Walton Hanks, III based on the jury verdict in the amount of $150,748.06. It is from this judgment that appellant Hanks has perfected his appeal to this Court.

We affirm.

I.

Appellant Hanks is before this Court on fifty points of error. The first thirty-nine points, briefed together, complain of the trial court’s action in entering judgment for the appellee Barbara LaQuey for the reasons that there was either no evidence or insufficient evidence to support the jury’s findings as to gross negligence on the part of appellant Hanks with respect to failure to keep a proper lookout, to driving at an excessive rate of speed and his failure to apply his brakes in time to avoid the collision. That the findings with respect to these alleged acts of neg-licence were against the great weight and preponderance of the evidence, and further that the definition of gross negligence used by the court, and stated later in this opinion, was incorrect.

We overrule these points.

This case is governed by the Guest Statute, Tex.Rev.Civ.Stat.Ann. art. 6701b, which provides in substance that a guest may recover only if his injury was intentional or caused by the host’s heedlessness or reckless disregard of the rights of others.

In argument before this Court and in his exhaustive brief filed with us, able counsel for the appellant has urged that the host’s mental attitude as manifested by his words and actions in respect to his conduct is vitally important in distinguishing between facts constituting ordinary negligence and those constituting gross negligence and that the absence of this factor is fatal to the guest’s case. Here it was emphasized that Barbara and Clyde were friends, that there is no direct evidence of any enmity or pique between them. In addition, counsel points out that the courts have consistently held that an accident caused by the host’s excessive speed, failure to keep a proper lookout, or failure to apply the brakes are acts of ordinary negligence and do not in themselves constitute gross negligence.

In addition, appellant cites cases such as Kirkpatrick v. Neal, 153 S.W.2d 519, (Tex.Civ.App. Beaumont 1941, writ ref’d, w. o. m.) where the host defendant was held to be grossly negligent. Here it was shown that his frame of mind was one of anger and frustration in that his companion guest had spurned his proposal of marriage. Rogers v. Blake, 150 Tex. 373, 240 S.W.2d 1001 (1951) where the court exonerated the host defendant of gross negligence merely for failure to stop at a stop sign. Gill v. Minter, 233 S.W.2d 585 (Tex.Civ.App. San Antonio 1950, writ ref’d) where the Court exonerated a youthful speedster from gross negligence and called his act one of momentary thoughtlessness or mistake in judgment. Webb v. Karsten, footnote No. 4, below, where in addition to the fact that the Court held that was insufficient proof as to who had actually driven the car, the only allegation of negligence was excessive speed.

We have no quarrel with these cases and under their facts they are correct. Here we have different facts, a course of conduct established well enough by the evidence to raise inferences that allowed the jury to find as they did.

We hold that this case is controlled by the opinions of the Supreme Court in Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571 (1945) and in Fancher v. Cadwell (1958), 159 Tex. 8, 314 S.W.2d 820 wherein Bowman v. Puckett is cited with approval.

In Bowman the facts are strikingly similar to those of the case at bar. The Court said:

“It is our opinion that the facts in evidence, including the speed greatly in excess of that permitted by the statute, the place, a heavily traveled highway and an important residence and business street of a city having a population of more than 6,000, the condition of the automobile, that is, the defective brakes, and respondent’s knowledge of that condition, tend strongly to prove that respondent was acting in a heedless and reckless disregard of the rights of others, or, stated in the language of the approved definition of gross negligence, that his act in driving at that rate of speed, under the circumstances, was the result of a conscious indifference to the rights or welfare of the person or persons to be affected by it. Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408.
[4] Whether the act of respondent was of that character is determined by inference from what respondent did and the physical facts that existed at the time and that contributed to the accident. Scott v. Gardner, 137 Tex. 628, 636, 156 S.W.Zd 513, 141 A.L.R. 50; Munves v. Buckley, Tex.Civ.App., 70 S.W.2d 605; Frazer v. Brannigan, 228 Iowa 572, 293 N.W. 50; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785. We believe that the inference drawn by the trial court from the evidence in the record as to those facts is, at least, a reasonable inference.
[5] The 'conscious indifference’ included in the definition of gross negligence is indifference 'to the rights or welfare of the person or persons to be affected by it (the act or omission).’ Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408, 411; Texas Pacific Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 98 A.L.R. 262. The persons who would or might be affected by respondent’s reckless driving were not only the occupants of his automobile but also persons who might be traveling on the street or highway or who might enter upon it. The probability of danger to all such persons ‘must be considered in determining whether negligence exists, as well as the grade.’ International & Great Northern R. Co. v. Cocke, 64 Tex. 151, 157.”

