text:
    PAN AMERICAN PETROLEUM CORPORATION, Appellant, v. Lloyd Russell VINES, Appellee.
    No. 4683.
    Court of Civil Appeals of Texas. Waco.
    Dec. 14, 1967.
    Rehearing Denied Jan. 11, 1968.

      Dean J. Capp, K. M. Nolen, Houston, Strasburger, Price, Kelton, Martin & Unis, Leo J. Hoffman, Dallas, for appellant.
    Wynne & Wynne, B. J. Wynne, Wills Point, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant from a judgment overruling its plea of privilege.

Plaintiff Vines sued defendant Pan American Petroleum Corporation in Van Zandt County, seeking a declaration of the rights of the parties with respect to plaintiff’s mineral interest under a natural gas division order.

Defendant filed its plea of privilege to be sued in Dallas County, the county of its residence. Plaintiff controverted, contending venue in Van Zandt County by virtue of Subdivisions 5, 23 and 27 of Article 1995 Vernon’s Ann.Tex.Civ.St.

After hearing before the court without a jury, the trial court overruled the plea of privilege.

Defendant appeals on 4 points, contending the trial court erred in concluding that venue lies in Van Zandt County under Subdivisions 5, 23 or 27 of Article 1995.

Subdivision 23, Article 1995 provides, among other things, that suits against a private corporation may be brought in the county in which plaintiff resided at the time the cause of action, or part thereof, arose, provided such corporation has an agency or representative in such county.

Subdivision 27, Article 1995, provides among other things that foreign corporations may be sued in any county where the cause of action, or a part thereof, accrued, or in any county where such company may have an agency or representative.

The uncontradicted evidence is that plaintiff Vines resided in Van Zandt County; that defendant Pan American is a foreign corporation; that Billy J. French, who resided in Van Zandt County, was an agent or representative of defendant, and was in charge of all operations of defendant in Van Zandt County, including the producing of wells, the keeping of records, and in charge of defendant’s processing plant in Van Zandt County; and empowered to fire other employees.

Defendant asserts French is not such an agent or representative in Van Zandt County within the meaning of Subdivisions 23 or 27, and contends French is an ordinary employee of defendant, acting exclusively as a plant foreman and concerned only with the mechanical operation of the company’s plant and the keeping of operating records.

The Supreme Court in Milligan v. Southern Express, 151 Tex. 315, 250 S.W.2d 194, construes what is an agent or representative under Articles 23 and 27 for venue purposes as follows:

“Rather, in our opinion, the statute refers to a situation in which the business of the defendant is, in more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of ‘agency’ and the other of ‘representative.’ ”

We think French was an agency or representative of defendant within the meaning of Subdivisions 23 and 27. French’s position was permanent in its character, and the business operated by him was an extensive operation, valuable to defendant, and covered broad powers in carrying on defendant’s business in Van Zandt County. We think the trial court justified in concluding the defendant was doing business in Van Zandt County, and its operations were in charge of its agent and representative, French, who resided in Van Zandt County.

Defendant’s points and contentions as applicable to Subdivisions 23 and 27, Article 1995, are overruled.

Affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Iris Ramsey BREWER et vir, Appellants, v. OTIS ELEVATOR COMPANY, Appellee.
    No. 15088.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Dec. 21, 1967.
    Rehearing Denied Jan. 11, 1968.
    David J. Nagle, Houston, for appellants.
    David Bland, Barrow, Bland & Rehmet, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a suit for damages for personal injuries sustained by Iris Ramsey Brewer when she slipped and fell in an elevator. The principal question involved on appeal concerns the duty of care owed by Otis to the public using the elevators by reason of the fact that Otis exercised some degree of joint control over the elevators.

The suit named as defendants Prudential Insurance Company of America, the owner of the elevator and the building in which it was installed; American Building Maintenance Company, Inc., who had a contract with Prudential to keep the building clean; and Otis Elevator Company, who had a maintenance contract with Prudential to keep the elevators in proper repair. The case was tried to a jury. The trial court instructed a verdict in favor of American. After the jury returned its verdict, but before judgment was entered, the plaintiffs informed the court that the cause had been settled as to Prudential, and thereafter filed among the papers in the cause a settlement agreement reflecting a settlement for the sum of $3,000.00 and an assignment from Prudential to plaintiffs of its rights to indemnity or contribution from Otis. The trial court entered judgment that plaintiffs take nothing, denied Prudential indemnity and contribution, and assessed costs against the plaintiffs. No motion for new trial was filed. The plaintiffs have not appealed the judgment insofar as it decrees that they take nothing against Prudential and American.

Since no motion for new trial was filed plaintiffs are confined on this appeal to their points complaining of the refusal of the trial court to grant their motion for judgment. Abbott v. Earl Hayes Chevrolet Company, 384 S.W.2d 782 (Tex.Civ.App., Tyler, 1964).

In their motion for judgment appellants requested the court to enter judgment dismissing American Building Maintenance Company on all actions and cross-actions, and to further enter judgment for plaintiffs and against Otis Elevator Company for one-half of the damages as found by the jury. Plaintiffs further moved the court to find that Prudential Insurance Company is entitled to indemnity from Otis Elevator Company for the sum of $3,000.-00, paid by Prudential to plaintiffs in settlement. The motion asked that costs be taxed against Otis and that the judgment be substantially in the form attached to the motion. In the attached form there is a paragraph by which the court ordered, adjudged and decreed that plaintiffs recover nothing against the Prudential Insurance Company of America.

Of the issues submitted to the jury only Special Issues 10, 11, 12, 20, and the definition of proximate cause as submitted in connection with Special Issue No. 3, are material to this appeal. They read:

“SPECIAL ISSUE No. 10 — Do you find from a preponderance of the evidence that on the date and on the occasion in question the lighting in Elevator No. 3 was not as bright as that which would have been supplied in the exercise of high degree of care?
To which the Jury answered, ‘It was not as bright.’
“SPECIAL ISSUE No. 11 — Do you find from a preponderance of the evidence that the failure to furnish light as bright as that which would have been furnished in the exercise of high degree of care, if you have so found, was a proximate cause of the Plaintiff’s fall?
“By the term ‘proximate cause’ as used in the foregoing is meant the same proximate cause as that defined in connection with Special Issue No. 3.
To which the Jury answered, ‘We do.’
“SPECIAL ISSUE No. 12 — Do you find from a preponderance of the evidence that on the date and on the occasion in question the lighting in Elevator No. 3 was not as bright as that which would have been supplied in the exercise of ordinary care?
To which the Jury answered, ‘It was as bright.’
“SPECIAL ISSUE No. 20 — Do you find from a preponderance of the evidence that the conduct of Dolly Fulsom was the sole proximate cause of the Plaintiff’s fall?
“By the term ‘sole proximate cause’ as used in this charge is meant the only proximate cause and none other. There can be only one sole proximate cause of an event. By the term sole proximate cause as used in the foregoing Special Issue is meant the same proximate cause as that defined in connection with Special Issue No. 5.
To which the Jury answered, ‘We do.’ ”
“By the term ‘proximate cause’ as used in the foregoing issue, is meant a cause which in a natural and continuous sequence, produces an event and without which the event would not have occurred; and to be a proximate cause of an event it should be reasonably anticipated and foreseen by a very cautious and prudent person exercising a high degree of care that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause of an event.”

The evidence shows that Miss Dolly Fulsom spilled some chili in one of the elevators. She sent word of the incident to the employee of the building in control of the elevators, which were automatic and had no operators. Before the elevator could be taken out of service for cleaning, Mrs. Brewer attempted to enter it, and slipped on the chili and fell.

It is appellants’ contention that by virtue of the contract of maintenance between Otis and Prudential, as well as by the actions of its employees, Otis has undertaken the active management and control of the elevators, and, therefore, has the same duty of exercising a high degree of care for the well-being and safety of passenger-invitees as has Prudential, the owner of the premises. Appellants alleged that Otis had joint control of the elevators with Prudential. They rely strongly on Bond v. Otis Elevator Company, 388 S.W.2d 681 (Tex.1965), wherein the Supreme Court held that the doctrine of res ipsa loquitur applied as against both the Adolphus Tower and Otis Elevator where an elevator went into a free fall injuring a passenger, the evidence conclusively showing joint control of the elevator. In its opinion the Court said:

“We think that the evidence conclusively shows that the elevator was under the joint control of Adolphus Tower and Otis Elevator. A mere reading of that part of the contract quoted above shows this. Otis Elevator says that the contract places the exclusive control in Adol-phus Tower. It points to the last sentence copied above from the contract wherein the agreement states that Otis did not assume possession or management of the equipment, but such remained in the owner, that is, Adolphus Tower. It is true that the Adolphus Tower retained possession and management of the elevators by that contract, but with the understanding that Otis was to examine, lubricate, adjust and if in its judgment conditions warrant, it was to repair or replace all necessary equipment. In other words, what maintenance was required depended upon the judgment of Otis, not that of Adolphus Tower. It would be difficult to imagine a relationship between two parties with reference to certain equipment where joint control is more conclusively shown. The petitioner pleaded joint control and under this evidence we think the trial court was correct in its necessary holding, in support of its judgment, that both parties were in joint control of the elevator in question.”

The contract between Prudential and Otis is the same as the one quoted in Bond v. Otis Elevator Company. We particularly note that the contract obligated Otis to use all reasonable care to maintain the elevator equipment in proper and safe operating condition. Otis agreed to “examine, lubricate, adjust, and if in our judgment, conditions warrant, repair or replace all accessory equipment (by us) with exceptions as stated hereinafter.”

