text:
    A. C. INGRAM, Appellant, v. Linda INGRAM, Appellee.
    No. 16350.
    Court of Civil Appeals of Texas. Dallas.
    May 29, 1964.
    Rehearing Denied June 26, 1964.

      Andress, Woodgate, Richards & Condos, Wm. Andress, Jr., Dallas, for appellant.
    Nance & Caston, Sherman, for appellee.
   WILLIAMS, Justice.

Action for divorce and child support. Linda Ingram sued A. C. Ingram in the 15th District Court of Grayson County, Texas seeking a divorce, custody of the child born of the marriage, and reasonable child support payments. Following a non-jury trial the district judge granted plaintiff’s prayer for relief and defendant appeals. The record presented to us reflects no reversible error and the judgment of the trial court is affirmed.

FACTS

Appellant and appellee, residents of Dallas County, were married in Rockwall County, Texas on June 13, 1961. On December 16, 1961 a child was born to ap-pellee. Appellee moved to Grayson County in January 1962 and has resided in such county continuously since that date. On March 19, 1962 appellee filed her original petition in the 15th District Court of Grayson County, seeking divorce, custody of the minor child, and child support payments. On March 29, 1962 appellant filed his original answer in the 15th District Court of Grayson County. In Paragraph 1 of this answer appellant asserted that the court did not have jurisdiction of the case because appellee had not resided in Grayson County for more than six months next preceding the filing of the petition. Subject to this “Plea to the Jurisdiction” appellant denied that he and appellee were ever legally married and further denied that he was the father of the child. Appellant’s “Plea to the Jurisdiction” was never called to the attention of the trial court and was never ruled upon. On March' 29, 1962 appellant, filed his original petition, being Suit No. 62,748-Juv. in the Juvenile Court of Dallas County, Texas, styled A. C. Ingram v-Linda Rodriguez Ingram, in which he asked that the marriage between him and appellee-herein be annulled because of alleged' fraudulent representations on the part of’ appellee. In the alternative, he asked for a decree of divorce against appellee. On-May 10, 1963 appellee filed her first amended original petition in the Graysons County suit in which she alleges the same-statutory residential allegations and the same grounds for divorce, as in her original petition. On June 8, 1963 appellant filed his first amended original answer in the Grayson County suit. In Paragraph 1 of this amended answer he alleges that the Grayson County District Court does not have jurisdiction of this suit because appel-lee had not resided in Grayson County for more than six months prior to filing the suit. In Paragraph 2 he alleges, for the first time, that appellee’s suit in the District Court of Grayson County should be dismissed and not considered because of the pending suit in Dallas County. Subject to these “Pleas to the Jurisdiction” appellant again denied the marriage and denied that he was the father of the child. The case came on for trial on August 20, 1963 and judgment was rendered on August 26, 1963.

OPINION

Appellant inveighs against the judgment in six points of error. By his first four points of error, which we will consider together, he contends that the District Court of Grayson County should have sustained his motion to dismiss appellee’s cause of action because (1) appellee had not lived in Grayson County for six months preceding the filing of her original petition on March 19, 1962 and (2) the Juvenile Court of Dallas County, Texas had acquired prior authority to determine the validity of the marriage between the parties and to grant a divorce.

Appellee objects to our consideration of appellant’s first four points of error on the ground that appellant has not complied with Rule 325, Texas Rules of Civil Procedure by filing a motion for new trial complaining of the errors now assigned. We cannot agree with appellee. Rule 325, T.R.C.P. does provide that rulings of the court on preliminary motions would be considered as acquiesced in, unless complained of in motion for new trial. The rule further specifically provides that nothing in Rule 324, T.R.C.P. (providing inter alia, that a motion for new trial is not essential in a non-jury case) shall render a motion for new trial unnecessary in the instances mentioned in Rule 325, T.R.C.P. However, it is our opinion that Rule 325, T.R.C.P. has application to matters not otherwise shown by the record.

Our court, in Harmon v. City of Dallas, Tex.Civ.App., 229 S.W.2d 825, said:

“Furthermore, and along with appellant’s assertion that his cause of action was dismissed without opportunity for amendment, it is nowhere evident in the record that the matter was ever called to attention of the trial court. While a motion for a new trial is not a prerequisite to an appeal from a trial to the court, Rule 324, T.R.C.P., yet if the appealing party desires to complain in the trial or appellate court of anything not apparent of record, unless through the filing of a motion for a new trial, then it is essential that such motion be filed. Rule 325, T.R.C.P.; Vol. 8, T.B.J., p. 15.” (Emphasis added.)

Accord: First Nat’l Life Ins. Co. v. Herring, Tex.Civ.App., 318 S.W.2d 119.

In the case before us appellant did bring the matter to the trial court’s attention and did receive a hearing and a ruling on such motion, all of which is recited in the judgment and exception noted. Accordingly, we hold that Rule 325, T.R.C.P. has no application under the facts here presented.

Appellant’s contention concerning the lack of authority of the District Court of Grayson County to hear appellee’s divorce case because she had not lived in Grayson County for more than six months prior to filing her suit is without merit. While it is true that at the time appellee filed her original petition on March 19, 1962 she had only been living in Grayson County for a little over two months, yet it is likewise true that at the time appellee filed her first amended original petition on May 10, 1963 and at the time the court heard this case on August 20, 1963 appellee had lived in Gray-son County for more than the required period of time.

Appellant candidly concedes that the question here presented is not jurisdictional but relates to the statutory qualifications of a litigant to maintain a suit for divorce. Sec. 8, Art. 5 of the Constitution of Texas, Vernon’s Ann.St. provides that: “The District Court shall have original jurisdiction * * * of all cases of divorce, * * Art. 4631, Vernon’s Ann.Civ.Ct. provides that no suit for divorce shall be maintained in the courts of this state unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an actual bona fide inhabitant of this state for a period of twelve months, and shall have resided in the county where the suit is filed for six months next preceding the filing of the same. Our Supreme Court, in Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198, held that the constitutional jurisdiction of district courts to hear divorce cases could not be taken away by legislative enactment. The court said that Art. 4631, V.A.C.S. was not a jurisdictional statute at all, but merely a statute prescribing the qualifications of the plaintiff in divorce cases. It is unnecessary to cite the numerous cases which have consistently followed this opinion to this date.

Having acquired jurisdiction of the parties and the subject matter of this litigation by the filing of the original petition and defendant’s answer, the District Court of Grayson County had the power and authority to hear and determine defendant’s motion, contained in his original petition, to dismiss plaintiff’s suit for lack of the necessary qualifications. However, appellant at no time ever brought this matter to the attention of the court and secured a ruling thereon. Appellant thereby waived any rights he may have to dismiss appellee’s suit as originally filed.

It is undisputed that the decree in this case was granted upon appellee’s first amended original petition which was filed more than a yeár after appellee had moved to Grayson County. Her amended petition contained nothing new as to grounds for divorce. The case was heard more than sixty days after the filing of the amended petition which satisfied the statutory waiting period.

A similar situation was presented to the court in Myers v. Myers, Tex.Civ.App., 210 S.W.2d 832. In that case the wife filed her original petition in Dallas County seeking a divorce but at that time had not lived in Dallas quite six months. She later filed her amended petition after she had satisfied the statutory residential requirement. The court sustained the husband’s motion to dismiss and in the Court of Civil Appeals, in reversing such action, the court said:

“Thus it would seem that the required inhabitancy must exist at the time of exhibiting the petition, and that residence in the county of the suit must be for a period of six months next preceding the filing of the pleading. However, as in this case, where an amended petition is filed, the question may arise as to whether the requirements must be satisfied at the time of filing the original petition. In our earlier cases it was held that the filing of an amended petition setting up a new ground for divorce must be considered as the institution of the suit rather than the filing of the original, although where the amended petition, as in this case, is merely a continuance or amplification of the original petition, the question of residence should be determined as to the time of filing the original petition. Michael v. Michael, 34 Tex.Civ.App. 630, 79 S.W. 74.
“However, this is not the rule at present. In more recent decisions our courts have held that even in cases in which the amended petition is substantially the same as the original petition, the ‘filing of the suit’ is within the purview of the statute if the amended petition is filed after the petitioner has resided in the county for six months even though the original petition was filed before the six months period had passed. Coleman v. Coleman, Tex.Civ.App., 20 S.W.2d 813; Bateman v. Bateman, Tex.Civ.App., 188 S.W.2d 866, error dismissed; Whitsett et al. v. Whitsett, Tex.Civ.App., 201 S.W.2d 114, writ refused n. r. e.
“From the record it appears that the appellant lacked twenty-two days of having resided in Dallas County six months at the time she filed her original petition. At the time she filed her amended petition she had resided in Dallas County for more than eight months. According to the authorities above cited, she satisfied the resident provisions of Article 4631 at the time she filed the amended petition.”

Several reasons are inherent in this record why the District Court of Gray-son County was correct in refusing to dismiss appellee’s suit because of the pendency of appellant’s suit in Dallas County. Appellant’s contention that the Grayson County suit should have been dismissed on the basis of “comity” because of the Dallas County suit fails to recognize well established rules of law applicable to the existing factual situation. It has long been the settled law of this state than when a court acquires jurisdiction of the parties and subject matter of a cause of action such court continues to maintain paramount rights to dispose of the case even though another case, involving the same parties and subject matter, is subsequently filed in another court of concurrent jurisdiction. 1 Tex.Jur.2d, pp. 40-41, Sec. 20; Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Wheelis v. Wheelis, Tex.Civ.App., 226 S.W.2d 224. As the court said in Wheelis v. Wheelis, supra:

“It is quite apparent that under our system, where we have courts of coordinate jurisdiction, our rules of practice require that such courts accord comity to each other to avoid a multiplicity of suits and to remove the hazard of having different judgments entered between the same parties on the same controverted issues and that the court first acquiring jurisdiction should retain it to the exclusion of all other similar courts until the material issues are tried out and finally determined in so far as that court has the power to do so.”