We have no question of known defective brakes in our case so if we delete this feature and simply substitute the facts that Clyde being a resident on the campus at Southwestern University was conscious of the fact that he was speeding, not only on a State highway, but on an extensively traveled city street which was intersected by many other city streets, along an area where residences, hospitals and schools existed, the remaining facts in Puckett are practically identical. Furthermore he was speeding toward a railroad crossing along which he knew trains would be expected. He totally ignored the other traffic, he totally ignored the posted speed limit, he totally ignored the signs warning of the hospital zone, he totally ignored the railroad crossing sign on the block prior to the crossing and totally ignored six red lights, two of them flashing, at the railroad crossing, even though these lights were visible the entire distance from Paul’s Dairy Nook to the crossing. In addition, Clyde ignored the moving train itself and the headlights from cars stopped on the east side of the train which lights could be seen shining between and under the cars. Thus we have, in our opinion, a stronger set of facts for gross negligence here than were those in Bowman v. Puckett.

Appellant points us to the sixty-odd feet of skidmarks left by Clyde’s car before he struck the train as an indication that Clyde did everything possible to avert the crash thus obviating the heedlessness and lack of concern necessary. We do not agree. We hold that the facts above give rise to inferences of such heedlessness and lack of concern even though, when too late, Clyde may have attempted to reverse his chosen course. It has never been held that suicide is a necessary element of gross negligence. In this connection it should be pointed out that the host driver in Bowman v. Puckett, supra, also attempted to avoid the accident and skidmarks were present, however, he too, in ignoring a series of warnings that an ordinary prudent person would have noticed and heeded, had already set in motion a force created by his heedlessness and lack of concern that he was unable to halt.

With respect to appellant’s contention that conduct to be characterized as gross negligence must be persistent or continuing in its course as distinguished from momentary, we cite Fancher v. Cadwell, supra, where the host defendant backed his car from a driveway into the path of an oncoming car. The testimony here was that the series of events took from a minute and a half to three minutes. In holding the host defendant liable for gross negligence, the Supreme Court cited Bowman v. Puckett with approval and reiterated: “The question of whether the acts or omissions were the result of a conscious indifference to the rights or welfare of the person or persons to be affected by such acts is determined by inference from what the actor did and the physical facts that existed at the time and that contributed to the accident, citing cases.”

We also overrule appellant’s objection to the court’s definition of gross negligence for failing to include the element that the acts or omissions complained of must be of a continuous or persistent nature. In submitting this question to the jury, the court used the same wording approved by the Supreme Court in Fancher v. Cadwell.

II.

Appellant’s fortieth and forty-first points of error, briefed together, are those of the court in refusing to submit appellant’s requested special issues inquiring whether Barbara’s request that the defendant take her in an automobile to get something to eat, with the knowledge that he had been drinking intoxicating liquor, was negligence and a proximate cause of the injuries; in refusing to submit appellant’s requested special issues inquiring whether Barbara’s riding in the automobile with appellant with the knowledge that he had been drinking intoxicating liquor was negligence and a proximate cause of her injuries.

We overrule these points.

It is fundamental that only issues raised by the evidence need be submitted to the jury. The question controlling here was not whether appellant had taken several drinks during the course of the evening but whether or not he was intoxicated. There is no evidence in the record of either party to this appeal being intoxicated. 57 Tex.Jur.2d, Sufficiency of Evidence, Sec. 453.

Appellant’s points of error forty-two through forty-five, briefed together, are those of the trial court in permitting appel-lee to answer questions over objection that the answer called for a legal conclusion, such as whether he subscribed to the proposition that one is reckless if he drives a car so fast that he cannot stop when he knows he is approaching a train crossing; whether appellant felt that speeding was wrong; whether he would have been consciously aware that traveling 60 to 90 miles an hour along 12th Street at about 11:45 o’clock on a Friday night was involving an extremely high probability that someone would get hurt; whether the speeding in question was mere inadvertence and error in judgment.