The exceptions, not quoted in Bond, read:

“We shall not be required to make other safety tests nor to install new attachments on the elevators whether or not recommended or directed by insurance companies or by governmental authorities, nor to make any replacements with parts of a different design. It is agreed that we are not required to make renewals or repairs necessitated by reason of negligence or misuse of the equipment or by reason of any other cause beyond our control except ordinary wear and tear.
“We assume no responsibility for the following items of elevator equipment which are not included in this contract:
“Refinishing, repairing or replacement of car enclosure, hoistway enclosure, hoistway doors, door frames and sills.”

As the Supreme Court pointed out in Bond, what maintenance was required depended upon the judgment of Otis. However, Otis, by its contract, undertook to use reasonable care to maintain the elevators in good mechanical condition. It was not required to make safety tests for adequacy of the light in the elevators, to install new or different light fixtures in the elevators, or to replace the light fixtures with which the elevators were equipped with fixtures of a different design. Prudential retained possession and management of the elevators, but Otis had joint control insofar as necessary to the performance of the contract. The contract does not place on Otis responsibility for the design of the lighting system in the elevator. The case was not tried on the theory of breach of express or implied warranties on the part of Otis as the manufacturer or seller of the equipment, nor has that theory been urged on this appeal.

Appellants’ position that Otis has a duty to passengers using the elevators to exercise a high degree of care for their safety, rather than ordinary care, is not sound. The duty to exercise the high degree of care required of Common Carriers is placed on those furnishing elevators for the convenience and use of their invitees. Farmers’ & Mechanics’ Nat. Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120 (1911); Mattox v. C. R. Anthony Company, 326 S.W.2d 740 (Tex.Civ.App., Beaumont, 1959, ref., n. r. e.). The duty of the agent of the operator having control of the elevators for the purpose of maintenance is to exercise ordinary care to maintain them in a condition of reasonable safety for use. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517 (1922); Hunter-Hayes Elevator Company v. Williams, 402 S.W.2d 280 (Tex.Civ.App., Ft. Worth, 1966, ref., n. r. e.); Otis Elevator Company v. Jackson, 325 F.2d 260 (U.S.Ct. of App., Sth Cir.).

The jury made no findings of fact which would have authorized the trial court to enter a judgment in favor of the Brewers against Otis Elevator Company.

Under the construction which we have placed on the contract, we cannot say as a matter of law that Otis breached a duty which it owed to Prudential and, since there are no jury findings of such a breach of duty, the trial court did not err in refusing to allow Prudential either contribution or indemnity against Otis.

The judgment of the Trial Court is affirmed, Associate Justice Peden not participating.


author: McDONALD, Chief Justice.

text:
    Richard McFADDEN, Appellant, v. CECIL RUBY COMPANY, Inc., Appellee.
    No. 4677.
    Court of Civil Appeals of Texas. Waco.
    Dec. 21, 1967.
    Harrison, Curtis & Cooper, John Allen Curtis, Dallas, for appellant.
    Harris, Anderson, Henley, Shields & Rhodes, L. W. Anderson, Dallas, for ap-pellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a summary judgment that plaintiff take nothing in a negligence case.

Plaintiff McFadden sued defendant Ruby Company, alleging defendant Ruby Company failed to remove a curb remnant from the R. L. Thornton Expressway in such a manner as to permit the safe passage of vehicular traffic over the freeway; that the automobile in which plaintiff was a passenger struck the curb remnant, and was caused to turn over, causing injury to plaintiff.

Defendant answered by general denial.

Defendant moved for summary judgment and later filed its second motion for summary judgment, asserting there were no issues of fact raised by the pleadings, evidence, and affidavits on file, or that there is any cause of action alleged or proved against defendant. Defendant further asserted it removed the curb from the freeway pursuant to a contract with the State Highway Department; that such work was performed according to the contract and defendant is accordingly not liable for the result of work performed according to such contract.

The trial court granted summary judgment that plaintiff take nothing.

Plaintiff appeals on 4 points, contending the trial court erred in granting defendant summary judgment because fact issues were presented by the record.

The record reflects that an asphalt curb was built across a portion of the Thornton Freeway to divert traffic while portions of the freeway were still in construction; that the curb was built by a subcontractor which had finished its work a year or so earlier; that on July 6, 1965, just prior to the opening of the Freeway for traffic, the Resident Engineer of the Highway Department requested defendant Ruby Company to remove the curb; that defendant did such to the satisfaction of the Highway Department and the removal complied with Highway Department requirements; that the highway was opened to the public on July 15, 1965.

Plaintiff’s attorney filed affidavit in opposition to motion for summary judgment, in which he testifies the ridge where the curb had been “was very much in evidence and in some places being as much as a ½ of an inch to ⅜ of an inch in height.”

The only evidence as to how the accident happened is from the plaintiff. Plaintiff testified by deposition:

“Q. And where did this happen?
A. On Stemmons Freeway, or R. L. Thornton, whichever one goes to Oak Cliff.
Q. Near what exit was this?
A. Yomen
******
Q. Yarmouth?
A. It could be.
* * * * * *
Q. How did this accident happen?
A. Well, the only thing I can remember about it, we were going along and all of a sudden we felt the damn car jerk and shake and it just jumped over sideways.
******
Q. Do you have any idea what caused the accident?
A. Something rough; we hit something; that’s what it felt like. The car just jumped sideways and it was upon its top.”

In such state of the record, the fact that the curb lacked ½ to ⅝ inch being shaved off to level with the freeway cannot constitute evidence of negligence proximately causing plaintiff’s injuries. The recited testimony is no evidence of defendant’s negligence proximately causing the accident. Plaintiff cannot look to his pleadings to establish defendant’s negligence proximately causing the accident. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948; Molsen v. Compania Industrial, Tex.Civ.App. (nwh) 394 S.W.2d 271.

Plaintiff has at best raised a mere surmise or suspicion of a fact sought to be established, and such is not sufficient to defeat defendant’s motion for summary judgment. Snyder v. Jones, Tex.Civ.App. (nre) 392 S.W.2d 504; Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

Moreover, it is undisputed that defendant performed its work to completion to the satisfaction of the Highway Department. In such situation defendant cannot be liable for the result of its work performed according to its contract. Glade v. Dietert, 156 Tex. 382, 295 S.W.2d 642.

The judgment is correct. Plaintiff’s points and contentions are overruled.

Affirmed.


author: WALTER, Justice.

text:
    MOTORS INSURANCE CORPORATION, Appellant, v. Larry R. FORREST, Appellee.
    No. 4166.
    Court of Civil Appeals of Texas. Eastland.
    July 28, 1967.
    Bradbury, Tippen, Brown, Clement & Cross, Foy Clement, Abilene, for appellant.
    Todd & Quinn, Tom Todd, Abilene, for appellee.
   WALTER, Justice.

Larry R. Forrest recovered a judgment against Motors Insurance Corporation on a policy insuring him against loss of his car “by theft.” The corporation has appealed.

The court directed a verdict against the company on the issue of liability and then submitted the damage issue to the jury. The company contends that the court erred in directing a verdict against it on liability because theft was not conclusively established by the evidence.

While Forrest was out of the city, his brother-in-law, James Tucker, who was living in the Forrest home in Abilene took possession of the automobile in question. He picked up some of his friends and headed for De Leon to visit some friends. The substance of Tucker’s testimony is that he had no felonious intent to steal the car but intended to return it before Forrest returned home. When asked why he did not return the car, he answered “because it just tore up.” It was found where it was abandoned by Tucker and his friends, near Eastland, Texas.

Whether or not theft occurred was a disputed fact issue which should have been submitted to the jury. Our Supreme Court in Hudiburg Chevrolet, Inc. v. Globe Indemnity Company, 394 S.W.2d 792, (1965) said:

“ ‘Theft’ when used in an insurance policy, as it was in Policy B, is given the same meaning it has under the criminal law.”

In Maryland Casualty Company v. Morua, 180 S.W.2d 194, (Tex.Civ.App., 1944, writ ref.) the court said:

“If an issue of fact is raised by the evidence, it must go to the jury even though a verdict based on such evidence would have to be set aside as not supported by sufficient evidence. Wallace v. Southern Cotton-Oil Co., 91 Tex. 18, 40 S.W. 399.”

The judgment is reversed and the cause is remanded.


author: DIXON, Chief Justice.

text:
    PROCTER & GAMBLE MANUFACTURING COMPANY et al., Appellants, v. Virginia LANGLEY et al., Appellees.
    No. 16971.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 10, 1967.
    Rehearing Denied Dee. 29, 1967.

      James A. Williams, of Bailey, Williams, Weber & Allums, Dallas, for appellants.
    Joann Peters, of Welz, Anderson, Rogers & Peters, Dallas, for appellees.
   DIXON, Chief Justice.

This is a products liability case. Ap-pellees Virginia Langley and husband, Willis Langley, sued appellants Procter & Gamble Manufacturing Company, Procter & Gamble Distributing Company and Tom Thumb Stores, Inc. for damages alleged to have resulted from the use by Mrs. Langley of home permanent hair wave products called “Milk Wave Lilt.” Appellees allege that the three appellants are respectively the manufacturer, the wholesale distributor and the retail seller of the products.

In their pleadings appellees allege specifically that appellants Procter & Gamble Manufacturing Company and Procter & Gamble Distributing Company impliedly warranted that Milk Wave Lilt was fit for home permanent hair waving, was wholesome and noninjurious and did not contain any harmful substance. No such allegations were directed specifically at appellant Tom Thumb Stores, Inc., but it was alleged generally that the product was not fit for use “as warranted by defendants.”

A jury made findings that (1) Virginia Langley purchased from Tom Thumb Stores, Inc. a box of “New Milk Wave Lilt Home Permanent” preparation, (2) which preparation she applied; (3) she lost hair from her head following such application; (4) the product was a proximate cause of such loss of hair; (5) the product was unmerchantable and unfit for the purpose for which it was intended; (6) Virginia Langley failed to make a 10 minute test curl to see if her hair could take a wave before applying the product; (7) but such failure was not negligence; (9) during the application of the product the strands of hair felt sticky and gummy; (10) after her hair felt sticky and gummy, she failed to use liquid neutralizer at once; (11) but such failure was not negligence; (13) she waved more hair after feeling strands of hair which were sticky and gummy; (14) but such act was not negligence.