This court, speaking through Justice Looney, in Long v. Long, Tex.Civ.App., 269 S.W. 207, said:

“It ought to be manifest that, in order to maintain an orderly procedure, and the spirit of comity that should at all times exist between tribunals of equal jurisdiction, when a suit has been commenced in one court, and thereafter one of the litigants institutes a suit against his adversary in another court of equal jurisdiction involving the same subject-matter, the latter should sustain a plea in abatement when timely and properly presented for consideration.”

Applying these principles to the situation presented it is apparent that the Grayson County Court attained jurisdiction of this case and continued to maintain such jurisdiction over the parties and subject matter continuously until the matter was heard and disposed of by final judgment. Appellant’s action in filing the second suit in the Juvenile Court of Dallas County, a court of concurrent jurisdiction with the District Court of Grayson County, did not have the effect of depriving the District Court of Grayson County of jurisdiction or the right to proceed, which right had existed from long prior to the time the Dallas suit had been filed. Applying the rule of Long v. Long, supra, if either suit should have been abated it was the Dallas County suit rather than the Grayson County suit.

Another reason why the Grayson County court was not obligated to yield to the Dallas court is the fact that the record does not disclose that the Dallas court ever attained jurisdiction over the person of ap-pellee. No evidence was introduced, and the record is silent, that appellee was ever served with process in the Dallas County suit or that she ever filed an answer or made an appearance therein. Bateman v. Bateman, Tex.Civ.App., 188 S.W.2d 866.

Appellant’s first four points on appeal are overruled.

By his fifth point on appeal appellant complains of the action of the trial court' in sustaining an objection to a question propounded to appellee on cross examination. She was asked: “Do you know that a request has been made that you and the baby and Mr. Ingram should have your blood types taken, that Mr. Ingram has said if medical science shows that he could not be the father — ”, whereupon objection was made that such question called for an opinion and conclusion of the witness and was not an issue before the court. The court sustained the objection. In developing his bill of exception appellant’s counsel developed the fact that appellee was not told concerning the matter inquired about. In the first place, the matter inquired about was quite immaterial and not an issue in the case. Whether appellant had made some alleged offer to support the child if certain blood tests revealed certain results does not alter appellant’s legal obligation to support the child born following a marriage between him and appel-lee. Furthermore, the action was harmless because appellee is shown not to have had the knowledge inquired about. Finally, appellant has not demonstrated that the court’s action in sustaining objection to this question resulted in an improper verdict in this case. Rule 434, T.R.C.P.

By his sixth point, appellant contends that the evidence is not the full and satisfactory evidence required by Art. 4632, V.A.C.S. We have carefully reviewed all of the evidence, which consists of testimony from appellee and her sister, and we conclude that such evidence is of the nature and character required by statute to justify a divorce. Appellee testified that her husband had denied his marriage to her; accused her of infidelity; abused her verbally and threatened her with bodily injury; failed and refused to cohabit with her after their marriage; stopped supporting her and their baby daughter; caused her severe mental and bodily anguish and caused her to become ill. She testified that such acts on his part rendered their continuation as husband and wife insupportable. Appellant did not offer any testimony nor testify in his own behalf. Appellant’s point is overruled. Art. 4629, V.A.C.S. Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297; Bartels v. Bartels, Tex.Civ.App, 227 S.W.2d 260; Hunter v. Hunter, Tex.Civ.App., 321 S.W.2d 92; Armstrong v. Armstrong, Tex.Civ.App, 350 S.W.2d 348; Meyer v. Meyer, Tex.Civ.App, 361 S.W.2d 935.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    Virginia K. WHITE, Appellant, v. R. Clyde WHITE et al., Appellees.
    No. 53.
    Court of Civil Appeals of Texas. Tyler.
    June 4, 1964.
    Rehearing Denied June 25, 1964.

      William E. Wright, Butler, Binion, Rice & Cook, Houston, for appellant.
    Eugene Pitman, DeLange, Hudspeth & Pitman, Austin C. Wilson, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellees.
   SELLERS, Justice.

Appellant and appellee were lawfully married September 20, 1941, and continued to live together until about September, 1962. These parties were divorced March, 1963. Appellee brought the suit for divorce and appellant filed cross action for divorce which was granted by the court. In that divorce decree the court made a partition of certain property between the parties, as follows :

“It is further ORDERED, ADJUDGED AND DECREED by the Court that Defendant and Cross-Plaintiff, Virginia Kann White, do have and recover of and from Plaintiff and Cross-Defendant R. Clyde White, as reasonable attorney’s fees, the sum of $500.00, together with interest thereon from date of this judgment until paid at the rate of 6% per annum, as to which sum said Cross-Plaintiff, Virginia Kann White, shall have her writs of execution and other process as many and as often as may be necessary.
“It is further ORDERED, ADJUDGED AND DECREED by the Court that Plaintiff and Cross-Defendant, R. Clyde White, be, and he hereby is, awarded as his sole, separate property and estate, the following described property:
“(a) That certain non-participating Retirement Annuity No. A-16,189 with Teachers Insurance and Annuity Association of America, on the life of R. Clyde White, Annuitant, as evidenced by Annuity Contract between R. Clyde White and said Teachers Insurance and Annuity Association of America, dated October 1, 1936;
“(b) One-half of any refund of income taxes overpaid by the Parties for the year 1962;
“(c) Paid-up Equitable Life Insurance Policy on the life of R. Clyde White of net value of approximately $169.00;
“ (d) All term insurance policies upon the life of R. Clyde White, and hospitalization policy with Blue Cross, heretofore carried by R. Clyde White as the insured;
“(e) Any and all other items of personal property now in possession of R. Clyde White, excepting only those items to be transferred to the possession and ownership of Virginia Kann White pursuant to that private agreement heretofore effected between said Parties.
“It is ORDERED, ADJUDGED AND DECREED by the Court that Defendant and Cross-Plaintiff, Virginia Kann White, be and she hereby is, awarded as her sole, separate property and estate, all other property and claims of the Parties of every description and character, including but not limited to the following:
“(a) The home of the Parties at 8119 Greenbush Street in Houston, Texas, more particularly described as Lot 2 in Block 32-A of Knollwood Village, Section 2, an addition to the City of Houston, Harris County, Texas, as shown by the map or plat thereof recorded in Volume 37, at page 3 of the Map Records of Harris County, Texas, together with all improvements thereon;
“(b) That certain joint savings account (being in the approximate amount of $3,750.00) in the name of the Parties at the Continental Bank of Cleveland, Ohio;
“(c) The 1962 model Rambler Ambassador automobile;
“(d) All retirement contracts, funds and insurance policies on the life of Virginia Kann White;
“(e) Any and all other items of personal property now in the possession of Virginia Kann White, excepting only those items to be transferred to the possession and ownership of R. Clyde White pursuant to that private agreement heretofore effected between said Parties.
“All costs of Court hereby decreed against Plaintiff and Cross-Defendant, R. Clyde White, and it appearing that same have been paid contemporaneously with entry of this judgment, it is ORDERED that no execution or other process shall ever issue therefor.”

On July 3, 1963, Virginia K. White brought this suit against her former husband, R. Clyde White, and the Teachers Insurance and Annuity Association of America, alleging

“From September 20, 1941, until July of 1963 Plaintiff, Virginia K. White, and Defendant, R. Clyde White, were lawfully married. They continually lived together as husband and wife from the date of marriage until on or about September 6, 1962. During the entire existence of the aforesaid marriage, Defendant R. Clyde White was the owner and holder of a certain annuity and insurance contract (hereinafter designated ‘Said Contract’), being designated by Defendant TIAA as Contract No. A-16189, and the terms of which are well known to each Defendant. Plaintiff would show that during the approximate entirety of her marriage with Defendant R. Clyde White, that premiums were paid to Defendant TIAA upon Said Contract each month and that such premiums were paid thereon to Defendant TIAA during the residence of Plaintiff and Defendant R. Clyde White in Houston, Texas. Plaintiff would further show that during her marriage to R. Clyde White, until on or about the 21st day of September, 1962, she was sole primary beneficiary of certain death benefits payable under the terms of Said Contract upon the death of Defendant R. Clyde White.
“Shortly after her marriage to Defendant R. Clyde White in 1941, Plaintiff would show that she and Defendant R. Clyde White entered into an agreement, for valuable consideration, whereby Defendant R. Clyde White agreed to (i) maintain Plaintiff as the sole primary beneficiary at all times until said Contract would be surrendered, by mutual consent, and annuity payments thereunder initiated, and, (ii) that upon the surrender of Said Contract, Defendant R. Clyde White would designate Plaintiff as a survivor to any and all rights of annuity under Said Contract pursuant to the provisions contained therein in Paragraph 17, Option A(2), said survivorship option providing an annuity payable for the life of the Annuitant (Defendant R. Clyde White) and an annuity continuing after his death to Plaintiff for the whole of the initial amount payable under Said Contract and under said Option at the time of election.
“Plaintiff would show that in consideration for and in reliance upon Defendant R. Clyde White’s agreement with respect to Plaintiff’s rights in and to Said Contract that she delivered to her husband, R. Clyde White, from time to time and continuously throughout their marriage, her separate income (as earned by Plaintiff from various jobs held throughout the duration of her said marriage), and that Defendant R. Clyde White accepted such moneys and expended said moneys for his personal use, as well as for the common use of said parties. Plaintiff would further show that said agreement was repeated, confirmed and ratified at various occasions during her marriage with Defendant R. Clyde White and that it was specifically agreed that the moneys being paid as premiums upon Said Contract were to constitute the joint savings of the parties and that the parties would share equally in the annuity benefits under Said Contract with the annuity payments to be elected in the future continuing after the death of Defendant R. Clyde White to the Plaintiff under the aforesaid Option A (2). Plaintiff would show that in reliance upon the aforesaid agreement, she did not invest any of her separate income or moneys into savings, annuities, or other retirement plans, nor did she accumulate any separate investments or other properties by which she might provide income for herself in her old age.
“On or about September 20, 1962, the Defendant R. Clyde White breached his agreement and contract with Plaintiff by removing her as primary beneficiary of the death benefit provided under Said Contract and replacing her with other beneficiaries. Plaintiff would further show that Defendant R. Clyde White has evidenced his intention to further and irrevocably breach his obligation to designate Plaintiff as the surviving annuitant and beneficiary under the aforesaid Option A (2) of Paragraph 17 of Said Contract and has threatened to appropriate Plaintiff’s interest under Said Contract wholly unto himself. Plaintiff has good reason to believe that the Defendant has already made efforts to alienate her interest in and to Said Contract and to breach his aforesaid agreement with Plaintiff or that he will do so in the near future unless restrained and enjoined by this Court. Plaintiff further believes that the Defendant TIAA will proceed to make annuity payments to Defendant R. Clyde White within the near future in disregard and violation of Plaintiff’s property rights thereunder and without making provision for her survivorship rights under the aforesaid Option A(2) of Paragraph 17, of Said Contract.
“Plaintiff would show that no provision exists under the terms of Said' Contract by which the accumulation of premiums paid into Said Contract can be surrendered for a present cash value. Further, Plaintiff would show that if Defendant R. Clyde White were allowed to make election under the terms of Said Contract without providing a surviving annuity right thereunder to Plaintiff, that all rights under Said Contract would terminate upon the death of Defendant R. Clyde White and that Plaintiff would then have no recourse or remedy by which she could enforce her rights under Said Contract against Defendant TT AA. Further, Plaintiff would show that the accumulation in Said Contract constitutes the virtual entirety of the property owned by Defendant R. Clyde White and that a judgment for damages against R. Clyde White would be meaningless as Said Contract could not be invaded for satisfaction of such judgment. For these and other reasons which Plaintiff would show upon the trial of this cause, Plaintiff seeks specific performance of the contract and agreement of R.'Clyde White and submits that she has no adequate remedy at law thereto.
“In the event that specific performance is not granted Plaintiff, Plaintiff would alternatively submit that she has been damaged by Defendant’s, R. Clyde White’s, breach of his agreement and contract, in the sum of $23,500.00.”