We overrule these points.

The evidence in this record preponderates beyond the shadow of a doubt to the effect that appellant was driving at a reckless rate of speed at the time the accident occurred. The questions objected to call for answers which are no more than platitudes with which we may all agree and which in themselves, if error, were harmless. Tex. Rules of Civil Procedure, rule 434.

Points of error forty-six and "forty-seven, briefed together, are those of the court in permitting witness Manning to testify over objection of defendant’s counsel as to the number of blocks that a car spun out of the Dairy Nook between the hours of 11:00 and 12:00 p. m., in that the witness never saw the car involved; the witness admitted that it was only guesswork on his part with reference to how far the car actually spun out; and the witness did not know that the car which spun out from the Dairy Nook was the same car that was in the wreck; the error of the court in overruling defendant’s objection as to the distance down 12th Street from which one could see flashing lights at the railroad tracks, when on cross examination the witness admitted that such distance testimony was but a guess on his part.

We overrule these points.

Manning’s testimony here was merely cumulative of testimony to the same effect by witness Klepak who testified that he actually saw appellant start with his tires squealing and skidding for quite a long distance. If it was error, and we do not think it was, to admit Manning’s testimony to the same effect because he merely heard and did not see the car, it was harmless error.

Officer Nobles’ testimony as to the distance that the warning light could be seen was an estimate of a qualified witness where the witness had disclosed knowledge of the subject matter derived from observation or experience. 23 Tex.Jur.2d, Distance and space, Sec. 468; Texas Law of Evidence, McCormick & Ray, Section 1436.

Appellant’s points of error forty-eight and forty-nine, briefed together, are the errors of the court in ruling inadmissible the question concerning Alfred Brown’s qualification to judge speed “Of course, you are not in the business of judging speed. You are a school administrator, I suppose,” at which point the court terminated the voir dire examination of Brown and permitted Brown to give his opinion of the speed of defendant’s car; the error of the court in refusing to permit defendant’s counsel to cross-examine the witness Alfred Brown with reference to his prior statement concerning the speed of the defendant’s car as being as low as 40 miles an hour.

We overrule these points.

Witness Brown’s estimate of speed was permissible testimony for the same reasons that Officer Nobles’ testimony was allowed, supra.

The witness, Alfred Brown, testified that he could estimate the speed of the defendant’s automobile as it passed by him and did estimate the speed at 70 miles per hour. He further stated it could have been faster or slower, as little as 60 or as high as 90, but that his best estimate would be at least 70 miles per hour. Defense counsel commenced his cross examination by showing Brown a statement that he had signed a considerable period of time prior to the trial date. The statement had been written by somebody other than Brown. This statement was marked as defendant’s Exhibit No. One, and defense counsel was thereupon permitted to read the statement in its entirety to the jury. The statement was initialed and signed by Brown and indicated that he told the person taking the statement at that time that he could not estimate the speed of the car except that it was traveling over 40 miles per hour in his opinion and that it seemed extremely fast and that it was hard for him to estimate because of the conditions. Defense counsel attempted to have Brown testify that at the time he signed the statement that he actually felt that the speed was over 40 but that he could not estimate the speed. Brown stated that he did not remember giving the statement and, of course, could not recall what he was thinking about at that time. He did admit that the statement contained his initials and signature and did not deny reading it although he could not now recall reading it.

Thereupon, defense counsel asked Brown if he had not stated in defendant’s Exhibit No. One, which had just been read to the jury, that he could not give an opinion as to the speed of the car other than it was going over 40 miles per hour. Plaintiff’s counsel objected that the statement spoke for itself and was the best evidence. The objection was sustained. Whereupon, defense counsel asked Brown whether at the time he gave the statement, he had felt that the defendant’s speed could be as low as 40 miles per hour. The court sustained plaintiff’s objection that this was repetitious and had been gone into before.

It was for the jury to determine the speed of the car from the facts and inferences to be drawn therefrom.

Appellant’s fiftieth point of error is that of the court in refusing to submit the appellant’s requested special issues inquiring whether or not the collision made the basis of the suit was the result of an unavoidable accident.