Appellants filed motions for instructed verdict, for judgment non obstante vere-dicto, and for the court to disregard certain issues. These motions were overruled. Judgment was rendered in favor of appel-lees for $5,549.25, the amount of damages found by the jury.

EVIDENCE

1. Mrs. Langley’s Testimony.

Virginia Langley testified that she purchased the boxed package of home permanent wave products after watching a television commercial advertising them. In her home, after mixing the powder product with milk, she applied the preparation to her hair and almost immediately her hair started coming out. It did not come out from the roots, but broke off some distance from her scalp, with the result that her hair, which has been shoulder length and in good condition, was very short, brittle and otherwise in very poor condition, lacking its former luster, etc. Her hair continued to come out for some time and required a year to grow back. Meantime she purchased a wig for $89.00, as her hair was too unsightly to be seen by the public in performing her duties as a waitress.

Mrs. Langley testified that she had in previous years given herself four home permanent waves without ill effects and had given herself one home permanent without ill effects since her experience with appellants’ products.

Mrs. Langley did not keep or save any of the hair waving products which she claims in this instance damaged her hair. She disposed of them by throwing them away without having an analysis of them made.

On the outside of the carton in which the products were packaged were the words “FOR ANY TYPE OF HAIR.” However, in an accompanying pamphlet were the following explicit instructions and warnings:

“BEFORE YOU START
* * * * * *
“Remember — you shouldn’t use any permanent, unless your hair is in good condition. So, a few reminders.
******
“3. If your hair is bleached, tinted or color-treated in any way or if it is in delicate condition (dry, brittle, breaking off, etc.) make test curls to see if your hair can take a wave. * * * If at any time, these strands feel sticky or gummy, use the liquid neutralizer at once and do not wave any more of your hair. If no gumminess occurs, but if your test curls, when dry, are frizzy, discolored, break easily or show any other signs of hair damage, this also means that you should not wave the rest of your hair.
******
“3. TIMING
Leave hair in curlers 10 minutes.
Rinse wound curls with comfortably hot water.
Wait 30 minutes.” (Emphasis ours.)

The pamphlet contained these additional warnings:

"1. Keep waving powder (and when mixed, waving lotion) and liquid neutralizer out of eyes, ears, nose and mouth and off your face and neck. (Keep out of reach of children also.) * * * If any waving powder, waving lotion or liquid neutralizer does get in your eyes, ears, nose or mouth or on your face or neck, rinse it away immediately with clear water. If you spill any waving powder, waving lotion or liquid neutralizer on clothes or furniture, rinse this also with clear water.”

Mrs. Langley testified that she read the above instructions and warnings. She understood that the instruction and warning in regard to the strands of hair being sticky meant “Just what it says.”

However, her own testimony shows beyond dispute that she failed to follow but violated the above instructions in the following particulars:

(1) Her hair had been tinted some time in the preceding month of August, so she did make a test curl; but she left the lotion on for only four, not for ten minutes, before checking to see if the test was all right.

(2) At the end of four minutes she found the test curl was sticky; nevertheless she did not follow the direction that “If at any time these strands feel sticky or gummy use the liquid neutralizer at once and do not wave any more of your hair.” (Emphasis ours.) To the contrary, she did not use the “neutralizer at once,” but proceeded immediately to apply the lotion to the rest of her hair.

(3) Then she left the lotion on her hair for twenty minutes — twice the time stated in the instructions.

2. Medical Evidence.

Dr. Robert N. Machen, a physician and surgeon and Mrs. Langley’s family physician, testified that he had treated her and prescribed medicines for her on a number of occasions between March and October of 1963, including two surgical operations under general anesthetics. So far as he knew her hair had been in good condition prior to October 1963. Mrs. Langley went to see Dr. Machen in October about her hair after it began to break off. He did not undertake to treat her for this condition, but referred her to Dr. John L. Kestel, Jr., a dermatologist.

Dr. John L. Kestel, Jr., the dermatologist to whom Mrs. Langley was referred, testified by deposition. His written medical report was introduced in evidence. It is as follows:

“HISTORY On Oct. 12, 1963 she gave herself a milk wave Lilt Permanent. Since then she has experienced hair loss. There has been some itching present since but she does not recall marked redness, scaling, on the edges of the scalp or forehead. Last time tint on hair was August 1963. She had a D. and C. (general anaesthetic) in June 1963 and Hemorrhoid operation in August or Sept. 1963 (general Anaesthetic). She used plastic rollers when had permanent: not used nylon rollers at all. Patch tested ahead of time for 12 minutes with no reaction.
“DESCRIPTION No noted hair thinning. Scalp appears normal. The distal ¾ of all the scalp hairs are light red-blonde color, dry, loss of luster, brittle and broken off. No club hairs seen.
“DIAGNOSIS Change in hair character from outside chemical or influence.”

Mrs. Langley’s medical bills amounted to $5.00 paid to Dr. Machen and $15.00 to Dr. Kestel.

3. Mrs. Krumdieck’s Testimony.

Mrs. Doris Krumdíeck, a teacher of cosmetology at Flatt’s Beauty College, was a witness in behalf of appellees. Mrs. Krum-dieck was positive in her disapproval of any and all home permanent treatments. She had never given a home permanent treatment. She knew nothing about Milk Wave Lilt. She had never examined the product and did not know the chemical content of its ingredients. She testified that a solution containing thioglycolic acid, used by professional beauticians in giving permanent hair waves, could be harmful if used to excess. She did not know whether Milk Wave Lilt contained any such acid.

There is no testimony that Milk Wave Lilt contains thioglycolic acid. Appellants without avail objected to Mrs. Krumdieck’s testimony. There is testimony that Milk Wave Lilt contains thioglycolate, an alkali, but no testimony that it contains thioglycolic acid.

4. Testimony of A. R. Thomas.

A. R. Thomas, a chemical engineer, is manager of the hair care and new products section of the Products Research Department of Procter & Gamble Company. He testified that the basic chemical systems of Milk Wave Lilt were under investigation for six or seven years and the product itself for two or three years before being put on the market. It was tested on the hair of 1,000 to 1,500 women. The powder used is a combination of potassium thiogly-colate and a material called THAM. It is an alkaline, not an acid solution. The neutralizer consists of a 1.3% solution of hydrogen peroxide with a small amount of preservative. According to Thomas the products are harmless. He testified that Milk Wave Lilt has been marketed since 1962 with sales amounting to between four and five million units and only thirty or thirty-five complaints of hair breakage.

Mr. Thomas at one point in his testimony stated that the powder mixed with milk produced a sticky lotion. A few questions later in his testimony he stated that the mixture was not sticky.

OPINION

Two recent cases, decided by our Supreme Court while this appeal was pending before this court, require our attention.

In L. A. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967), a case involving a permanent hair waving product, the doctrine of strict liability was held to be applicable to defective products which cause physical harm to persons. The doctrine had already been adopted so far as concerned foodstuffs for human consumption. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942). In McKisson the court quoted with approval the rule of strict liability as stated in Section 402A of the American Law Institute’s Restatement of the Law of Torts (2d Ed.) and also Comments (a) and (n) under Section 402A.

In the McKisson case it was held that Mrs. McKisson may have been at fault in not discovering that the product was unsuitable for bleached hair (a jury so held) ; but that “This species of contributory negligence is not a defense to strict liability.” The court also held that privity of contract is not a requirement in strict liability cases.

Shamrock Fuel & Oil Sales Co., Inc. v. Tunks, 416 S.W.2d 779 (Tex.Sup.1967), was a mandamus case involving questions of products liability. It was held that as a general rule contributory negligence is not a defense to strict liability; but that contributory negligence is a defense when it consists of a voluntary and unreasonable proceeding to encounter a known danger,' as for example in assumed risk and volenti non fit injuria. The court declined to pass on the question whether “improper use” is also a defense, or if allowable, is part of a plaintiff’s action.

In their first three points on appeal appellants attack the jury finding in answer to Special Issue No. 5 to the effect that New Milk Wave Lilt Home Permanent preparation used by Mrs. Langley was unmerchantable and unfit for the purpose for which it was intended. Appellants say there was no evidence, or there was insufficient evidence, to support the jury’s finding. We agree with appellants.

At the outset we are faced with the fact that Mrs. Langley disposed of all the Milk Wave Lilt products she did not use without having them chemically analyzed. Consequently there was not and could not be any direct testimony that the particular products she purchased were in any way defective or harmful if properly used. Neither do the circumstances constitute evidence to that effect.

We are aware of the statement in the Mc-Kisson case: “When it is shown that the product involved comes in a sealed container, it, is inferable that the product reached the consumer without substantial change in the condition in which it was sold.” Mrs. Langley testified that when she bought the powder and neutralizer they were in sealed bottles. She also testified (the testimony of Thomas is inconsistent on the question) that the mixture of powder and milk was sticky. But there is no evidence that it is a defect in the lotion itself for it to be sticky before its application to the user’s hair.

The law which we believe to be applicable in this case is stated in Section 402A, Comment (g) of the' Restatement of the Law of Torts (2d Ed.) where, speaking of strict liability it is said:

“The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.”

See also Corneliuson v. Arthur Drug Stores, Inc., 153 Conn. 134, 214 A.2d 676 (1965) and Rexall Drug Co. v. Nihill, 276 F.2d 637, 79 A.L.R.2d 419 (9th Cir. 1960); Prosser, “The Fall of the Citadel”, 50 Minn. Law Rev. 791 (1966), reprinted in Schreiber and Rheingold, “Products Liability”, page 2.50. We find no evidence that the Milk Wave Lilt purchased and used by Mrs. Langley was in defective condition at the time it left the hands of the seller, Tom Thumb Stores, Inc. Appellants’ first point is sustained.