R. Clyde White filed his answer to this suit by his former wife and denied the allegations contained in the petition and affirmatively alleged the judgment in the divorce case and the division of the property, including the retirement annuity with the Teachers Insurance and Annuity Association of America, wherein the title to the annuity contract was awarded to the defendant, R. Clyde White, in the divorce action.

The defendant, Teachers Insurance and Annuity Association of America, filed its answer, the material part of which is as follows:

“This defendant alleges that insofar as the controversy between the plaintiff, Virginia K. White and the defendant, R. Clyde White, is concerned that is a mere stake holder and as such will abide by the final judgment of this Honorable Court. Accordingly this defendant neither admits nor denies the allegations of plaintiff’s said original petition; alleges that, insofar as it is concerned, these allegations represent the controversy between plaintiff and the defendant, R. Clyde White and neither call for admission nor denial by this defendant.”

In due order, the defendant, R. Clyde White, filed a motion for summary judgment which alleged as follows:

“That the matters now sought to be placed in controversy by the Plaintiff’s Original Petition filed herein have heretofore been adjudicated and settled between Virginia K. White and R. Clyde White, the parties hereto, by the terms of the Final Judgment heretofore rendered and entered by the Court of Domestic Relations No. 2 of Harris County, Texas, in Cause No. 606,084, on the docket of said Court, styled ‘R. Clyde White vs. Virginia Kann White’. By the terms of that judgment, a certified copy of which is attached hereto, the annuity held by R. Clyde White with Defendant Teachers Insurance and Annuity Association of America was awarded to this Defendant R. Clyde White as his sole separate property and estate. That such Final Judgment was and is res adjudicata of all matters now asserted by Plaintiff in the above entitled and numbered cause.
“That Plaintiff’s Original Petition filed herein constitutes an attempt to collaterally attack the terms of the final judgment so rendered by the Court of Domestic Relations No. 2 in Cause No. 606,084 on the docket of said Court, styled ‘R. Clyde White vs. Virginia Kann White’. That such final judgment disposed of all properties and rights to properties of R. Clyde White and Virginia Kann White as same existed prior to such divorce, as well as any and all assertions concerning such property as should have been made in that cause. That the assertions now made by Virginia K. White, if not expressly made in such prior cause were required to have been presented there under the terms of Rule 97(a) of the Texas Rules of Civil Procedure, concerning compulsory counterclaims. That the present Plaintiff’s Original Petition does not purport to contain any of the elements of an equitable bill of review, and constitutes nothing more than a collateral attack upon the terms and provisions of the final judgment above mentioned.
“That Plaintiff is estopped to attack the above mentioned final judgment rendered in Cause No. 606,084, and is estopped by the terms of that judgment to again litigate the issues sought to be presented by Plaintiff’s Original Petition in this cause. In this connection, Defendant R. Clyde White, would show that Plaintiff has accepted and converted to her own use and benefit the substantial money and properties awarded her by the terms of said final judgment rendered in Cause No. 606,084, and has accepted payment in cash of the sum of $500.00 awarded her by the terms of such final judgment, as attorney’s fees. That such judgment has become final, the time for appeal has passed, and the Plaintiff, having accepted the benefits thereof is estopped to attack the terms and provisions of such judgment.”

This motion for summary judgment was heard by the court, and on October 4, 1963, was granted and judgment entered that Virginia K. White take nothing as against the defendant, R. Clyde White and Teachers Insurance and Annuity Association of America or either of them. From this judgment, the appellant, Virginia K. White, has duly prosecuted this appeal.

In the case of Driggers v. Business Men’s Assurance Company of America, 219 F.2d 292, 296, we find this definition of res judicata:

“ 'The general principle announced in numerous cases is that a right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.’ ”

We are of the opinion that this definition is broad enough to sustain the trial court in granting the judgment in this case. If for any reason res adjudicata is not applicable, then estoppel by judgment certainly should prevail.

Article 4638, Vernon’s Civil Statutes, provides:

“The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate. P.D. 3452.”

Under this article a divorce court is given a wide discretion in arriving at a proper division of both the separate and community property of the parties to a divorce decree, and such' discretion should not he disturbed on'appeal, unless the court . has abused its discretion. Hendrick v. Hendrick, Tex.Civ.App., 222 S.W.2d 281; Giesler v. Giesler, Tex.Civ.App., 309 S.W.2d 949.

The above statute has been held to be mandatory by the Supreme Court. Ex parte Scott v. Scott et al., 133 Tex. 1, 123 S.W.2d 306. Under this same authority, it is held that the trial court can decree a trust upon the separate property of the husband for the benefit of the wife.

The divorce court did make a division of the property between the Whites, and in adjusting the equity between the parties awarded the annuity contract to the husband. Other property was awarded to the wife, and the divorce decree became final. And now in this present proceeding in a different court, the wife undertakes to secure additional rights to some of the property awarded to the husband in 'the divorce decree. This court is of the opinion that she cannot do so as long as the divorce decree is in effect.

In the case of Novy v. Novy et al., Tex.Civ.App., 231 S.W.2d 780, where the wife and husband were divorced and a partition of their property was decreed, later the wife discovered that she had been defrauded not only as to the property divided in the divorce decree but other property belonging to the parties not mentioned in the divorce decree was withheld from her and she brought an independent suit to recover the same. The court held that she could maintain her suit as to the property not brought in the divorce decree; but as to the property partitioned in the divorce she could not recover in the independent suit.

In the present suit there is no contention that fraud was involved in the partition in the divorce court; and it is the opinion of this court that, as between the parties to this suit, the divorce decree is k complete bar to re-litigation of the title or any interest in the annuity contract by the parties.

The judgment of the trial court is affirmed.


author: SHARPE, Justice.

text:
    REYNOLDS BROTHERS, INCORPORATED, Appellant, v. A. D. DODSON, Appellee.
    No. 41.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 11, 1964.
    Rehearing Denied July 9, 1964.

      Lee Mahoney, of Mahoney, Shaffer & Hatch, Corpus Christi, for appellant.
    Joe Caldwell and Ellis Clark, Rockport, for appellee.
   SHARPE, Justice.

This is an appeal from a judgment awarding appellee the sum of $6,371.81 against appellant in connection with the sale of a boat by appellant to appellee. Trial was to the court and jury.

One special issue was submitted to and answered by the jury as follows :

“Do you find from a preponderance of the evidence that the vessel in question was entirely worthless to plaintiff for the purpose for which it was intended ?”
Answer: “It was entirely worthless.”

Appellant originally urged four points of error but, on oral argument, abandoned its point number one. Points two, three and four are all directed to the alleged incorrectness and insufficiency of said special issue. Appellant contends that the issue as framed constitutes a comment on the weight of the evidence; that it imposes a higher test as to worth than is required by law in the use of the words “to plaintiff”; and that such issue is an erroneous submission of the proper test to be applied in this case.

The factual background of the case may be briefly stated as follows: On March 30, 1960, appellee ordered from appellant a twenty-four foot Sea Skiff, powered by a Chrysler engine, which was to be delivered at Fulton, Texas, on or about November 1, 1960. The price of the new boat was $5,523.12, which was paid by appellee to the extent of $1,900.00 by trading in a used boat and trailer and the balance of $3,623.12 in cash, said price including $583.12 for transportation charges and taxes. The sale of the vessel in question was by description. The matter was first discussed at appellant’s place of business in Corpus Christi, Texas, where appellee looked at literature furnished by the manufacturer with reference to a twenty-four foot boat. Appellee was advised that appellant did not have previous experience with the particular make and model vessel which was discussed by them. After appellee placed an order for a twenty-four foot vessel, the manufacturer increased the keel length of such model to twenty-five feet. Appellant advised appellee of such fact and at the same time furnished him a specification sheet on the twenty-five foot vessel. The record herein does not reflect any testimony showing that the buyer and seller discussed the speed at which either the engine or the vessel would operate satisfactorily or that any representation was made in such connection in the specifications or otherwise. The skiff was prepared for launching by a third party at Fulton, Texas. It performed satisfactorily up to the point where the engine did not exceed about 2600 r. p. m., according to appellee’s expert witness, but above that speed developed a vibration which some of the witnesses described as “cavitation”. After various adjustments and repairs were made, without results satisfactory to appellee, this suit was filed.