We overrule this point.

Appellant contends that, if raised by the evidence, the issue of unavoidable accident must be submitted to the jury, citing Dallas Ry. & Terminal Co. v. Garrison, 45 S.W.2d 183 (Tex.Com.App.1932). Appellant further contends that evidence of blinding lights has been held to raise the issue of unavoidable accident citing Bransford v. Pageway Coaches, 129 Tex. 327, 104 S.W. 2d 471 (1937) among other cases. He contends further that evidence of an obstacle that might obstruct the view of the driver has been held to raise such issue citing Rodman Supply Co. v. Jones, 370 S.W.2d 951 (Tex.Civ.App. Amarillo 1963) among other cases.

The Supreme Court has defined unavoidable accident as an event not proximately caused by the negligence of any party to it. Dallas Railway & Terminal Company v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952).

There is no evidence in this case that something other than the negligence of appellant caused the accident. Consequently, the question of unavoidable accident is not raised. Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790 (Tex.Com.App.1941).

III.

By cross assignment of error, appellee complains of the court in refusing to admit in evidence the driving record of appellant as well as that of his step-brother, Owen Fuller Thornton.

Prior to the commencement of trial, appellant filed his motion in limine with respect to appellant’s and his step-brother’s record of traffic violations and automobile collisions. Appellant’s driving record disclosed that since 1961 he has been convicted of accident with a fixed object, negligent collision, motor vehicle accident, operating a motor vehicle without a valid operator’s license, motor vehicle accident, negligent collision, ran red light, speeding, speeding, ran boulevard stop sign, speeding, defective lights, accident with fixed object, negligent collision, speeding, motor vehicle accident, driving on wrong side of street, accident with train, failure to control speed (these latter two convictions were relative to the accident before us). After the accident here in question appellant was convicted of speeding on two further occasions. Appellant’s operator’s license was suspended in 1962, in 1964, in March of 1965 after the accident in question and the suspension was continued in July of 1965. Appellant’s license was suspended at the time of the accident.

Appellant’s brother has a record almost as flagrant and was injured when he too ran a motor vehicle into a train and is presently in the State hospital.

In view of the disposition we have made of this case we do not deem it necessary to pass upon this question.

The judgment of the trial court is affirmed.

Affirmed.

      . “SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that Clyde Walton Hanks, III failed to keep a proper lookout?
      In connection with the foregoing special issue, you are instructs that ‘proper lookout’ means such lookout as a person of ordinary prudence in the exercise of ordinary care would have kept under the same or similar circumstances.
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered Special Issue 1 yes, and only in that event, then answer: SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence that said failure to keep a ‘proper lookout,’ if you have so found, was gross negligence as herein defined?
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered Special Issue No. 2 Yes, and only in that event, then answer:
      SPECIAL ISSUE NO. 3: Do you find from a preponderance of the evidence that said gross negligence, if you have so found, was a proximate cause of the collision in question?
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      SPECIAL ISSUE NO. 4: Do you find from a preponderance of the evidence that Clyde Walton Hanks, III was driving the automobile at an excessive rate of speed before the collision in question?
      In connection with the foregoing special issue, you are instructed that ‘excessive rate of speed’ means such rate of speed as a person of ordinary prudence in the exercise of ordinary care would not have driven under the same or similar circumstances.
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered Special Issue No. 4 Yes, and only in that event, answer: SPECIAL ISSUE NO. 5: Do you find from a preponderance of the evidence that driving the automobile at said excessive speed, if you have so found, was gross negligence as herein defined?
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered Special Issue No. 5 yes, and only in that event, answer: SPECIAL ISSUE NO. 6: Do you find from a preponderance of the evidence that said gross negligence, if you have so found, was a proximate cause of the collision in question?
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      SPECIAL ISSUE NO. 7: Do you find from a preponderance of the evidence that Clyde Walton Hanks, III failed to apply the brakes on the automobile in time to avoid the collision in question? Answer ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered Special Issue No. 7 yes, and only in that event, then answer:
      SPECIAL ISSUE NO. 8: Do you find from a preponderance of the evidence that said failure, if you have so found, was gross negligence as herein defined?
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered Special Issue No. 8 yes, and only in that event, then answer:
      SPECIAL ISSUE NO. 9: Do you find from a preponderance of the evidence that said gross negligence, if you have so found, was a proximate cause of the collision in question?
      Answer ‘Yes’ or ‘No.’
      Answer: Yes”