If we be mistaken in the above conclusions we are nevertheless convinced that the jury’s finding as to unmerchantability and unfitness is so contrary to the great weight and preponderance of the credible testimony as to be manifestly wrong. Appellants’ second and third points are therefore sustained.

In their fourth and fifth points appellants assert that it was error for the court to render judgment for Mrs. Langley since she failed to comply with the printed instructions for the use of the wave products. We agree with appellants. In this opinion under the heading “EVIDENCE, 1. Mrs. Langley’s Testimony” we enumerated the particulars in which Mrs. Langley beyond dispute failed to follow instructions, or to heed the printed warnings for the use of the products in question. They need not be repeated here. We are of the opinion that Mrs. Langley’s violation of the plain instructions and warnings was a misuse of Milk Wave Lilt and constitutes a defense to her cause of action. This seems to be especially true when as in this case the user testifies that she read the instruction in regard to sticky strands of hair after a ten minute test curl and that she understood the instruction to mean “just what it says.”

The law of strict liability applicable to this situation we believe to be correctly stated in the Restatement of the Law of Torts (2d Ed.), Section 402A, Comment (j):

“Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”

See also Matthias v. Lehn & Fink Products Corp., 424 P.2d 284 (Wash.1967); Pinto v. Clairol, Inc., 324 F.2d 608 (6th Cir. 1963); Arata v. Tonegato, 152 Cal.App.2d 837, 314 P.2d 130 (1957); Taylor v. Jacobson, 336 Mass. 709, 147 N.E.2d 770 (1958); Prosser, “The Fall of the Citadel”, 50 Minn.Law Rev. 791, reprinted in Schreiber and Rheingold, “Products Liability”, page 2.35; Hursh, “Products Liability Supplement”, Sec. 5A:12.

In their sixth, seventh and eighth points appellants contend that there is no evidence, or there is insufficient evidence to support the jury’s finding that the Milk Wave Lilt preparation which Mrs. Langley applied on October 23, 1963 was a proximate cause of the loss of her hair. Again we agree with appellants.

Proximate cause is not to be presumed. It must be proved by evidence. As a general rule the fact that injury follows the use of the product is not of itself alone a basis for a finding of proximate cause. Patterson v. George H. Weyer, Inc., 189 Kan. 501, 370 P.2d 116 (1962); Hurley v. Beech Aircraft Corp., 355 F.2d 517 (7th Cir. 1966); Green v. Ralston Purina Co., 376 S.W.2d 119 (Mo.Sup.1964); Cudmofe v. Richardson-Merrell, Inc., 398 S.W.2d 640 (Tex.Civ.App., Dallas 1966, writ ref’d n. r. e.); Watson v. Borg-Warner Corp., 190 Tenn. 209, 228 S.W.2d 1011 (1950); Stewart v. Martin, 353 Mo. 1, 181 S.W.2d 657 (1944); Safeway Stores, Inc. v. Fuller, 189 Okl. 556, 118 P.2d 649 (1941); Kapp v. Bob Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962); China Doll Restaurant, Inc. v. MacDonald, D.C.Mun.App., 180 A.2d 503 (1962); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965); Wade, “Strict Tort Liability”, 19 S.W.Law Jour. 13 (March 1965); Prosser, “The Fall of the Citadel”, 50 Minn.Law Rev. 791, reprinted in Schreiber and Rheingold, “Products Liability”, page 2.50.

There are cases which at first glance might seem contrary to the above holding, but as we understand them they are not so; for they are based on the premise that the product was first proved to be contaminated, or that it contained a harmful ingredient. That fact being established, an inference of proximate cause' may arise under some circumstances from the fact that injury followed the use of the product. Benjamin v. Hot Shoppes, Inc., D.C.Mun.App., 185 A.2d 512 (1962); Gilbert v. John Gendusa Bakery, Inc., La.App., 144 So.2d 760 (1962); Braun v. Roux Distributing Co., Inc., 312 S.W.2d 758 (Mo.Sup.1958); Bundy v. Ey-Teb, Inc., 160 Misc. 325, 289 N.Y.S. 905, 248 App.Div. 596, 288 N.Y.S. 1078. But that is not the situation here.

There is no evidence, direct or circumstantial, that the particular products sold to Mrs. Langley and used by her were harmful if used properly. That the product was defective or harmful is a prerequisite to proximate cause under the strict liability rule. Hill v. Harbor Steel and Supply Corp., 374 Mich. 194, 132 N.W.2d 54 (1965); Swain v. Boeing Airplane Co., 2 Cir., 337 F.2d 940 (1964), cert. den. 380 U.S. 951, 85 S.Ct. 1083, 13 L.Ed.2d 969 (1965); Shramek v. General Motors Corp., 69 Ill.App.2d 72, 216 N.E.2d 244 (1966); Hursh, “Products Liability Supplement”, Sections 1:3, 5A:11.

Appellants’ sixth, seventh and eighth points are sustained.

In their ninth and tenth points appellants assail the - judgment against Tom Thumb Stores, Inc., the retailer who sold the products in question to Mrs. Langley— the basis for the attack being that appellees neither pleaded nor proved warranty, express or implied, or any duty to appellees. We do not agree. We have concluded that the judgment against Tom Thumb Stores, Inc., must be reversed on other grounds, but not on the grounds above asserted by appellants. The ninth and tenth points are overruled.

Appellants’ eleventh point seeks to absolve Procter & Gamble Manufacturing Company and Procter & Gamble Distributing Company because there was no evidence of privity between the two companies and appellees. On authority of the McKisson case, hereinbefore discussed, we overrule the eleventh point.

In their twelfth point the two Procter and Gamble Companies contend that there was no evidence of breach of warranty by them. We agree. This phase of the case is adequately covered in our discussion under appellants’ first and second points and need not be repeated here. The twelfth point is sustained.

In their thirteenth to eighteenth points inclusive appellants say that the court erred in several specified instances in admitting over appellants’ objection to testimony by Mrs. Krumdieck. We think these points are well taken and they are sustained.

Because of our sustaining of appellants’ first, fourth, fifth, sixth and twelfth points we are of the opinion that the judgment of the trial court should be reversed and rendered to the effect that appellees take nothing by their suit against appellants.

Accordingly, the judgment is so reversed and rendered.

ON REHEARING

Appellees on rehearing say that we have usurped the functions of the jury by substituting our findings for the findings of the jury. We have again reviewed the record in this case, but have concluded that we must adhere to our original decision.

Appellees say that the uncontrovert-ed testimony is that the solution itself when originally mixed before applying to the hair, was sticky. Even if true that is not the test. The instructions and warnings are unambiguous and explicit. If the hair has been tinted in any way (and Mrs. Langley’s hair had been tinted) a test curl should be made. The test comes after the solution has been applied and the test curl allowed to remain in the rollers for ten minutes. Then if the test hair (not the solution itself) feels sticky the liquid neutralizer should be used at once and the rest of the hair should not be waved.

Mrs. Langley herself testified that she read the instructions and warnings and understood them to mean just what they say. Yet she chose to ignore them in the several particulars, which we detailed in our original opinion.

As to merchantability appellees rely on the general rule that chemical proof that a product is defective is not required — the defective condition of the product may be shown by circumstantial evidence. We do not disagree with appellees’ statement as an abstract proposition of law. But it is not applicable here. If Mrs. Langley had faithfully complied with the written instructions and heeded the written warnings and had nevertheless sustained injury the situation would be different. But no such situation is presented to us.

We do not believe that the strict liability doctrine means that under circumstances such as we have here a consumer may knowingly violate the plain, unambiguous instructions and ignore the warnings, then hold the makers, distributors and sellers of a product liable in the face of the obvious misuse of the product.

Appellees brought their suit on the theory of implied warranty. We agree that the product carried an implied warranty of fitness, but such warranty existed only if the product was used in accordance with directions. The implied warranty did not apply when the product was misused, as it indisputably was in this case.

The McKisson and the Shamrock Fuel & Oil Sales Company cases, relied on by ap-pellees, did not involve a violation of instructions. In fact in the McKisson case no instructions were furnished. In the Shamrock case an adulterated product was involved. In our opinion both of the above cases are distinguishable from this case.

The motion for rehearing is overruled.

      . The package or kit purchased by Mrs. Langley included a bottle of powder, papers for curling the hair, a bottle of neutralizer and a pamphlet of instructions and warnings. The lotion for curling was prepared by the user by mixing the powder with ordinary milk, a bottle for that purpose being included in the kit.

      . Questions of contributory negligence in this case were submitted to the jury and found favorably to Mrs. Langley. Since we have concluded that the judgment here must be reversed on other grounds we shall not pass on the question of contributory negligence in this case.


author: COLLINGS, Justice.

text:
    ST. LOUIS SOUTHWESTERN RAILWAY COMPANY OF TEXAS et al., Appellants, v. CITY OF TYLER et al., Appellees.
    No. 4204.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 15, 1967.
    Rehearing Denied Jan. 12, 1968.
    See also, Tex., 405 S.W.2d 330.

      Ramey, Brelsford, Flock & Devereux, Jack W. Flock, Michael A. Hatched, Tyler, Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case, Jack Pew, Jr., Dallas, Baker, Botts, Shepherd & Coates, Tom M. Davis, Houston, Clyde W. Fiddes and Roy P. Cosper, Tyler, for appellants.
    Troy Smith, City Atty., H. L. McGee, Jr., Fred V. Hughes, Jack Norwood, Tyler, for appellees.
   COLLINGS, Justice.