The effect of the judgment is to decree a rescission and to allow appellee recovery of the purchase price of the vessel in question, plus interest from date of judgment.

The general rules concerning rescission of the sale of personal property have been aptly stated in the cases of Wright v. Davenport, 44 Tex. 164 (1875) ; Dillard v. Clutter, 145 S.W.2d 632 (Tex.Civ.App., 1940, writ ref.) and Bedner v. Dunigan Tool and Supply Company, 142 Tex. 663, 180 S.W.2d 919 (1944).

In Wright v. Davenport, supra, the Court said:

“Where there is a breach of the agreement or warranty, accompanied with fraud, the buyer may always return the goods or not, at his pleasure. When there is no fraud, and the warranty goes to the fitness of the article, and it proves wholly unsuitable, or to the identity of the article, and it proves another thing from that for which it was sold, it may be returned upon breach of the agreement or warranty. But if the warranty goes to the degree of fitness or to quality, and it proves to be of an inferior quality or fitness, the goods cannot be returned, and the remedy is by action for damages, the measure of which is the difference between the value of the article as it is and as it was represented to be. Thus, if a machine is sold for a particular purpose, and it will perform none of the functions, it may be returned; but if it only performed them badly the remedy is by action for damages.”

In Dillard v. Clutter, supra, the Court said:

“The only condition under which a buyer has the right of rescission by reason of the warranty of the seller, in the absence of fraud or an agreement for rescission, is where the article or property purchased proves wholly unsuitable for the use or purpose to which it is known by the seller that the buyer intends to place it, or the identity of the article and it proves to be something other than that which was purchased.”

In Bedner v. Dunigan, supra, the Court said:

“The rule is recognized in this state that when the article purchased is entirely worthless for the purpose for which it was known to the seller to have been intended, the buyer is entitled to rescind the contract and recover back the purchase money paid, provided ‘the purchaser as soon as he discovers this fact promptly notifies the seller and tenders back the property.’ ”

-In the recent case of Adams v. Bailey Transportation Company, 334 S.W.2d 591 (Tex.Civ.App., 1960, writ ref. n. r. e.), the rules announced in the above cited cases were reiterated and reversal was ordered because of the insufficiency and incorrectness of an issue submitted to the jury, similar, in some respects to the issue in this case.

The special issue submitted to the jury in this case was not in accordance with the rules announced in the cases here-inbefore referred to, and some of appellant’s objections to it should have been sustained. In short, the issue did not inquire, in substance, if the vessel in question was entirely worthless for the purpose for which it was known to the seller that the buyer intended to place it. The inquiry as to “the purpose for which it was intended” was ambiguous and did not supply a proper test in this case. The jury was not furnished a standard as to what person or persons had determined the “intended” purpose, whether the seller, the buyer, the manufacturer, or some combination of them. The words “to plaintiff” might involve an undisclosed purpose or intention on the buyer’s part, particularly since the issue did not contain any inquiry as to the seller’s knowledge of the buyer’s purpose either as to the speed of the engine or of the vessel.

Because of the errors contained in the special issue submitted to the jury over proper objection of appellant, the judgment must be reversed.

The erroneous submission of the single special issue in this case was closely related to a finding of the trial court that an implied warranty was conclusively established. The trial judge found in the judgment “That as a matter of law, there being no probative evidence to the contrary, defendant (seller), knowing the purpose for which plaintiff (buyer) was buying the boat involved in this suit, made an implied warranty, upon which plaintiff relied, that said boat was suitable for the purposes for which it was sold and would perform the purposes for which it was sold.” The evidence contained in the present record does not authorize the trial judge to find as a matter of law that either an express or implied warranty existed that the vessel in question would operate satisfactorily at an engine speed in excess of about 2600 r. p. m. Appellee offered a witness who testified, in substance, that the vessel in question would travel at a speed of 12 to 15 miles per hour with the engine operating at 2300 to 2600 r. p. m., and that said vessel may very well have been built not to do more than 12 to 15 miles per hour; that there are boats built like that which do not have power to pull them over 12 miles per hour. The fact that the seller knew in a general way that the buyer intended to use the vessel for boating and fishing does not determine the issue created by the buyer’s contention that it should operate satisfactorily at an engine speed in excess of 2600 r. p. m. Consideration of the entire record reflects that, at most, fact issues were presented as to the existence and nature of the alleged warranty or warranties. See 50 Tex.Jur.2d, Sales, § 154, p. 462.

In view of a new trial, we deem it appropriate to call attention to certain basic matters which are involved. A buyer who claims to have suffered legal injury at the hands of a seller may have a choice of remedies; depending upon the nature of the wrong and the circumstances of the case. He may allege a cause of action giving rise.to rescission, and, alternatively, may affirm the contract of sale and claim damages for its breach; but he is not finally entitled to both remedies, since they are inconsistent in nature. A buyer who so pleads alternatively, and does not make an earlier election, is entitled to have all ultimate issues of fact raised by the pleadings and evidence submitted to the jury if they are not conclusively established. Whether they relate to the cause of action for rescission or that involving damages for breach; however, he must elect which theory he will rely upon prior to judgment so that the trial court may properly act in connection with rendition of same. Wood v. Williams, 46 S.W.2d 332 (Tex.Civ.App., 1932, writ dismissed); Roark v. Prideaux, 284 S.W. 624, 629 (Tex.Civ.App., 1926), affirmed, 291 S.W. 868 (Tex. Comm.App., 1927) ; Ruberoid Co., Inc. v. Briscoe (5th Cir., 1961), 293 F.2d 712.

' Upon a new trial of this case the appellee (plaintiff) should make it clear whether or not he desires to plead alternatively for either rescission or for damages involving breach. If appellee does so plead alterna-' tively, and does not elect at an earlier time, the court should submit all disputed ultimate fact issues to the jury whether relating to total or partial failure of consideration, rescission, damages for breach of contract or of warranty or other pertinent issues. Thereafter, and prior to entry of judgment, appellee should be required to make a final election as to which theory he will rely upon. The court should also submit all ultimate fact issues raised by the pleadings and the evidence which are relied upon by the appellant (seller) as defenses to the cause or causes of action asserted by the buyer.

The judgment is reversed and the cause is remanded for new trial.


author: ' WILLIAMS,' Justice.

text:
    R. H. MAYNE et al., Appellants, v. DUNCANVILLE INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 16348.
    Court of Civil Appeals of Texas. Dallas.
    May 22, 1964.
    Rehearing Denied June 19, 1964.

      Bonney & Wade and Minor Morgan, Dallas, for appellants.
    Saner, Jack, Sallinger & Nichols, H. Louis Nichols, Dallas, for appellees.
   ' WILLIAMS,' Justice.

This action was originally instituted by fifty-nine taxpayers and owners of real property located in the Duncanville Independent School District in which plaintiffs sought to enjoin Duncanville Independent School District and James Petton, Tax Collector and Assessor, from collecting the 1962 ad valorem taxes which had become due on October 1, 1962. Plaintiffs alleged that the defendant school district, and its agents, had pursued a deliberate, systematic, arbitrary, fraudulent and unlawful plan, scheme and course of action which had resulted in the imposition of unequal taxes against plaintiffs in violation of Art. 8, Sec. 1, of the Constitution of Texas, Vernon’s Ann.St. Plaintiffs prayed that the assessment against them be declared unconstitutional and void. Plaintiffs withheld payment of the taxes, but paid equivalent sums into the registry of the court pending the outcome of the litigation. The defendants filed their answer and also a counterclaim seeking recovery of the delinquent taxes, plus penalty, interest and foreclosure of tax liens.

Defendants then filed a motion for summary judgment, supported by documents and affidavits pertaining to the method of procedure followed in assessing the various tracts of land. Plaintiffs replied with three separate affidavits from one real estate expert in which he alleged that the plaintiffs’ properties had been substantially overvalued in comparison with other properties in the district. Following a hearing the trial court granted defendants’ motion as to all but nine tracts of land. The action as to the nine tracts was severed and the partial summary judgment as to the remainder became a final judgment and is now before us on appeal.

Appellants’ sole point on appeal challenges the propriety of the trial court’s order sustaining the motion for summary judgment. Since this case is one involving the summary judgment rule, Rule 166-A, T. R.C.P., it becomes our duty, in passing upon the correctness of the trial court ruling, to consider the evidence before the trial court in a light most favorable to appellants and to indulge every reasonable intendment clearly deducible from the evidence in their favor. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. The basic question for our determination is whether the affidavits of appellants’ real estate expert, viewed in their most favorable light, reveal a justiciable fact issue which would entitle appellants to a trial on the merits of the case before a court or jury.

Appellees’ motion for summary judgment alleged the absence of an issue of fact. Attached to this motion was a certified copy of the tax roll showing the taxes due and owing by the appellants, describing the land in each instance as well as its valuation for tax purposes.

Appellees attached the affidavit of J. E. Petton, Assessor and Collector of Taxes, showing that for 1962 all things required to be done in the assessment and levying of taxes by the proper officials of the school district had been legally performed.

Exhibit “C”, attached to appellees’ motion contains the various minutes of the meeting of the Board of Equalization of the district. This instrument shows the names of appellants who appeared before the Board to protest the levy and assessment of their taxes and also reveals those appellants who did not appear and protest. These minutes reveal that in some instances the Board made certain adjustments and in other instances the adjustment was denied.

Exhibit “D” sets out the procedure followed by the Assessor and Collector of Taxes in arriving at the valuations and carrying out the equalization program, stating specifically the steps followed in appraising each piece of property, the notice given to the taxpayers, and the types of work sheets completed in valuing each piece of property.

In opposition to the motion appellants tendered three affidavits executed by A. A. Slaughter, a realtor and real estate appraiser whose experience and qualifications were not challenged. In the first two affidavits filed by Slaughter the witness makes broad and general statements and conclusions relating to lack of uniformity in appraising properties within the school district. Therein he states that he has examined and appraised the properties owned by the appellants and that he has also examined and appraised a cross-section of properties within the district, but not owned by appellants, and that a comparison of these appraisals leads him to the conclusion that the school district has adopted a policy of appraising other properties at a lesser value than the properties owned by appellants.