      . “1st Point: The error of the court in overruling defendant’s motion to disregard Special Issues Nos. 2, 5 and 8, said special issues finding that the failure of the defendant to keep a proper lookout was gross negligence; that the driving by the defendant of the automobile at an excessive speed was gross negligence; and that the failure of the defendant to apply the brakes on the automobile in question in time to avoid the collision was gross negligence, for the reason that said issues have no support in the evidence and there is no evidence to raise such issues and to support the findings of the jury in that the uncontradieted and undisputed evidence established that the defendant was not guilty of gross negligence with respect to driving at an excessive rate of speed, failing to keep a proper lookout or failing to apply the brakes on the automobile which he was driving in time to avoid the collision.
      2nd Point: The error of the court in overruling defendant’s motion for judgment non obstante veredicto for the reason that the finding of the jury in answer to special issues inquiring as to the gross negligence of *the defendant are wrong and should be held for nought because the undisputed and uncontradicted evidence established that the defendant was not guilty of gross negligence with respect to driving at an excessive rate of speed or failing to keep a proper lookout or failing to apply the brakes of the automobile which he was driving at such time in order to avoid the collision; and because of such undisputed and uncontra-dicted evidence no issue of fact with respect to the gross negligence of the defendant was raised for submission to the jury and that a directed verdict for the defendant would have been proper and should have been given.
      3rd Point: The error of the court in overruling the defendant’s motion for directed verdict for the reason that the undisputed and uncontradicted evidence established that defendant was not guilty of gross negligence with respect to driving at an excessive rate of speed or failing to apply the brakes of the automobile which he was driving at such time in order to avoid the collision or failing to keep a proper lookout, and because of such undisputed and uncontradicted evidence no issue of fact with respect to gross negligence of this defendant was raised for submission to the jury.
      4th Point: The error of the court in the submission of the definition of gross negligence in that the court’s definition failed to include the element that the acts or omissions complained of must be of a continuous or persistent nature and the proper definition of gross negligence should have been as follows: ‘By gross negligence as used in this charge is meant more than momentary thoughtlessness, inadvertence or error in judgment. There must be an etire want of care to raise the belief or presumption that the act or omission complained of was the result of conscious indifference to the rights, welfare or safety of the person affected by it. There must be something of a continued or persistent course of action.’
      5th Point: The error of the court in submitting Special Issue No. I to the jury for the reason that there was no evidence that the defendant failed to keep a proper lookout so as to raise the issue.
      6th Point: The jury’s answer to Special Issue No. 1 was contrary to the great weight and preponderance of the evidence.
      7th Point: There was no evidence to support the jury’s answer to Special Issue No. 1.
      8th Point: The error of the court in submitting Special Issue No. 2 to the jury since there was no evidence to raise the issue that defendant was guilty of gross negligence with respect to failing to keep a proper lookout, and the uncon-tradicted and undisputed evidence established that defendant was not guilty of gross negligence in failing to keep a proper lookout.
      9th Point: The error of the court in submitting Special Issue No. 2 to the jury for the reason that there was insufficient evidence of gross negligence on the part of the defendant to warrant or support the submission thereof.
      10th Point: The jury’s answer to Special Issue No. 2 had no support in the evidence because there was no evidence to support Special Issue No. 2 in that the uneontradieted and undisputed evidence established that the defendant was not guilty of gross negligence in failing to keep a proper lookout.
      11th Point: The jury’s answer to Special Issue No. 2 was contrary to the great weight and preponderance of the evidence.
      12th Point: The error of the court in submitting Special Issue No. 3 to the jury for the reason that there was no evidence to raise said issue.
      13th Point: The error of the court in submitting Special Issue No. 3 to the jury for the reason that there was insufficient evidence to warrant the submission of said issue.
      14th Point: There was no evidence to support the jury’s answer to Special Issue No. 3.
      15th Point: The jury’s answer to Special Issue No. 3 was contrary to the great weight and preponderance of the evidence.
      16th Point: The error of the court in submitting Special Issue No. 4 to the jury for the reason that there was no evidence to raise such issue.
      17th Point: The error of the court in submitting Special Issue No. 4 to the jury for the reason that there was insufficient evidence to suport or warrant the submission of this issue.
      18th Point: There was no evidence to support the jury’s answer to Special Issue No. 4.
      19th Point: The jury’s answer to Special Issue No. 4 was contrary to the great weight and preponderance of the evidence.
      20th Point: The error of the court in submitting Special Issue No. 5 to the jury for the reason that there was no evidence to raise such issue and no evidence to support such findings of the jury in that the uncontradicted and undisputed evidence established that the defendant was not guilty of gross negligence in driving at an excessive rate of speed.
      21st Point: The error of the court in submitting Special Issue No. 5 to the jury for the reason that there was insufficient evidence to raise the issue of gross negligence with respect to excessive speed.
      22nd Point: There was no evidence to support the jury’s answer to Special Issue No. 5 in that the uncontradicted and undisputed testimony established that the defendant was not guilty of gross negligence with respect to driving at an excessive rate of speed.
      23rd Point: The jury’s answer to Special Issue No. 5 was contrary to the great weight and preponderance of the evidence with respect to the finding that the rate of speed at which defendant was driving was gross negligence.