This is an appeal from a judgment of the District Court of Smith County overruling and denying the motion of appellants to vacate, modify or suspend an injunction issued by the said court in the same numbered cause in 1906. The injunction required the St. Louis Southwestern Railway Company of Texas to perpetually keep and maintain its general offices and machine shops within the City of Tyler.

The injunction in question is the result of litigation which began in 1902. In that year the City of Tyler, Johanna Pabst, W. H. Cousins and Sue Cousins brought cause number 5314 in the District Court of Smith County to enjoin the St. Louis Southwestern Railway Company of Texas, (hereafter called the Texas Railroad), from moving its general offices and machine shops from Tyler. The basis of that suit was a contract by which the Texas Railroad, in 1891, agreed to perpetually maintain its general offices and machine shops in Tyler and Article 4367, Texas Revised Civil Statutes 1895 which provided, in effect, that every railroad company owning or operating any line of railway within this State should keep and maintain permanently its general offices within the State of Texas and keep and maintain their machine shops and roundhouses at such place or places as they may have contracted to keep them.

An injunction was issued concurrently with the filing of the suit on April 20th, 1902 but, when the case was tried on the merits, judgment was rendered dissolving the injunction. This judgment was affirmed by the Court of Civil Appeals, (87 S.W. 238). On appeal to the Supreme Court the judgments of the District Court and Court of Civil Appeals were, in 1906, reversed and judgment was rendered by the Supreme Court granting a permanent injunction, which judgment the court declared should have been rendered by the lower courts. See City of Tyler v. St. Louis Southwestern Ry. Company of Texas, 99 Texas 491, 91 S.W. 1. The injunction decreed :

“ * * * that said St. Louis Southwestern Railway Company of Texas shall keep and maintain in said City of Tyler, Smith County, Texas, its General Offices and shall keep and maintain in said City of Tyler its machine shop for its main line: And it is further ordered, adjudged and decreed that the injunction by the judge of the District Court of Smith County, Texas, heretofore granted on to-wit: April 20th, 1902, enjoining and restraining said Defendant in error, St. Louis Southwestern Railway Company of Texas, from removing its General Offices from said City of Tyler, in Smith County, Texas, be and the same is hereby perpetuated * * * ”

In 1920, the Congress of the United States passed the Transportation Act of 1920, codified under Title 49 of the United States Code • Annotated. It established a uniform system of Federal control and regulation of common carriers engaged in Interstate Commerce and delegated to the Interstate Commerce Commission authority to administer the act. One of the duties conferred on the Commission by Sec. 5(2) of the act was to determine the matter of the approval of any proposed lease of the properties of one common carrier to another, upon terms and conditions which it found “to be just and reasonable.” The act also relieved carriers who were parties to such an approved transaction, of certain legal restraints. In 1940 Congress strengthened the power and authority of the Commission in such matters by declaring that its authority was “exclusive and plenary.” Since the 1940 amendment the material portion of 49 U.S.C.A. Sec. 5 provides as follows:

“§ 5, par. (2). Unifications, mergers, and acquisitions of control.
“(a) It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b) of this paragraph—
“(i) * * * for * * * two or more carriers jointly, to purchase, lease, or contract to operate the properties, or any part thereof, of another; * * *.
“(b) * * * If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed transaction is within the scope of subdivision (a) of this paragraph and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and condition, and with the modifications, so found to be just and reasonable: * * • *.
“§ 5, par. (11). Plenary nature of authority under section. The authority conferred by this section shall be exclusive and plenary * * * and any carriers * * * and any other persons, participating in a transaction approved or authorized under the provisions of this section shall be and they are relieved from the operation of the antitrust laws and of all other restraints, limitations, and prohibitions of law, Federal, State, or municipal, insofar as may be necessary to enable them to carry into effect the transaction so approved or provided for in accordance with the terms and conditions, if any, imposed by the Commission * *

In 1953, the St. Louis Southwestern Railway Company of Missouri, (hereinafter called the Missouri Railroad), filed an application under Sec. 5(2) of the act to lease and operate all the properties of the Texas Railroad. The Missouri Railroad obtained the approval of the Interstate Commerce Commission of a lease which provided that the two companies were released from any obligation to maintain shops and offices at any particular place on any of the lines of the Texas Railroad. The order of the Interstate Commerce Commission approving the lease was made on December 18, 1953 and includes the following language:

* * * The record is clear that it would be imprudent for the applicant to lease the properties of the Texas company if the effect would be to subject the entire system operations to the requirements of Texas laws and thus prevent it from carrying on its business and locating its offices in a manner most consistent with operating economy and efficiency. Compliance with the State and municipal laws and contracts as shown herein would hinder economy and efficiency in operation and service to the public and thereby impose an undue burden upon interstate commerce.’1 (Emphasis ours)

In connection with its order the Commission made the following findings:

“1. That the proposed lease, and the unification of operations resulting therefrom, will produce substantial economies and promote the efficiency of the applicant’s system operations without adverse effect upon the public or other carriers.
2. That the laws of Texas and agreement with the City of Tyler pertaining to maintenance within Tyler or elsewhere in Texas of public and general offices, machine shops, roundhouses or other facilities, have no necessary relation to economy and efficiency in operation or service to the public, but on the contrary would hinder such operation and service and thereby impose an undue burden upon the unified operations and upon interstate commerce.”

In May of 1965, the Missouri Railroad announced its intention to coordinate and combine certain departments by moving its treasurer, some engineering personnel, and certain other employees, to locations other than Tyler. As a result the City of Tyler applied to the District Court of Smith County for a contempt citation against the railroad and its officers.

In February of 1966, the Texas Railroad filed in the Supreme Court of Texas a motion seeking an order vacating, modifying or suspending the original 1906 injunction judgment on the basis of changed conditions of both law and fact. After this motion was filed, the Tyler City Commission passed a resolution requesting its city attorney to dismiss the contempt proceedings filed by the city and expressing the city’s desire not to contest the motion filed by the railroad in the Supreme Court to modify and vacate the 1906 injunction. The Supreme Court held that it did not have jurisdiction to grant the relief requested by the Railroad Company, but that the District Court which granted the original injunction did have such jurisdiction, and that its action pursuant thereto would be subject to appellate review. (Tex., 405 S.W.2d 330).

Thereafter in accordance with the Supreme Court’s holding, appellants filed a motion in the original injunction cause in the District Court of Smith County in number 5414 to vacate, modify or suspend the injunction. It is from the action of the court denying such motion that this appeal is taken. In connection with the rendition of the judgment appealed from, the trial court filed the following conclusions of law:

“1. I conclude that the Court has jurisdiction over all the parties named as Plaintiffs, intervenors, and Defendants herein, and that all parties necessary to a decision of this matter are before the Court.
2. The Contract in question reported in [99 Tex. 491] 91 S.W. 1 is still in full force and effect and valid and binding upon the railway.
3. The Interstate Commerce Commission cannot legally authorize the railway to violate its contractual obligations as set out in such contract.
4. The statutes (Transportation Act) authorizing the Interstate Commerce Commission to act do not authorize the Commission to deprive the Contract holders under such contract of their contractual rights, or to impair their contractual rights, or impair the obligations of their contract, and, hence the Commission’s action and order of December 12, 1953 with reference to removal of the shops and other facilities, being contrary to the terms of such Contract, were not authorized, and are void.
5. I conclude that, as a matter of law, the Interstate Commerce Commission was without authority by its report and order of December 12, 1953, to suspend, annul, vacate, or set aside the injunction of the Supreme Court of Texas issued in 1906 and reported in [99 Tex. 491] 91 S.W. 1.”

In several points, appellants contend that the court erred in refusing to vacate, modify or suspend the 1906 injunction because (1) the Transportation Act passed by Congress in 1920 gave the Interstate Commerce Commission exclusive and plenary power in approving leases between railroads to impose such conditions as it deems to be in the public interest, (2) the Interstate Commerce Commission in the exercise of the powers committed to it by Congress has by its order relieved appellants of any statutory or contractual obligation to maintain offices and shops in Tyler, and (3) that the order of the Commission is superior to such statutory and contractual obligation and the injunction issued in support of and based thereon. These points are sustained.

The 1953 order of the Interstate Commerce Commission, by its terms, relieved appellants from any obligation to maintain general offices and shops at Tyler. It superseded the contract here involved and the 1906 injunction. Appellee contends, and the trial court held, that the transportation act of 1920 and amendments thereto did not authorize the commission to impair the obligations of a contract; that the 1891 contract by which appellant Texas Railroad agreed to maintain its general offices and shops at Tyler and the 1906 state court injunction in support thereof are superior to the conflicting order of the Commission. The court therefore held that the order of the Commission was void. Appellees’ contentions and the holding of the court in this respect are not well taken.

Article 1, Section 8 of the Constitution of the United States grants to Congress "* * * Power * * * To regulate Commerce * * * among the several States.” It is held that the power of Congress to regulate commerce is supreme and that such an act by the congress displaces and supersedes any conflicting state laws or regulations. Gibbons v. Ogden, 9 Wheat, 1, 22 U.S. 1, 6 L.Ed. 23 (1824); Simpson v. South Western Railroad Company, 231 F.2d 59, (5 Cir.1956), cert. den., 352 U.S. 828, 77 S.Ct. 41, 1 L.Ed.2d 50 (1956); Schwabacher v. United States, 334 U.S. 182, 68 S.Ct. 958, 92 L.Ed. 1305 (1948); Railroad Commission of Texas v. Querner, 150 Tex. 490, 242 S.W.2d 166 (1951).