In his third affidavit Slaughter attaches as Exhibit “A” a list of the real properties owned by appellants and the market value of each as appraised by the school district. He also then sets out his appraisal of the value of these properties. It is admitted that in practically every instance appellants’ properties consist of unimproved acreage. An analysis of the comparison of Slaughter’s appraisal and the appraisal of the school district as to the properties owned by appellants is rather interesting. In one instance Slaughter’s appraisal is higher than that of the school district. In two instances the appraisals are identical. In a relatively few instances Slaughter’s appraisal is one-half that of the school district. In the remaining instances, representing the great bulk of the properties of the approximately fifty-nine appellants there is only a relatively small range of difference, between the appraisals.

Slaughter attaches to his third affidavit, as Exhibit “B”, a list of 166 properties belonging to persons other than the appellants. These properties consist of residential properties with improvements located thereon and in each instance the value assessed by the district is the same or less than the valuation placed thereon by Slaughter. He concludes his affidavit as follows:

“These lists show that the closely spaced house and lot properties belonging to persons other than the Plaintiffs, are valued by the School District for tax purposes at their actual market value or less; whereas the properties of the Plaintiffs are valued by the School District for tax purposes at figures grossly in excess of their actual market value.”

Appellants contend that Slaughter’s three affidavits, when taken as true, demonstrate that appellants are discriminated against in the matter of assessment of taxation, contrary to the constitutional provision. We are unable to agree with appellants and affirm the trial court’s judgment.

The constitutional attack against the school district in this case stems from Art. 8, Sec. 1, of the Constitution of Texas which provides that: “Taxation shall be equal and uniform” and that all property “shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.” Art. 7174, Vernon’s Ann. Civ.St. provides that “[R]eal property shall be valued at its true and full value in money.” Art. 7212, V.A.C.S. has invested power in boards of equalization to hear evidence touching on the market value or true value of property. It has been held that these provisions mean that assessed valuations shall be based on the reasonable cash market value of property. Rowland v. City of Tyler, Tex.Comm.App., 5 S.W.2d 756. The question of what constitutes “equal and uniform” has resulted in many problems for the reason that exact uniformity and equality have long been recognized as being unattainable. Rosenburg v. Weekes, 67 Tex. 578, 4 S.W. 899; Cooley on Taxation, 4th Edition, Vol. 1, Sec. 259. Accordingly, courts have sought to establish certain rules which must be followed as guides to determine whether a tax on assessed valuations violates the constitutional requirement.

The cardinal rules governing this case are set forth in the case of State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, wherein the court said:

“It is now well settled that the assessment of property for tax purposes is a quasi-judicial function of boards of equalization and that no attack on valuations fixed by such boards can or will be sustained in the absence of proof of fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation. State v. Houser, 138 Tex. 28, 156 S.W.2d 968, 970-971; Druesdow v. Baker, Tex.Com.App., 229 S.W. 493, 495. Moreover, when their official action is attacked it will be presumed that such boards discharged their duties as public agencies according to law and acted in good faith. Zachary v. City of Uvalde, Tex.Com.App., 42 S.W.2d 417; Lubbock Hotel Co. v. Lubbock Ind. School Dist., Tex.Civ.App., 85 S.W.2d 776, no writ; Hinkson v. Lorenzo Ind. School Dist., Tex.Civ.App., 109 S.W.2d 1008, writ dism.
“While it has been held that a grossly excessive valuation may, in law, be sufficient to establish such fraud or illegality as to render a valuation void, Johnson v. Holland, 17 Tex.Civ.App. 210, 43 S.W. 71, writ denied; City of Sweetwater v. Baird Development Co., Tex.Civ.App., 203 S.W. 801, no writ; Simkins v. City of Corsicana, Tex.Civ.App., 86 S.W.2d 792, no writ; Howth v. French Ind. School Dist., Tex.Civ.App., 115 S.W.2d 1036; French Ind. School Dist. [of Jefferson County] v. Howth, 134 Tex. 211, 134 S.W.2d 1036, it is held with equal emphasis that mere errors in judgment or the fact that a trial judge or jury differs with the valuation fixed will not suffice as a basis for avoiding the board’s action. Simkins v. City of Corcicana, supra; Druesdow v. Baker, supra; State v. Houser, supra.”

■ The court also said:

“If a valuation fixed by a board of equalization is attacked on the ground of unlawful or arbitrary discrimination it is not sufficient to show, comparatively, that in other isolated instances, property of equal or greater value than that in suit, was valued at less, Dallas Coun-' ty v. Dallas Nat. Bank, 142 Tex. 439, 179 S.W.2d 288.”

The Supreme Court, in State v. Houser, 138 Tex. 28, 156 S.W.2d 968,.held that such valuations will not be set aside merely upon a showing that the same are in fact excessive. As we held in Hutchinson v. City of Dallas, Tex.Civ.App., 290 S.W.2d 253, the showing of mere excessiveness of value is not sufficient as a matter of law to raise a fact issue in a suit attacking the validity of an assessment on the ground of unlawful or arbitrary discrimination. It is necessary to go further and show that the valuation given the property was so grossly excessive as to constitute in law evidence of fraud, bad faith, or illegality on the part of the equalization board, We believe that our opinion in the Hutchinson case, supra, is determinative of this appeal.

Inasmuch as it is well established that the good faith of tax officials is presumed, the burden of proof is upon the appellants to establish a violation of the constitutional guarantee of uniformity. Reynolds v. Crudgington, Tex.Civ.App., 266 S.W.2d 430; Hutchinson v. City of Dallas, Tex.Civ.App., 290 S.W.2d 253.

Appellants’ efforts to meet this burden of proof, and to demonstrate the existence of issuable facts, must be found, if at all, in Slaughter’s affidavits. We have carefully reviewed and considered these three affidavits in their most favorable light, and having done so we conclude that they fall short of meeting the requirements of the law when measured by the rules announced above. Of course we discard the general statements and legal conclusions, not supported by factual statements contained in the affidavits because these are not sufficient to raise a fact issue. Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832; Leach v. Estate of E. C. Cassity, Tex.Civ.App., 279 S.W.2d 630; Hutchinson v. City of Dallas, Tex.Civ.App., 290 S.W.2d 253. When we look to the factual allegations contained in the affidávits we find that they reveal two things. First, they do reveal that in a few instances appellants’ properties have been valued by Slaughter at one-half the value set by the taxing authority. Secondly, a group of approximately 166 other properties, admittedly small lots and houses, are valued differently than appellants’ properties, admittedly acreage and unimproved properties. In our opinion, neither of these factual situations presents sufficient probative evidence to raise a factual issue of fraud or violation Of constitutional prohibition against discrimination in taxation.

In the first instance-the mere over-valuation of appellants’ properties, as compared with the valuation placed on the same properties by Slaughter, is not sufficient. The alleged over-valuation must be such as to be grossly excessive and our study of the com- ■ parison of valuations leads us to the firm belief that a gross excessiveness is not shown, as a matter of law. Viewing his factual statements within the four corners of the affidavit, and exhibits attached, we conclude that rather than showing a grossly excessive valuation on the part of the district, Slaughter has merely demonstrated nothing more than the fact that in a few instances his valuation differs with that of the district and this,does not meet the requirements of the law to demonstrate evidence of fraud, bad faith or illegality on the part of the district.

In support of its contention appellants rely upon the decision of the Supreme Court in Dallas County v. Dallas Nat’l Bank, 179 S.W.2d 288. However, an examination of the factual situation presented in that case clearly reveals that the opinion of the court is not applicable here. In that case the evidence demonstrated that the property of the bank had been valued at approximately seven times as high as similar land. As Chief Justice Alexander of the Supreme Court said:

“A reasonable discrepancy between the true value of the property and the value at which it is assessed for taxes will be permitted to cover the difference in judgment as to the value of the property; but where the property is assessed at a value seven times as high as its true value, the discrepancy is too great. It does not evidence a mere difference in judgment as to the value of the property. (Citing authorities.)
“On the other hand, one whose property has been assessed on substantially the same basis as the great bulk of the property on the same tax roll may not have his assessment cancelled merely because in isolated instances some of the other property on the tax roll has been assessed at less than its proportionate value.”

Appellants also rely upon Simkins v. City of Corsicana, Civ.App., 86 S.W.2d 792, but a careful examination of that opinion demonstrates that it is not controlling of the factual situation here presented. In that case the court rightfully struck down the assessment made by the City of Corsicana because of a clear demonstration that the City had delegated its duty of assessment to an individual and had acted arbitrarily in assessing the property by agreeing in advance to adopt and adhere to such individual’s blanket report of the value of all real property within the city, without hearing further evidence. No such situation is present in this case

Furthermore, Slaughter’s demonstration that certain pieces of property, consisting of houses and lots, were valued differently than the properties of appellants, admittedly consisting of unimproved acreage, is insufficient, as a matter of law, to present an issue of fact as to fraud or illegality of assessment. This is for the simple reason that according to Slaughter’s own statement the alleged comparable properties are different in kind and character than that owned by appellants. To form a comparison the properties should necessarily be of the same general kind and character.

Finding no error requiring reversal, the judgment of the trial court is affirmed.

Affirmed.


text:
    The CITY OF ATHENS et al., Appellants, v. GULF STATES TELEPHONE COMPANY, Appellee.
    No. 30.
    Court of Civil Appeals of Texas. Tyler.
    May 7, 1964.
    Rehearing Denied June 11, 1964.
    Second Rehearing Denied June 30, 1964.
    See also Tex.Civ.App., 374 S.W.2d 757.

      John W. Key, Jr., Life, Bolding & Key, Athens, Garland F. Smith, Smith, Mcllher-an & Jenkines, Weslaco, for appellants.
    Jack Binion and Richard B. Mayor, Butler, Binion, Rice & Cook, Houston, William H. Kugle, Jr., Athens, for appellee.
   SELLERS, Justice.