      24th Point: The error of the court in submitting Special Issue No. 6 to the jury for the reason that there was no evidence to raise such issue.
      25th Point: The error of the court in submitting Special Issue No. 6 for the reason that there was insufficient evidence to support or warrant the submission of this issue.
      26th Point: There was no evidence to support the jury’s answer to Special Issue No. 6.
      27th Point: The jury’s answer to Special Issue No. 6 was contrary to the great weight and preponderance of the evidence.
      28th Point: The error of the court in submitting Special Issue No. 7 to the jury for the reason that there was no evidence to warrant or support the submission of this issue.
      29th Point: The error of the court in submitting Special Issue No. 7 to the jury for the reason that there was insufficient evidence to warrant or support the said submission.
      30th Point: There was no evidence to support the jury’s answer to Special Issue No. 7.
      31st Point. The jury’s answer to Special Issue No. 7 was contrary to the great weight and preponderance of the evidence.
      32nd Point: The error of the court in submitting Special Issue No. 8 for the reason that there was no evidence to raise such issue and no evidence to support such issue, in that the uncontradict-ed and undisputed evidence established that the defendant was not guilty of gross negligence with respect to failing to apply the brakes on the automobile which he was driving in time to avoid the collision.
      33rd Point: The error of the court in submitting Special Issue No. 8 to the jury for the reason that there was insufficient evidence of gross negligence with respect to the defendant’s failing to apply the brakes on the automobile which he was driving in time to avoid the said collision.
      34th Point: There was no evidence to support the jury’s answer to Special Issue No. 8 in that there is no evidence to raise such issue and no evidence to support such a finding of the jury in that the uncontradicted and undisputed evidence established that the defendant was not guilty of gross negligence with respect to failure to apply the brakes on the automobile which he was driving in time to avoid the collision.
      35th Point: The jury’s answer to Special Issue No. 8 was contrary to the great weight and preponderance of the evidence with respect to the jury’s finding that the defendant was guilty of gross negligence in failing to apply the brakes on the automobile which he was driving in time to avoid the collision.
      36th Point: The error of the court in submitting Special Issue No. 9 for the reason that there was no evidence to raise this issue.
      37th Point: The error of the court in submitting Special Issue No. 9 for the reason that there was insufficient evidence to warrant the submission of said issue.
      38th Point: There was no evidence to support the jury’s answer to Special Issue No. 9.
      39th Point: The jury’s answer to Special Issue No. 9 was contrary to the great weight and preponderance of the evidence.
      40th Point: The error of the court in refusing to submit defendant’s requested special issues inquiring whether Barbara LaQuey’s request that the defendant take her in an automobile to get something to eat, with the knowledge that he had been drinking intoxicating liquor, was negligence and a proximate cause of the injuries.
      41st Point: The error of the court in refusing to submit defendant’s requested special issues inquiring whether Barbara LaQuey’s riding in the automobile with the defendant with the knowledge that the defendant had been drinking intoxicating liquor was negligence and a proximate cause of her injuries.
      42nd Point: The error of the court in permitting plaintiff’s counsel to ask defendant, over objection that the answer called for a legal conclusion, whether he subscribed to the proposition that one is reckless if he drives a car so fast that he can not stop when he knows he is approaching a train crossing.
      43rd Point: The error of the court in permitting plaintiff’s counsel to ask defendant, over objection that the answer called for a legal conclusion, whether the defendant felt that speeding was wrong.
      44th Point: The error of the court in permitting plaintiff’s counsel to ask defendant, over objection that the answer called for a legal conclusion, whether he would have been consciously aware that traveling 60 to 90 miles an hour along 12th Street at about 11:45 o’clock on a Friday night was involving an extremely high probability that someone would get hurt.
      45th Point: The error of the court in permitting plaintiff’s counsel to ask defendant, over objection that the answer called for a legal conclusion, whether the speeding in question was mere inadvertence and error in judgment.
      46th Point: The error of the court in permitting witness Manning to testify over objection of defendant’s counsel as to the number of blocks that a car spun out of the Dairy Nook between the hours of 11:00 and 12:00 p. m., in that the witness never saw the car involved; the witness admitted that it was only guesswork on his part with reference to how far the car actually spun out; and the witness did not know that the car which spun out from the Dairy Nook was the same car that was in the wreck.
      47th Point: The error of the court in overruling defendant’s objection to the testimony of Officer Nobles as to the distance down 12th Street from which one could see flashing lights at the railroad tracks, when on cross-examination the witness admitted that such distance testimony was but a guess on his part.
      48th Point: The error of the court in ruling inadmissible the question concerning Alfred Brown’s qualification to judge speed, ‘Of course, you are not in the business of judging speed. You are a school administrator, I suppose.’, at which point the court terminated the voir dire examination of Brown and permitted Brown to give his opinion of the speed of defendant’s car.
      49th Point: The error of the court in refusing to permit defendant’s counsel to cross-examine the witness Alfred Brown with reference to his prior statement concerning the speed of the defendant’s car as being as low as 40 miles an hour. 50th Point: The error of the court in refusing to submit the defendant’s requested special issues inquiring whether or not the collision made the basis of the suit was the result of an unavoidable accident.”