Contrary to appellees’ contention and the holding of the trial court the Interstate Commerce Commission has the power under the transportation act of 1920 and amendments thereto to relieve railroads from the operation of private contracts if it deems such action to be in the public interest. In State of Texas v. United States, 292 U.S. 522, 54 S.Ct. 819, 78 L.Ed. 1402 (1934), it was held by the Supreme Court of the United States that “even explicit charter provisions must yield to the paramount regulatory power of the Congress.” Charter provisions obligating a railroad to maintain offices in a state or at a stated place therein, to continue operation of an interstate railroad line or to limit the fare to a specified charge per mile are actually contractual obligations. It is held that such contractual obligations of a railroad with a state municipality or an individual are made subject to the possibility that “Congress might so exert its whole constitutional power in regulating interstate commerce as to render that agreement unenforceable, or to impair its value.” Louisville & Nashville Railroad Company v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297 (1911); State of New York v. United States, 257 U.S. 591, 42 S.Ct. 239, 66 L.Ed. 385 (1922); State of Colorado v. United States, 271 U.S. 153, 46 S.Ct. 452, 70 L.Ed. 878 (1926); State of Texas v. United States, supra; Meachem v. Louisville and Nashville Railroad Co., 293 Ky. 642, 169 S.W.2d 830 (1943); Kent v. Civil Aeronautics Board, 204 F.2d 263 (2 Cir., 1953), cert. den. 346 U.S. 826, 74 S.Ct. 46, 98 L.Ed. 351 (1953).

Prior court injunctions are likewise subject to the power of Congress to regulate interstate commerce where the public interest is involved. State of Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855); System Federation No. 91, etc. v. Wright, 364 U.S. 642, 81 S.Ct. 386, 5 L.Ed.2d 349 (1961); Mosel v. San Antonio & A. P. Ry. Co., 249 S.W. 893, (CCA 1923, no writ history).

In the instant case the Interstate Commerce Commission after due hearing determined that the provisions of the proposed lease between appellant railroads were just and reasonable and consistent with public interest; that compliance with the 1891 contract and the 1906 injunction would hinder economy and efficiency and operation and service to the public and thereby impose an undue burden upon Interstate Commerce. Under these facts the Commission had the power and authority under the transportation act to relieve the railroads from the obligations of the contract to maintain its general offices and shops in Tyler, and to set aside the 1906 injunction. The order of the Commission to that effect was not void. The judgment of the trial court was based, solely, upon its erroneous holding that such order was void and the court therefore erred in rendering the judgment it did. Appellants’ first 4 points are sustained. Based upon its findings the court should have rendered judgment vacating and suspending the 1906 judgment. The judgment should, therefore, be reversed and judgment rendered for appellants.

Appellants in other points contend that the court erred in refusing to vacate the injunction on the basis of changed conditions since 1906, including the order of the Interstate Commerce Commission and the conduct of the City of Tyler with reference thereto, as a result of which appellants were induced to act and did act on the belief that they were freed from the restraints of the injunction and contract. We agree with this contention.

Appellees urge that the court correctly denied the relief sought by appellants because under the facts and circumstances shown the principles of equity do not entitle appellants to such relief. This contention is not well taken. The trial court found against appellees on the question of the equities involved and filed the following conclusion of law:

“6. Following the case of City of Tyler et al v. St. Louis Southwestern Railway Company of Texas et al, 405 S.W.2d 330 (Supreme Court 1966) and the holdings therein, I conclude that, if the Interstate Commerce Commission had the legal right to enter its report and order herein, and if such order effectively authorized the lease entered into by the railways, then the facts and circumstances of this case would authorize this trial court, as a matter of equity, to modify or vacate, or set aside the permanent injunction entered in 1906, because of changed conditions.”

The lease in question, which was approved by the Interstate Commerce Commission, specifically provided for relief from any obligation created by the contract requiring appellants to maintain offices and machine shops at any particular location. The City Attorney of Tyler was furnished a copy of this lease and the evidence indicates that all of the City Commissioners had knowledge thereof. One of the Tyler City Commissioners and various civic organizations of the City urged the Interstate Commerce Commission to approve the lease. All of these recognized that the Railroad was seeking relief from the contract and from the 1906 injunction. The order and report of the Interstate Commerce Commission was likewise public information’ in the City of Tyler. It expressly provided for relief from the contract in question, and there is no basis for the contention that the City of Tyler and its inhabitants were not aware that the Railroad sought relief from the contract or that the effect of the order of the Commission was to relieve appellants from any restriction imposed by the contract or by the 1906 injunction.

The record shows that appellants in good faith relied upon the validity of the 1953 order of the Commission approving the lease, that the support of the Tyler community in securing such order from the Commission was instrumental in causing the Missouri Railroad to construct a $1,500,000.00 building in the city and to create 157 new jobs and bring 120 new families to the community. From the date the lease was approved until the contempt proceedings were filed by the city in 1965, the record shows no contention on the part of the municipality or its citizens that they considered the provision of the contract or the injunction to be of any further binding effect or that they challenged the validity of the order of the Interstate Commerce Commission.

There can be no question but that the Missouri Railroad’s reliance upon the Commission’s authority to relieve it from the contract in question caused appellants to materially alter their position. The lease was based upon a specific condition invalidating the contract upon which the injunction was based, and the City of Tyler which was the beneficiary under the contract and the injunction reaped benefits made possible by the approval of the lease by the Interstate Commerce Commission. After a silence of more than a decade the city could not equitably challenge the order of the Interstate Commerce Commission and the Railroad’s change of position and reliance thereon. The trial court properly found that the facts and circumstances shown in this record authorize it as a matter of equity to modify, vacate and set aside the permanent injunction entered in 1906 because of changed conditions.

Appellees, in an able brief, urge numerous other contentions in support of the judgment. Some of these contentions are that the City of Tyler was not bound by the order of the Commission because it was not a party to the hearing, that the 1906 permanent injunction was a final judgment and could not be vacated, and that appellees are barred by limitations, laches and by reason of fraud from securing the relief sought. We have examined the record and find that none of the contentions of appellants in support of the judgment are valid.

The order of the Interstate Commerce Commission and the change as shown by the record require that the 1906 injunction be suspended and vacated.

The judgment is reversed and judgment is here rendered for appellants.


author: HUGHES, Justice.

text:
    GREAT AMERICAN INSURANCE COMPANY et al., Appellants, v. SHARPSTOWN STATE BANK, Appellee.
    No. 11558.
    Court of Civil Appeals of Texas. Austin.
    Dec. 20, 1967.
    Rehearing Denied Jan. 10, 1968.
    Barrow, Bland & Rehmet, David Bland, Underwood & Holcombe, Decatur J. Hol-combe, Louis C. Abernathy, Houston, for appellants.
    Wilson, Kendall, Koch & Randle, Will Wilson, Gaynor Kendall, Austin, for ap-pellee.
   HUGHES, Justice.

This suit is for a declaratory judgment under Art. 2524 — 1, Vernon’s Ann.Tex.Civ. St., brought by Sharpstown State Bank, ap-pellee, against Commercial Investment Fund, Inc., the Great American Insurance Company, William Nathan and Mayfair Building Corporation.

Nathan and Mayfair filed pleas of privilege to be sued in Harris County. Great American filed a plea of privilege to be sued in Dallas County, or, in the alternative, in Harris County. Commercial Investment has made no appearance.

This appeal is from an order overruling all pleas of privilege.

There are no fact issues in this case, only questions of law being presented.

Sharpstown is a Texas banking corporation located in Harris County. Nathan is a resident of Harris County. Mayfair is a Texas corporation with its principal place of business in Harris County.

Great American is a New York corporation with a permit to do business in Texas and it does do business here. It has an office in Dallas County and its agent for service resides there. It also has several agents and a salaried representative residing in Travis County, the county of suit.

We summarize the pertinent allegations of appellee’s petition which are supported by stipulation or uncontradicted evidence:

(1) On or about December 7, 1966, Mayfair Building Corporation and Nathan executed and delivered to Sharpstown a promissory note payable to it, or order, in the principal sum of $300,000 due December 7, 1967, and payment of which was secured by pledge of certain stock and by the surety bond next below mentioned.

(2) On or about December 7, 1966, the Great American Insurance Company, as surety, along with Nathan and Mayfair Building Corporation as principals, made, executed and delivered to Sharpstown, as obligee, a surety bond in the penal sum of $300,000, conditioned that the principals would pay the aforesaid $300,000 note, and promising on the part of surety that “should the principals fail to perform their obligation to Obligee” as set forth in the note, the surety would “make such payment promptly to the Obligee after receipt of written demand therefor.”

(3) On or about December 7, 1966, Nathan and Commercial Investment Fund, Inc., made, executed and delivered to Sharps-town a promissory note payable to it, or order, in the principal sum of $170,000 on December 7, 1967, and payment of which was secured by pledge of certain stock and by the surety bond next below mentioned.

(4) On or about December 7, 1966, the Great American Insurance Company, as surety, together with Nathan and Commercial Investment Fund, Inc. as principals, made, executed and delivered to Sharps-town, as obligee, a surety bond in the penal sum of $170,000, conditioned that the principals would pay the aforesaid $170,000 note, and promising on the part of the surety that “should the principals fail to perform their obligation to Obligee” as set forth in the note, the surety would “make such payment promptly to the Obligee after receipt of written demand therefor.”

In reliance on the respective surety bonds and the undertakings of the parties as set out therein, Sharpstown advanced and lent to the principals in the respective bonds, the amount of their respective notes.

On or about March 6, 1967, the Great American Insurance Company notified Sharpstown in writing that it held the surety bonds to be invalid, that it asserted that the bonds were not authorized bonds by it, and that it disclaimed all liability or recognition of the bonds or any obligation that they purported to cover.

Averring that the repudiation of the contracts was wrongful, and that it had suffered monetary loss and damage by reason thereof, Sharpstown prayed judgment decreeing and declaring each of the promissory notes to be valid, binding obligations of the parties who signed the same as makers, and decreeing and declaring each of the surety bonds to be valid obligations of and binding, according to their face and tenor, upon the respective parties alleged to have executed them.