This is a telephone company rate case brought by the Gulf States Telephone Company against the City of Athens, Texas, its Mayor and Members of its City Council in the District Court of the Third Judicial District of Henderson County. The Telephone Company seeks to permanently enjoin the City of Athens from enforcing a schedule of local rates adopted by the City Council in Ordinances dated September 8, 1961, and July 30, 1962.

The trial court found that the rates prescribed by the ordinances did not permit the company to earn a fair rate of return on the fair value of the company’s property devoted to rendering local exchange telephone service in the City and that therefore such ordinances are violative of the United States Constitution and the laws and Constitution of the State of Texas. The court granted a permanent injunction against the City from enforcing said ordinances and the rates therein provided for. From this judg-merit the City has duly prosecuted this appeal.

The first three assignments of error by the City are as follows:

“THE TRIAL COURT ERRED IN RULING THAT ARTICLES 1175(12) AND 1124, VACS, DID NOT DELEGATE TO THE GOVERNING BODIES OF HOME RULE CITIES POWER TO REGULATE INTRASTATE TOLL TELEPHONE RATES TO INHABITANT SUBSCRIBERS, BECAUSE SUCH POWER IS EXPRESSLY DELEGATED BY SAID STATUTES.
“THE TRIAL COURT ERRED IN RULING THAT EVIDENCE OF PLANT INVESTMENT, EXPENSES AND INCOME RELATED TO RENDERING INTRASTATE LONG DISTANCE SERVICE TO THE INHABITANT SUBSCRIBERS WAS INADMISSIBLE, BECAUSE SUCH EVIDENCE IS RELEVANT TO THE ISSUES OF ‘FAIRNESS’ OR ‘REASONABLENESS’ OF THE RATE, AND THE ISSUE OF WHETHER OR NOT THERE HAS BEEN A PROPER AND ACCURATE SEPARATION OF PLANT VALUE AND EXPENSES RELATED TO LOCAL AND INTRASTATE LONG DISTANCE SERVICE.
“THE TRIAL COURT ERRED IN SUSTAINING THE TELEPHONE COMPANY’S EXCEPTIONS TO INTERROGATORIES AND REQUESTS FOR ADMISSION RELATING TO PLANT INVESTMENT, EXPENSES AND INCOME INVOLVED IN RENDERING INTRASTATE LONG DISTANCE SERVICE, FOR THE REASON SUCH EVIDENCE IS SO DIRECTLY RELATED TO THE QUESTIONS OF ‘FAIRNESS’ OR ‘REASONABLENESS’ OF RATES, AND PROPER ‘SEPARATION’ OF VALUE AND EXPENSE THAT ITS DENIAL OR DISCOVERY RENDERS IT IMPOSSIBLE FOR A CITY TO PREPARE ITS DEFENSE.”

The first contention on this appeal is to the effect that the City being a home-rule city has the legislative power to regulate intrastate long distance rates. This contention is insisted upon in the face of fact that the identical question was decided adversely to its contention in the case of the City of Weslaco v. General Telephone Co. of the Southwest, Tex.Civ.App., 359 S.W.2d 260.

In our opinion, the San Antonio Court of Civil Appeal was correct in its holding that such authority had not been granted to the City by the State Legislature.

Neither is the City entitled to consider the intrastate earnings of the company on long distance service in aid of the local rates or the fairness of the separation of the plant value and expenses in arriving at the rate to be charged by the Telephone Company.

Article 1124 of the Revised Civil Statutes provides, in part:

“Any city having a special charter or a charter adopted or amended under the provisions of chapter 13 of this title, and having authority under its charter to determine, fix and regulate the charges, fares or rates of compensation to be charged by any person, firm or corporation enjoying a franchise in said city, shall in determining, fixing and regulating such charges, fares or rates of compensation, base the same upon the fair value of the property of such person, firm or corporation devoted to furnishing service to such city, or the inhabitants thereof, * *

In construing this article in the case of City of Baytown, et al. v. General Telephone Company of the Southwest, Tex.Civ.App., 256 S.W.2d 187, the Court held: '

“The power to regulate rates of public utilities is inherent in the Legislature. Munn v. Ill., 94 U.S. 113, 24 L.Ed. 77; Missouri, K. & T. Railway Co. v. Empire Express Co., Tex.Com.App., 221 S.W. 590; Daniel v. Tyrrell & Garth Investment Co., 127 Tex. 213, 93 S.W.2d 372.
“The Legislature may delegate this power and prescribe the conditions under which the power shall be exercised. When delegated, the power may be exercised only in accordance with the conditions prescribed by the Legislature. Home Tel. & Tel. Co. v. City of Los Angeles, 211 U.S. 265, 29 S.Ct. 50, 53 L.Ed. 176; City of El Paso v. El Paso City Lines, Inc., Tex.Civ.App., 227 S.W.2d 278.
“In Texas this power has been expressly delegated to the city commissions and councils, subject to certain conditions prescribed by the Legislature for the exercise of such power.
“There are two statutes relating to appellants’ power and duty to regulate rates for appellee. They are Article 1175, § 12, and Article 1124, R.C.S. ■ 1925.”

Many telephone rate cases have been heard in the courts of Texas and have followed the above statute in arriving at a fair and reasonable rate for the utilities involved, and none have come to our attention which took into consideration the earnings of the company in its intrastate business.

The contention was denied in principle by the Supreme Court of this state in the case of General Telephone Company of the Southwest v. City of Eden, et al., 293 S.W.2d 753. In this case it is held :

“In proceedings by telephone company to enjoin enforcement of city ordinance establishing telephone rates on basis that such rates provided for an inadequate return, fact that because of drought the subscribers were less able to pay proper charges or that entire system of telephone company was earning adequate revenues, was immaterial on issue as to whether injunctive relief against inadequate rates should he granted." (Emphasis supplied)

Points 4, 5, and 6 are as follows :

“THE TRIAL COURT ERRED IN RULING THAT EVIDENCE OF THE SEPARATE PLANT VALUE, EXPENSES AND INCOME RELATED TO RENDERING LOCAL TELEPHONE SERVICE TO SUBSCRIBERS IN THE RURAL AREA SURROUNDING ATHENS, BUT OUTSIDE THE CITY, WAS INADMISSIBLE, BECAUSE SUCH EVIDENCE IS RELEVANT TO THE ISSUES OF ‘FAIRNESS’ OF THE RATE TO INHABITANTS OF THE CITY, AND WHETHER OR NOT SUCH INHABITANT RATE PAYERS ARE BEING BURDENED BY THE UNECONOMIC RURAL OPERATION.
“THE TRIAL COURT ERRED IN REQUIRING THE INHABITANT RATE PAYERS OF ATHENS TO ABSORB THE PROBABLE LOSSES FROM NONRESIDENT RURAL OPERATION, WHILE DENYING THEM THE BENEFIT OF THE MORE PROFITABLE INTRASTATE LONG DISTANCE OPERATION, BECAUSE SUCH RULING IS INCONSISTENT, DISCRIMINATORY AND UNFAIR ON ITS FACE.
“THE TRIAL COURT ERRED IN DENYING THE CITY ITS RIGHTS UNDER THE DISCOVERY RULES TO INQUIRE INTO THE SEPARATE PLANT INVESTMENT, EXPENSE AND INCOME RELATING TO THE RURAL OPERATION, . FOR THE REASON THAT SUCH INFORMATION IS RELEVANT TO THE ISSUE OF ‘FAIRNESS’ TO THE INHABITANT ATHENS SUBSCRIBERS, AND ITS DENIAL RENDERED IT IMPOSSIBLE FOR THE CITY TO PREPARE ITS DEFENSE.”

The contention made by these assignments is overruled on the holding by the Supreme Court in the case of the General Telephone Company of the Southwest v. City of Wellington, et al., 294 S.W.2d 385, from which we quote:

“Where telephone company operating a single community exchange serving subscribers within city limits as well as in suburban area attacked validity of rates established by city ordinance on the ground that the same were confiscatory, it was proper to determine rate of return on basis of entire exchange rather than attempting a breakdown into operations based on subscribers within and without city limits. Vernon’s Ann.Civ.St. art. 1119.”

Point 7 is as follows:

“THE TRIAL COURT ERRED IN RULING THAT THE RATE HEARING COULD PROCEED AGAINST ATHENS WITHOUT JOINDER OF THE OTHER CITIES IN THE GULF STATES SYSTEM, FOR THE REASON THAT SUCH OTHER CITIES ARE NECESSARY PARTIES TO SUCH A HEARING.”

We are cited to no authority in support of this assignment. We regard the law as settled that a city is limited in fixing and promulgating local telephone rates to a consideration of the reasonable return upon the fair value of the property being used in rendering local telephone service to its inhabitants. If we are correct in this holding, then it follows that each city where a company operates must stand on its own values in reaching the local rates for the respective cities, and for this reason would not be a necessary or a proper party to a rate case in any other city. General Telephone Company of the Southwest v. City of Eden, supra. This cáse held that the earnings of the company on its entire system was immaterial on issue as to whether injunc-tive relief against inadequate rates should be granted.

There are other assignments of error by appellant relating to the trial court’s ruling on evidence and the court’s conclusions therefrom. Since the case was tried before the court without a jury, and there are no findings of fact and conclusions of law in the record, and no request of the court to so find, it is our opinion that the evidence was sufficient to support the trial court’s finding that the present rates authorized by the city for local telephone service in the City of Athens are confiscatory, which was the controlling issue for the disposition of the case, and these assignments are overruled.

The judgment of the trial court is affirmed.

MOTION FOR REHEARING

Appellee points out in its motion for rehearing that the order of this court granting a temporary injunction against the City from enforcing the ordinances involved, conditioned upon appellee filing of a bond with the clerk of the trial court, fails to state when this injunction would cease to exist.

In this connection, this court is of the opinion that the injunction heretofore granted by this court which has not been dissolved or superseded and is still in full force and effect should remain in effect until the clerk of the trial court receives the Mandate from the clerk of this court or the Supreme Court, finally disposing of this appeal, and it is so ordered.

In all other respects, the motion of appel-lee for rehearing is in all things overruled and denied.