      . “Art. 6701b. Liability for injuries to gratuitous guest in motor vehicle limited; public carrier and motor vehicle demonstrators excepted
      Section 1. No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.
      Sec. 2. This Act shall not relieve a public carrier or any owner or operator of a motor vehicle while the same is being demonstrated to a prospective purchaser, of responsibility for any injuries sustained by a passenger being transported by such public carrier, or by such owner or operator. Acts 1931, 42nd Leg., p. 379, ch. 225.”

      . Gill v. Minter, 233 S.W.2d 585 (Tex.Civ. App. San Antonio 1950, writ ref’d); Wood v. Orts, 182 S.W.2d 139 (Tex.Civ. App. Houston 1957, no writ) ; Mayer v. v. Karsten, 308 S.W.2d 114 (Tex.Civ. App. Houston 1957, no writ) ; Mayer v. Johnson, 148 S.W.2d 454 (Tex.Civ.App. Amarillo 1941, writ dism. judg. cor.); Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022 (1940) ; Bruton v. Shinault, 314 S.W.2d 143 (Tex.Civ.App. Waco 1958, no writ); Schafer v. Stevens, 352 S.W.2d 471 (Tex.Civ.App. Dallas 1961, no writ); Rice v. Simmons, 356 S.W.2d 206 (Tex.Civ.App. Amarillo 1962, no writ); Montgomery v. Campbell, 362 S.W.2d 658 (Tex.Civ.App. San Antonio 1962, writ ref’d, n. r. e.); Farney v. Herr, 358 S.W. 2d 758 (Tex.Civ.App. Fort Worth 1962, no writ); Linn v. Nored, 133 S.W.2d 234 (Tex.Civ.App. Austin 1939, writ dism’d judg. cor.); Glassman v. Feldman, 106 S.W.2d 721 (Tex.Civ.App. Amarillo 1937, no writ).

      . There is no direct evidence that the lights were flashing at the time of the accident.