Great American has two points the first of which is that the pleadings and evidence do not, as a matter of law, establish an existing controversy essential to vest the court with jurisdiction to grant declaratory relief.

Nathan and Mayfair have a similar point to the effect that the trial court lacked jurisdiction because appellee sought only an advisory opinion.

We agree, of course, that our courts do not have authority to render advisory opinions. We disagree with the view that appellee seeks only an advisory opinion.

The declaratory judgment act, supra, provides, in part:

“Section 1. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.
Power to construe, etc.
Sec. 2. Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a Statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, Statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relátions thereunder.
Before breach
Sec. 3. A contract may be construed either before or after there has been a breach thereof. * * *
Enumeration not exclusive
Sec. 5. The enumeration in Sections 2, 3, and 4 does not limit or restrict the exercise of the general powers conferred in Section 1, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.”

All appellants base their points on the premise that this action is premature for the reason that there has been no default on the notes secured by the obligation of Great American and that no liability of Great American on the bonds executed by it can come into existence until the principals on the notes default. Particularly, this is true, they say, because under the provisions of the notes Sharpstown has no right to accelerate payment of the notes.

This analysis of the situation is, in our opinion, completely unrealistic and provides a solution for the problem similar to the manner in which an ostrich is said to solve its problems.

A pauper’s note guaranteed by the United States Government has an entirely different character from an unguaranteed note of the pauper.

Sharpstown has the right to know whether it holds notes guaranteed by Great American or whether it holds the unguaranteed notes of their makers.

The validity of such guarantees having been repudiated by the guarantors, it is of the utmost importance and urgency that this question be determined. Should Sharps-town desire to negotiate these notes, common honesty would require it to advise the purchaser that Great American had repudiated its obligation to guarantee payment of the notes. That this knowledge would impair merchantability of the notes is unquestionable.

We hold that a present justiciable controversy of great magnitude is shown to exist between Sharpstown and Great American even though consequential relief may not at this time be granted. See Garwood Irr. Co. v. Lundquist, 252 S.W.2d 759, Tex.Civ.App., Galveston, writ ref.

The written obligation of Great American is a contract within the provisions of the declaratory judgment act and since its validity is challenged proceedings under such act to resolve this doubt are within the express terms of the statute.

We overrule the points under discussion.

Appellee’s right to maintain this suit in Travis County against Great American is based upon Sub. 27 of Art. 1995, V.T.C.S., which provides, in part, that a foreign corporation may be sued in any county “ * * * where such company may have an agency or representative * *

All- appellants have points to the effect that this subdivision of Art. 1995 is in violation of the 14th Amendment to the United States Constitution because it, considered in connection with Sub. 23 of Art. 1995, discriminates between foreign and domestic corporations.

These points are overruled upon the authority of Commercial Insurance Company, etc. v. Adams, 369 S.W.2d 927, Tex.Sup.Ct., approving a decision by the 1st Court of Civil Appeals in Houston, 366 S.W.2d 801, holding subdivision 27 of Art. 1995 not vio-lative of the 14th Amendment to the United States Constitution.

Appellants Nathan and Mayfair have two remaining points, one that the doctrine of forum non conveniens should have been held applicable to this case and the pleas of privilege sustained and the other that they are not necessary parties to this suit.

In support of its argument that Travis County is not the forum in which this case could be tried most conveniently, these appellants point out that appellee and they are residents of Harris County and that the notes involved are payable there whereas none of the parties reside in Travis County and none of the involved transactions occurred there.

The reason Sharpstown sought a “neutral” jurisdiction is not apparent, and, we believe, of no legal concern. It had a right, under the venue statutes, to bring the suit where it did. Since this was a right conferred upon it by statute, the doctrine of forum non conveniens, as such, is not applicable. H. Rouw Co. v. Railway Express Agency, 154 S.W.2d 143, Tex.Civ.App., El Paso, writ ref.

The pleas of privilege of Mayfair and Nathan were purely formal. Neither by such pleas nor by any other pleading did either of these parties raise the issue of forum non conveniens, nor did they move for change of venue under Rules 257-259, inc., Texas Rules of Civil Procedure. It follows that they cannot, for the first time, raise such issues in this Court. This point is overruled.

We also overrule these appellants’ remaining points and hold that they are necessary parties to this suit under Sub. 29a, Art. 1995, V.T.C.S.

Mayfair and Nathan executed a bond as principals, with Great American as surety, binding themselves, jointly and severally, to pay Sharpstown the amount of a note, $300,000.00, made by Mayfair and Nathan to Sharpstown conditioned only that if the principals paid such note, the obligation of the bond would become void.

A similar bond was executed by Nathan and Commercial Investment Fund as principals and Great American as surety in regard to the $170,000.00 note executed by Nathan and Commercial to Sharpstown.

The declaratory judgment sought is to have these bonds established as valid according to their terms and provisions. A provision in each bond was that the principals and surety were jointly and severally liable thereon.

Sharpstown cannot obtain full relief in this case unless it obtains a judgment that the principals as well as the surety are jointly and severally liable on the bonds in suit. No judgment of joint liability could be rendered in the absence of any party sought to be held jointly liable. Commonwealth Bank and Trust Co. v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74; Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758.

The judgment of the trial court is affirmed.

Affirmed.

      . Other financial institutions are shown to have beneficial interest in these notes.


author: GREEN, Chief Justice.

text:
    Minda HOLLIDAY et al., Appellants, v. H. V. SMITH, Appellee.
    No. 348.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1967.
    Rehearing Denied Dee. 28, 1967.

      R. O. Wyatt, J. Leonard Gotsdiner, Houston, for appellants.
    Wayne G. Dotson,- Foreman, Dyess, Prewett, Henderson & Cantey, Houston, for appellee.
   OPINION

GREEN, Chief Justice.

H. W. Smith of Goliad County, Texas, died on April 1, 1960. Application to probate his will was duly filed on April 21, 1960, in the County Court of said county by his son, Henry Vivian Smith, appellee herein, named as independent executor in the will. Since said applicant was a non-resident of Texas, his residence being in Washington, D. C., he filed with the county clerk of Goliad County concurrently with said application an instrument duly executed and acknowledged by him appointing A. T. Barefield of Refugio, Refugio County, Texas, as his resident agent to accept service of process in all actions or proceedings with respect to such estate, in compliance with Sec. 78(d) of the Texas Probate Code, V.A.T.S. Betts v. Betts, Tex.Civ.App., 395 S.W.2d 673, n. w. h. On May 2, 1960, the court signed its order admitting the will to probate, and granting letters testamentary to applicant Henry Vivian Smith.

On September 28, 1961, appellants Minda Holliday and her sister Vivian Felder, grandchildren of deceased, and nieces of appellee, joined by their husbands, filed their petition in the county court of Goliad County contesting the probate of the will of H. W. Smith, and praying that the order of probate be set aside. Appellee Henry Vivian Smith individually and as the Executor of the Estate of H. W. Smith, deceased, was named as defendant. Although we have been unable to find any reference in the record (except in appel-lee’s pleadings and brief) as to when citation was issued, and have not been referred to any evidence thereof by appellee’s brief, the record does show that the date of service of such citation on A. T. Barefield, agent for service, was January 3, 1963, two years and eight months after the entry in the county court of the order of probate. It would appear a reasonable fact assumption that the citation was issued within 90 days prior to the date since under Rule 101, Texas Rules of Civil Procedure, a citation remaining unserved 90 days after issuance must be returned unserved. Appellee’s original answer by which he appeared for the first time in the contest was filed January 21, 1963,

The county court upheld the order probating the will and naming appellee as independent executor. On appeal to the district court, a trial de novo before the court and jury was had, and an order was entered again denying contestants the relief sought. From said judgment, contestants have appealed to this court.

Prior to the trial on the merits in the district court, a pre-trial session was had to hear and rule upon exceptions and a motion in limine of proponent based on the issue of limitations as a matter of law as to certain of contestants’ grounds of contest raised by their pleadings. Plaintiffs in the district court were depending, as their grounds of contest, on the contentions (1) that the will was a forgery; (2) that defendant was guilty of fraud; and (3) revocation of the will by deceased prior to his death. The court after hearing evidence and argument entered the following order:

“PRE-TRIAL ORDER
NO. 5012
MINDA HOLLIDAY ET AL "I IN THE DISTRICT COURT OF VS. I GOLIAD COUNTY, TEXAS HENRY VIVIAN SMITH ET AL J 24th JUDICIAL DISTRICT
PRE-TRIAL ORDER
“BE IT REMEMBERED that prior to the commencement of trial in the above numbered and captioned cause, a pre-trial hearing was held before this Court, and after consideration of the dilatory pleas and motions, the court made the following rulings and entered this its pre-trial order:
1. All grounds for setting aside the Probate of the Will of H. W. Smith, other than for fraud or forgery, are barred by limitations.
2. Any conduct or activity alleged to be the basis of fraud which occurred after the date of the Will of H. W. Smith was admitted to Probate is not properly joined in this cause of action.
3. The Plaintiff having made no contentions that the defendant was guilty of any fraud prior to the date that the Will was entered into Probate, no evidence shall be heard or adduced before the jury except that which bears upon the issue of forgery.
4. As the basis for this order, the court has taken judicial notice of the papers on file in the Probate Court and County Court of Goliad County, Texas, the oral statements of counsel setting forth contentions of the parties and the pleadings on file herein.
Pursuant to Rule 166, Texas Rules of Civil Procedure, this Order shall control subsequent course of action in this case unless modified during the course of trial to prevent manifest injustice.
ENTERED AND SIGNED the 9th day of December, 1966, nunc pro tunc.
Joe E. Kelly Presiding Judge”

Appellants base their appeal on five points of error, as follows:

“POINTS OF ERROR
1. The Court erred in granting Appel-lee’s Motion in Lemine to confine the Appellants’ testimony to the question of forgery and omitting all other grounds asserted by the contestants as a basis for setting aside the probate of the purported will.
2. The Court erred in sustaining Appel-lee’s Plea of the Statute of Limitations.
3. The Court erred in failing to submit to the jury the requested definition of forgery.
4. The Court erred in failing to submit to the jury issues concerning the perpetration of fraud by the Appellee on the Appellants in offering for probate a will he knew his father had revoked.
5. The Court erred in denying Appellants’ Motion for Judgment notwithstanding the verdict.”