Appellants’ motion for rehearing, after due consideration, is overruled.


author: BATEMAN, Justice.

text:
    Jamie NEWSOM, individually and as guardian, et vir, Appellants, v. Joseph C. CAMP et ux., Appellees.
    No. 16347.
    Court of Civil Appeals of Texas. Dallas.

    May 29, 1964.
    Rehearing Denied June 26, 1964.

      Harris, Anderson, Henley, Shields & Rhodes, Charles O. Shields, Dallas, for appellants.
    J. Alex Blakeley and Rae Ann Fichtner, Dallas, and Ralph M. Hall, Rockwall, for appellees.
   BATEMAN, Justice.

This is an appeal from a judgment granting leave to the appellees, Hazel Camp and her husband, Joseph C. Camp, to adopt her minor granddaughters, Sue Ellen Scott, Norma Jo Scott and Charlotte Jean Scott. It is another phase of a rather bitter controversy between the two grandmothers of these little girls that has received the attention of certain courts in Arkansas and Texas during the past five years. See Camp v. Newsom, Tex.Civ.App., 329 S.W.2d 347, err. ref. n. r. e., and Camp v. Newsom, Tex.Civ.App., 354 S.W.2d 695. Jamie Newsom is the paternal grandmother and guardian of the persons and estates of the minors under letters of guardianship issued to her by the Probate Court of Pulaski County, Arkansas. Hazel Camp is the maternal grandmother and resides with her husband in Rockwell County, Texas, having formerly resided in Dallas County, Texas. The parents of these children both died on January 5, 1959 in Little Rock, Pulaski County, Arkansas, where they resided.

We shall summarize only those facts necessary to an understanding of the questions raised on this appeal and our disposition thereof. In August 1960, while residing in Dallas County, the appellees filed in the Juvenile Court of Dallas County a petition for adoption of the children without notice to appellants. That court granted that petition on October 3, 1960. Upon bill of review filed by appellants when they became aware of this, the adoption was set aside by order dated October 24, 1961. The Camps appealed and we dismissed that appeal because the judgment was not final. Camp v. Newsom, 354 S.W.2d 695. Subsequently, on December 4, 1962, by agreement of the parties, another order was entered in the same case again setting aside the adoption of October 3, 1960, awarding custody to the Camps subject to reasonable visitation rights of the Newsoms, enjoining Mrs. Newsom from suing in Arkansas to change custody during said period of visitation, enjoining the Camps from filing a suit to adopt said children “in any court having jurisdiction to grant said adoption” without notifying Mrs. Newsom, and providing “that all relief sought by either party not specifically granted herein is * * * hereby specifically denied.”

By their first two points of error on appeal the appellants attack the judgment of adoption on the. ground that there was no statutory authority for it. They first cite Grant v. Marshall, 154 Tex. 531, 280 S.W.2d 559, as holding that there can be no lawful adoption in Texas in the absence of specific statutory authority. With this we agree. They then argue that our adoption statute, Vernon’s Ann.Civ.St. Art. 46a, makes no provision for the adoption of a minor having no living parent or parents and that, absent a showing that they are dependent and neglected within the purview of Arts. 2330-2337, V.A.C.S., these little girls simply cannot be lawfully adopted in Texas. With this we do not agree.

Section 1 of Art. 46a provides that “any adult person may petition * * * for leave to adopt a minor child.” Section la provides:

“Every petition for leave to adopt a minor child shall set forth among the facts relative to petitioner and the child the following information: * * * (6) what written consent papers have been obtained from the natural parent or parents and if none obtained, then specify which exception to the necessity for such consent is applicable; * *.”

The pertinent portion of Section 6, relating to the consent of parents, is:

“Except as otherwise provided in this Section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, then, in either event, it shall not be necessary to obtain the written consent of the living parent or parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such child’s residence; or if there be no Juvenile Court, then on the written consent of the Judge of the County Court of the county of such child’s residence.”

Appellants would have us construe Section 6 to mean that no adoption of a minor shall be permitted unless (1) the minor shall have a living parent or parents and (2) such parent or parents give written consent to the adoption, except that such consent will not be required in case of voluntary abandonment for two years, or failure to contribute substantially to the child’s support, etc. as set forth in the section.

We do not so construe the statute. In our opinion, the purpose and intent of the Legislature in enacting Section 6 was to recognize the inherent right of parents to the possession, custody, control, services and earnings of their children, and that their children should not be subject to adoption by others, so long as the parents meet the corresponding obligations of not abandoning their children to the care of others and contributing what they reasonably can to their support. That being what we conceive to have been the legislative purpose of Section 6, and there being nothing else in Article 46a to indicate an intent to limit the general authority contained in Section 1, we hold that the statute does authorize the adoption of minors who have no living parents and who are not dependent or neglected. Hardy v. Wernette, 134 Tex. 229, 134 S.W.2d 1032.

Appellants also contend under the second point that the order of the Juvenile Court of Dallas County dated December 4, 1962, setting aside the previous adoption of these children by the appellees was res judi- cata and required the district court of Rock-wall County to refuse appellees leave to adopt. We do not agree with appellants. The order was admittedly entered by agreement. It set aside the previous adoption hut did not adjudicate that appellees were not legally entitled to adopt the children or that it was not then, and never could be in the future, to the best interest of the children for appellees to adopt them. It is true that the order specifically denied all relief sought and not specifically granted, but it also specifically recognized the right of appellees again to petition a court of competent jurisdiction for leave to adopt these children provided they gave proper notice to appellants. Under all of these circumstances we hold that the order of December 4, 1962 was not res judicata of the present action.

The first two points of error are overruled.

Under their third, fourth and fifth points of error appellants remind us that the children’s original domicile was in Arkansas, where they resided with their parents at the time of the death of the parents and where the Probate Court had awarded custody of the children to appellants and appointed Mrs. Newsom as their guardian. They say that the orders of the Arkansas court are entitled to full faith and credit in Texas, and that the wrongful removal of the children by appellees from Arkansas, in violation of the express order of the Arkansas court, did not change the legal domicile of the children, and that the court below had no power to grant leave to adopt children whose legal domicile was in another state. We do not agree, for three reasons.

1. Appellees were legally domiciled in Texas and they and the girls were residing in Texas when the petition was filed. This was sufficient to give the trial court jurisdiction to authorize the adoption. Restatement, Conflict of Laws, p. 209, § 142; Art. 46a, V.A.C.S.; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293. In a case such as this the technical legal domicile of a child of tender years “is not a sine qua non of child custody jurisdiction on the part of our courts.” Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 878, 4 A.L.R.2d 1.

2. Several things occurred since the Waco Court of Civil Appeals, in Camp v. Newsom, 329 S.W.2d 347, err. ref. n. r. e., held that Mrs. Newsom was entitled to custody by virtue of the orders of the Arkansas court, to which Texas must give full faith and credit. Chief among these was the entry by agreement of the order of the Juvenile Court of Dallas County dated December 4, 1962, more than three years after the opinion of the Waco court was handed down, wherein the Juvenile Court, by agreement of appellants, awarded custody to appellees. We must assume that the situation with respect to the children had so changed as to make appellees’ custody desirable, else appellants would not have agreed to it. If it was desirable; i. e., in the best interest of the minors, the Texas court had the right and power to permit the adoption and was not bound to refuse such permission merely because the Arkansas court three years previously had awarded custody to another. “The rights and welfare of the children are the paramount things to be considered in adoption and child custody cases.” Davis v. Collins, 147 Tex. 418, 216 S.W.2d 807, 811.

3. Appellants invoked the jurisdiction of the Juvenile Court of Dallas County and agreed to its judgment which, while setting aside its previous order of adoption, tacitly recognized the right of appellees to file a new petition in a court of competent jurisdiction for leave to adopt these girls. If the matter of domicile of the children were an important consideration here, we would have to hold that when they began their residence with appellees in Texas, followed by the judgment awarding custody to appel-lees, which judgment was agreed to by appellants and, to quote from their brief, is still “valid and subsisting,” the children acquired a new domicile in Texas, thus removing that objection to the validity of the judgment of adoption.

These three points are also overruled.

By their sixth and seventh points appellants say the trial court erred in refusing to enforce the judgment of the Waco court in Camp v. Newsom, 329 S.W.2d 347, directing that the minors be returned to appellants, and in not enforcing appellants’ visitation rights given them by the judgment of the Juvenile Court. From what we have said above with respect to appellants’ third, fourth and fifth points, it should be obvious that we are of the opinion that appellants acquired no rights under the decision of Camp v. Newsom, 329 S.W.2d 347, or under the judgment of the Juvenile Court of Dallas County, that would transcend the welfare and best interests of the children. The court below must be held to have found that those interests would be best served by permitting the adoption. We find nothing in the record to require a contrary finding or even to suggest a lack of support therefor in the evidence. Hence, appellants’ sixth and seventh points are overruled.

In their eighth point of error appellants recognize the rule that the best interest and welfare of the children are of paramount importance in the decision of cases such as this, but assert that granting the adoption was not in the best interest of the minors because (1) appellee Joseph Camp falsely swore in the petition that he was their grandfather, while in fact he is only a “step-grandfather”; (2) appellees, aged 59 and 45, respectively, are too old to become adoptive parents; (3) the girls were not abandoned, although appellees swore in the petition that they had been; and (4) appellees were actually not bona fide residents of Rockwall County, having purported to move there to avoid the previous ruling of the Juvenile Court of Dallas County that these children were not adoptable unless declared dependent and neglected. These evidentiary matters were all presented to the trial court, who impliedly found, on the only-ultimate issues in the case, that under all the circumstances appellees were suitable persons to become the adoptive parents of these little girls and that such would be in their best interest. There was ample evidence to support such implied findings and we have no authority to disturb them. The eighth point is also overruled.

The judgment appealed from is

Affirmed.

WILLIAMS, J., not sitting.


text:
    CITY OF HOUSTON, Appellant, v. Troy D. ALLEN, Appellee.
    No. 50.
    Court of Civil Appeals of Texas. Tyler.
    June 11, 1964.
    Rehearing Denied July 9, 1964.