We shall consider together appellants’ ■first and second points. Under the facts .appearing of record, the trial court properly ruled that the issue of revocation was barred by limitation (Sec. 93, Probate Code) and that for the reasons found by the court, contestants would be limited to their alleged ground of forgery.

' Prior to the adoption of the Probate Code of Texas, which became effective January 1, 1956, the limitation period for filing a suit to contest the validity of an order admitting a will to probate was within four years after the entry of the order, Art. 5534, Vernon’s Ann.Tex.Civ.St., or within four years after discovery of forgery or other fraud, Art. 5536, V.A.T.S., and if the contestant be a minor, a married woman, a person imprisoned or of unsound mind, the time of such disability was not to be deemed a portion of the time limited for the commencement of the action. Art. 5535, V.A. T.S. However, this was changed when § 93 of the Probate Code of Texas became effective January 1, 1956. Such section reads as follows:

“After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward. Provided, however, that persons non compos men-tis and minors shall have two years after the removal of their respective disabilities within which to institute such contest. * * * ”

It is the settled law of this State that the mere filing of a petition in a law suit does not toll the statute of limitation. There must be a bona fide intention that process be both issued and served, and due diligence must be exercised by the plaintiff in such regard. Travelers Insurance Company v. Brown, Tex.Sup.Ct, 402 S.W.2d 500, 504; Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859; City of Gainesville v. Harder, 139 Tex. 155, 162 S.W.2d 93; Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178; McMullen Oil and Royalty Company v. Lyssy, Tex.Civ.App., 353 S.W.2d 311, n. w. h.; Buie v. Couch, Tex.Civ.App., 126 S.W.2d 565, wr. ref. In the present case, there was no attempt to excuse the delay in the issuance or service of citation for a period of over a year after the suit was filed on September 28, 1961, and approximately two years and a half after the original order of probate had been entered on May 2, 1960. The court properly ruled that all grounds of contest except those of fraud and forgery were barred by limitation, and no evidence on the issue of revocation should be admitted.

Appellants argue that since they are married women, the statute of limitation would not be applicable to them during their coverture under the provisions of Art. 5535, V.A.T.S. We do not agree. We hold that Art. 5535 is not to be construed as a limitation upon or an exception to the provisions of § 93 of the Probate Code as to married women. This conclusion is obvious because § 93, while specifically including exceptions for minors and persons non compos mentis, included within the provisions of Art. 5535, does not mention an exception for married women.

This construction is strongly supported by the statement of the Hon. R. Dean Moorhead, recognized as one of the principal drafters of the Texas Probate Code, in the foreword to such Code, page vi of Vol. 17A, V.A.T.S., as follows:

“3. The period for contesting a will has been reduced from four years to two years. The period for obtaining a bill of review has also been set at two years, as has the period for obtaining review by way of certiorari, with the elimination of the former exception in favor of married women.” (Emphasis added.)

Appellants rely on the case of Strasburger v. Compton, Tex.Civ.App., 324 S.W.2d 951, wr. ref. n. r. e., for the proposition that their coverture tolled the running of the statute of limitations. The facts of that case, however, dealt with a will that was admitted to probate on June 22, 1952, prior to the adoption of the Texas Probate Code, effective January 1, 1956. H. W. Smith, the testator here, died in 1960, and his will was probated May 2, 1960, and this case is governed by § 93, supra, and not by Art. 5535.

Under Art. 5535, prior to the effective date of the Probate Code if a young matron in her twenties were interested in an estate, it could well be that administration could not be regarded as settled until after she had passed her silver or golden anniversary, and thus the estate might be left in an unsettled status for decades. We feel, and so hold, that one of the purposes and salutary effects of § 93 was to remove the exception of coverture from the requirement of the time in which to file and prosecute a suit to set aside an order of probate. See 12 Baylor Law Review, pp. 136-140, Wills—Period to Probate—Effect of Limitation Statutes.

As to the trial court's ruling that evidence of fraud would not be admissible in the trial on the merits, the record on the pre-trial hearing fully support the court’s finding that this issue was not raised or tried in the county court trial.

“ * * * The rule seems to be well settled that on appeal to the District Court from probate matters originating in the County Court, the District Court has only appellate jurisdiction to revise, declare void or set aside orders and decrees of the County Court sitting in Probate, and that no enlargement of the issues tried in the County Court will be permitted on appeal. * * * ”

In re Martin’s Estate, Tex.Civ.App., 284 S.W.2d 279, 280, wr. ref. n. r. e. and cases cited.

The order of the trial court at the pretrial hearing was qualified by the court so as to permit it to be modified during the course of trial “to prevent manifest injustice.” During the trial, appellants offered, on bill of exception, the testimony which they considered applicable to their contention of fraud. We have carefully considered such tendered testimony and find no evidence that would support an issue of fraud practiced by contestant (or by any one) on the testator directed toward the execution of this will.

We find no merit in appellants’ first and second points, and they are overruled.

Appellants’ third point of error is that the trial court erred in failing to submit to the jury the requested definition of forgery. The only manner in which the record shows any objections or requests concerning the court’s charge is in the statement of facts, which is not signed by the trial court, which reflects that after both sides had closed their evidence, and the charge had been submitted to counsel, the following oral proceedings took place:

“MR. GOTSDINER: Your Honor, we would like to make this objection, or at least submit this for the Court’s consideration—
THE COURT: Okay.
MR. GOTSDINER: — by the term, ‘forgery’ is meant an instrument which is not signed by the person to whom the signature is attributed, or by the substitution of an instrument other than the one signed by the person to whom the signature—
MR. CANTEY: There is no evidence of substitution.
(Discussion off the record)
MR'. GOTSDINER: We would also like to submit the following definition: By the term ‘forgery’ is also meant an instrument which is substituted in lieu of the purported instrument actually executed or signed by the person in question. In other words, we contended, your Honor, that there could be a forgery either by the signature other than the one to whom the signature is attributable, or to have a substitution of the instrument, themselves.
THE COURT: All right. That requested definition will be refused, and the Court will submit the following definition :
By the term ‘forged instrument’ as used herein, means an instrument signed by a person other than the one who purports to have signed such instrument.
(Discussion off the record)
(Recess.)”

The transcript contains no requests or written objections to the charge as given, and of course no ruling endorsed by the court on any such objections or requests. In fact, the transcript does not contain the charge of the court or the definition of forgery as actually given in the charge. Only the single issue on forgery as the question itself was worded is contained in the transcript, it being shown in the court’s judgment.

We have serious doubts as to whether the question raised by appellants’ point three is properly before us for decision under these circumstances. Rules 272, 273, T. R.C.P.; Grabes v. Reinhard Bohle Machine Tools, Inc., Tex.Civ.App., 381 S.W.2d 395, wr. ref. n. r. e.; South Texas Electric Cooperative, Inc. v. Beutnagel, Tex.Civ.App., 388 S.W.2d 447, n. w. h.; Kettle v. Smircich, Tex.Civ.App., 415 S.W.2d 935, n. w. h.

However, we have found no evidence in the record raising the issue of substitution of instruments or pages of an instrument in lieu of the instrument actually executed and signed by testator. Judge Benge, who drew the will, testified that he was present when the will was executed, that he and his secretary signed as subscribing witnesses at the request of the testator, and that the will which was admitted to probate was the same as the one which he drew and which was signed in his presence. Appellee concedes there was evidence as to the signature of testator being a forgery, and this issue was submitted to the jury and answered adversely to appellant. In the absence of any evidence of substitution of pages or instruments, the court properly refused to give the definition requested orally by appellant. Dallas Ry. & Terminal Co. v. Orr, 147 Tex. 383, 215 S.W.2d 862. Appellants’ third point is overruled.

Appellants’ fourth point dealing with the alleged error of the court in failing to submit an issue of fraud practiced by appellee upon appellants in offering for probate a will known by him to have been revoked is likewise overruled. We have heretofore pointed out that there was no evidence introduced before the jury raising the issue of fraud directed to the execution of the will. There was no competent evidence offered that defendant had any knowledge of any revocation of the will. Appellants did not object in writing to the charge for failure to include an issue on fraud, nor did they tender such an issue to the trial court. A request for submission and tender of the requested issue is the proper method of preserving the right to complain of failure to submit an issue which is relied on by the complaining party. Lyles v. Texas Employers’ Insurance Association, Tex.Civ.App., 405 S.W.2d 725, wr. ref., n. r. e.; Parr v. Herndon, Tex.Civ.App., 294 S.W.2d 162, wr. ref., n. r. e.

By their fifth point of error, appellants contend that the court erred in overruling the motion for judgment notwithstanding the verdict because the defendant in unqualifiedly introducing in evidence without objection in the district court trial the entire record of the county court trial of the will contest thereby judicially admitted the truth of, and should be bound by, the allegations of plaintiffs’ pleadings therein contained. Since this record also contained defendant’s pleadings and the decree of the county court upholding the probate of the will, and since in the district court trial the defendant-appellee introduced the testimony of Judge Benge as stated above, the introduction of such record cannot be considered as any judicial admission of any of appellants’ contentions. Ballard v. Aetna Casualty and Surety Company, Tex.Civ.App., 391 S.W.2d 510, wr. ref., n. r. e. The fifth point is overruled.

Affirmed.