      John Wildenthal, Jr., City Atty., and Edgar Pfeil, Senior Asst. City Atty., Houston, for appellant.
    Fermon Tom Walton and Harry Burns, Houston, for appellee.
   SELLERS, Justice.

This is a personal injury suit in which Troy D. Allen, Appellee, was struck from the rear while waiting in his pickup truck with trailer attached to rear of same at a red light in the City of Houston. He was struck by one of the City of Houston garbage trucks, driven by one of its employees by the name of Marion Pusey. The issues were submitted to a jury and resulted in a judgment against the appellant in favor of appellee in the sum of $22,500.00. From this judgment the appellant has prosecuted this appeal.

The city complains of the judgment on the ground that there was no evidence to ■sustain the allegations of negligence relied •upon by appellee; and if so, such findings are against the overwhelming weight and preponderances of the evidence. The city further complains that if there was any negligence on the part of the appellant it was in the exercise of a governmental function for which the city was not as a matter of law liable in damages.

The negligence relied upon by the appel-lee for recovery is that the city was negligent in failing to properly inspect and to adequately repair the brakes on the truck No. 1465 immediately prior to the collision and that such negligence was the proximate cause of the collision.

The city offers no evidence upon the trial of the case, and all issues submitted to the jury were found in favor of the appellee. The evidence relied upon by the appellee as supporting his right to recover are in the main as follows:

The City of Houston maintains its garage in the city for the repair of its many trucks which are operated by the city to collect garbage. In pursuance of such repairs, the city garage sent some three or four of its employees out to the dump grounds from the garage to make repairs as might be made to the trucks out there without having to bring them to the down-town garage. The dump grounds are some 14 miles from the down-town garage.

On the morning of December 28, 1959, Marion Pusey was assigned truck No. 1465, which was in the line of trucks ready for service on that day. As Pusey started to leave out in his truck, another employee advised him to be careful about the brakes as he had driven that truck about three days prior and had a wreck because of the brakes. This truck was an extra truck, used only one or two days a week. Pusey and his crew went out on their route and loaded its truck with garbage and about 11 o’clock started for the dump. His brakes during the morning began to slip, but he made it to the dump, as he was instructed to do by his foreman if he could, and to have his truck repaired there. At the time Pusey unloaded his truck at the dump, he noticed his brake pedal would go almost to the floor of the truck and would not hold. He then reported this condition to one of the mechanics at the dump and waited for the mechanic to make the necessary repairs. This the mechanic did, and Pusey took the truck out on the route for another load. During the afternoon the brakes on the truck were working in fair order. About S o’clock on the samé day, Pusey, with a heavy load, started for the dump. When he approached the intersection where the collision occurred, he was driving at a speed of about 30 miles an hour; in fact, the city trucks have a governor on them which prevents the trucks being driven at a speed in excess of 30 miles an hour. Pusey could see the string of cars in front of him waiting for a red light. When he approached the intersection and applied the brakes, he felt that he had no brakes and that the foot pedal went all the way to the floor board and did not have any effect on the speed of the truck at all. Pusey said he hit appellee’s trailer and truck rather than hit the oncoming cars to his left and to prevent going into a ditch on his right, that he hit the rear of the appellee’s vehicle going at a speed of some 30 miles on hour. The force of the blow killed a cow which the appellee had in the trailer of the truck, knocked the appel-lee’s son out of the pickup and almost knocked appellee from the truck. Appel-lee’s truck was knocked into the car in front of him. The city truck had to be pulled in where repairs were made the next day.

While the foregoing is not all the evidence offered by the appellee, we believe such evidence is sufficient to sustain the trial court’s ruling, that the evidence was sufficient to sustain the jury’s findings of negligence, and that the city was not engaged in a governmental function.

It is seldom that we are able to cite a case in support of our holding on both the facts and the law by the Supreme Court as that of the City of Houston v. Shilling, 150 Tex. 387, 240 S.W.2d 1010, 26 A.L.R.2d 935. In this case a garbage truck of the City of Houston was involved under facts very similar to the facts in the case before this court, and the Supreme Court held the evidence sufficient to sustain the allegations of negligence, and that the city was not engaged in a governmental function.

The appellant challenges the sufficiency of the evidence to support the jury’s verdict in the sum of $22,500.00. We take the following from appellee’s brief, which we find fully supported in the statement of facts:

“Appellee was injured on December 28, 1958, and the trial began on July 15, 1963, more than three and a half years later.
“Appellee’s wife of 25 years testified they were married at Henderson, Texas, up in East Texas, and he followed self-employed construction work all during their married life except for working in the shipyards during the war. During all their married life Appellee’s health had been fine, he had never gotten hurt before and had never made any claim before; he had been in the hospital one time for a minor operation, but was a robust man. She was not present at the accident but went there after it was over and found her husband ‘in pain and misery with his back and head’; she had to drive him home in her car. Before this accident Mr. Allen was supervisor and boss of his own workers, and he climbed up and down ladders and went on roofs getting estimates and never complained of any inability to climb. His physical quickness and agility in getting around were fine. Since the accident Mr. Allen cannot get up or get down, sometimes he can drive his truck but at other times she has to drive for him. He gets suffering spells once or twice a week when his head and back hurt him, and he just has to lie down on the floor almost out. Such spells last the rest of the week, and he hobbles around and walks with a limp.
“Appellee’s son, David Allen, testified as to the force of the collision. It knocked him out of the pickup and on the ground; the trailer was all hent up and the cow riding in the trailer was dying. It was a pretty hard blow. Since the accident Mr. Allen gets back aches and his neck gets stiff.
“Appellee, Troy D. Allen, testified he was 45 years of age, a large-sized man and was born and raised in East Texas. He went to the ninth grade in school and then started following the building trade, and had done physical work all his life. He got in the roofing and building business which he followed until the present; he had never made a claim for personal injuries before and this was his first time in court. Up to the time of this accident his general health has been good and he had not been to see any doctors or chiropractors except for cold shots. He was able to do full-time work at his business before this accident. The accident occurred around 5 :00 P.M. on South Post Oak as he approached the South Main Street intersection. He had stopped behind a line of cars stopped for the traffic light. The accident was a hard lick, knocking his vehicle into the lady ahead of him and knocking his trailer up under his pickup truck; it knocked him about 30 feet with all his wheels sliding as he had set his brakes. He sat in the police car after the wreck when his head commenced hurting, he got dizzy, could not see and his head was just busting. Mrs. Allen drove him home, and he went to bed and got hurting so bad that he had to go to the clinic where Dr. Schiflett gave him some shots and pills. He did not go to work the next day, and it was five or six weeks before he could do anything. His head and back have hurt him from the time of the collision until the present but occassionally he is free of pain when he does not do any physical work whatsoever.
“Before the receipt of his injuries Mr. Allen’s business was fair enough, he was buying new equipment to get larger, was expanding and had 16 or 17 employees. At the time of trial he only had nine employees and has had less since the accident; he could not get •out to keep his work going so he had to lay off some workers, although a fire in 1960 or 1961 also hurt his business. His business now is about fifty to sixty-five per cent of what it was before he got hurt, according to his best estimate. Before his injury he ran his business fully and sometimes had to work with a crew when short-handed. He would climb ladders to roofs and make estimates, but since the accident he just sometimes makes the estimates, because if he climbed a ladder three or four times a day he cannot get out of bed the next day. During the immediate preceding two years prior to his accident his business was grossing between $150,000.00 and $175,000.00 per year; however, after then, his gross income has been much less and in 1962 it was around $60,000.00, but his 1961 fire destroyed his other records. The reason his 1959 income tax return showed a net loss was because he was buying a lot of equipment, sold some at a loss, and had depreciation.
“Appellee further testified that his general health is now bad as compared to before, and his head and back give him trouble, and he only attends to part of his duties compared to before. He is not a lazy type fellow and never lay around the house before, although he has to lie around a lot now. He has been to see numerous doctors and is still under a doctor’s care. He now feels about 60 years of age whereas he felt like 20 before; he has hard hurting pain now in his back, his arms get numb, his head hurts and gets blurry; things he never had before the accident. He was 41 at the time of his injuries and had a life expectancy of approxi.mately 30 years.
“Dr. John Kolaja, an educated, experienced and licensed general medical doctor was called by Appellee. He was the only medical expert to testify in the case. The doctor said that Appellee had been to the clinic before the accident on three occasions for treatment of bronchitis, a bad cold and a bruised knee but had never been there for back, neck or head trouble before the accident. He saw Mr. Allen on December 30, 1959, and got a history of the collision and of Mr. Allen’s complaints. Mr. Allen had pain in the neck at the base of the skull, right shoulder and back, and he was tender in those areas; neurologically his reactions were a little bit slow. The x-rays showed him to have a loss of the normal ‘S’-type curve in the neck and an increased calcification around the vertebra in the neck which indicated arthritic changes in the neck. A blow which jerks the body, head and neck is one of the common causes of the loss of the normal curvature such as Mr. Allen had. The blow received by him would not of itself bring about the arthritis, but it would aggravate his preexisting degenerative arthritis of the bones, which condition could then become painful to an individual who had not suffered any pain before. Other x-rays showed early arthritic changes in the lumbar vertebra. Dr. Kolaja’s diagnosis was a moderate severe neck sprain and contusion of the muscles in the back, which condition would be painful. Mr. Allen’s arthritis, as aggravated by the blow he received, would result in a diminished ability to work. This condition improves at times and permits a person to work some, then the condition increases and becomes disabling again, which is the way it works on Appellee. This disabling condition in Mr. Allen is a permanent condition in reasonable medical probability. The Appellee is still under Dr. Kolaja’s treatment and care. The doctor could tell that his patient’s complaints were justified by the muscle spasm and general motion of moving.”

The evidence is believed to be in all respects sufficient to support the trial court’s judgment in the amount of $22,500.00 in favor of appellee. Mikell et al. v. La Beth, Tex.Civ.App., 344 S.W.2d 702; Gilbert v. Haigler, Tex.Civ.App., 363 S.W.2d 337.

Finding no reversible error in the record, the judgment of the trial court is affirmed.