author: MELVIN T. STUBBS, Special Commissioner.

text:
    John C. SCHWEITZER, Appellant, v. Shirley B. GOOD, Appellee.
    Court of Appeals of Kentucky.
    June 5, 1964.
    Edward J. Hogan, Henry V. B. Denzer, Louisville, for appellant.
    Ephraim K. Lawrence, Jr., J. Walter Clements, Louisville, for appellee.
   MELVIN T. STUBBS, Special Commissioner.

This is an appeal from a judgment in favor of Shirley B. Good in the amount of $7500. Motions of appellant for a new trial, or, in the alternative, for judgment notwithstanding the verdict, were overruled. Appellant contends that the trial court erred in failing to give appellant’s offered instructions, and further contends that the appellee was contributorily negligent as a matter of law and that the trial court erred in failing to direct a verdict in favor of appellant.

This litigation involves an interscctional collision of motor vehicles occurring in the City of Louisville. On June 13, 1959, an automobile, owned and operated by appellant, John C. Schweitzer, northwardly on Jackson Street, collided with an automobile being driven by appellee, Shirley B. Good, westwardly on Breckinridge Street. Jackson is a one-way street for northbound traffic and Breckinridge one-way for westbound traffic. Both are foui'-lane streets and the movement of traffic, at the intersection, is. controlled by an electrical traffic signal, which overhangs the center of the intersection. Situated in the front seat with appellee were her husband, who was seated next to the right door, appellee’s aunt, seated next to appellee, and appellee’s three-year-old cousin, who was standing on the front seat between appellee and her aunt. An adult and two children occupied the rear seat of appellee’s vehicle. The only passenger in appellant’s automobile was his mother.

■ Appellee testified that when her automobile reached Hancock, which is one square east of Jackson, she noticed that the traffic light at the intersection of Jackson and Breckinridge was red for traffic moving west on Breckinridge. At this time she was traveling at approximately 30 miles per hour and, as she traveled west, toward the. intersection, she started slowing down. She testified that when her automobile reached a point about 45 to 60 feet from the intersection the traffic light changed from red to green, at which time she accelerated the speed of her vehicle to about 25 or 30 miles per hour and entered the intersection on the green light. Appellee testified that she neither observed, appellant’s automobile enter the intersection, nor did she expect traffic to be approaching from her left as she entered the intersection, because the light was green in her favor; further, that she did look for traffic approaching north on Jackson when she was two or three car lengths from the intersection, but that she did not see appellant’s automobile before the impact.

At the trial, it was stipulated that there is situated at the southeast corner of Jackson and Breckinridge, a three-story building, with neither front nor side yard, and that the building extends out to the sidewalk. Appellee testified that such building would prevent her from seeing traffic traveling north on Jackson, and approaching the intersection, until such time as her vehicle, traveling west on Breckinridge, would reach a point approximately two car lengths from the intersection. She estimated, a car length to be about 15 feet,

The three adult passengers in appellee’s vehicle were called as witnesses, but none could testify as to the color of the light at the time appellee’s automobile entered the intersection. Maggie Ruth Love, appellee’s aunt, seated in the front seat of the vehicle, testified that she observed the traffic light to be red for westbound traffic on Breckin-ridge when their vehicle was about half a block from the intersection. She testified that she did not observe the traffic light thereafter. Hobard Love, who was seated on the rear seat of appellee’s vehicle, testified that the traffic light was green for westbound traffic on Breckinridge when the vehicle was 35 feet east of the intersection, and that he did not observe any northbound vehicles on Jackson. Fred P. Good, husband of appellee, a passenger in the front seat, and seated next to the right door, testified that at the time of the impact, and immediately prior thereto, he was looking to the north and that he had not observed the color of the traffic light governing westbound traffic on Breckinridge.

Appellant, Schweitzer, testified that he first observed the traffic light at Jackson and Breckinridge just after his vehicle had crossed Kentucky Street, which is two squares south of Breckinridge, and, that at the time, the traffic light was red for northbound traffic on Jackson; that when his vehicle reached a point on Jackson, approximately 80 to 100 feet south of its intersection with Breckinridge, the traffic light changed to green in his favor and he entered the intersection on the green light. Appellant testified that an automobile, approximately four car lengths in front of his vehicle, preceded him into the intersection, and that there was a vehicle, being operated northwardly on Jackson, to his left rear as he entered the intersection. The automobile to appellant’s left rear was being driven by Edward P. Brown. Appellant testified that he first observed appellee’s vehicle when it was 15 to 20 feet east of the intersection on Breckinridge, at which time his own vehicle was at the south crosswalk at Breckinridge, and that he immediately applied his brakes. The collision occurred in the intersection with the left front of appellee’s vehicle colliding with the right front of appellant’s automobile. As a result of the impact, appellant’s vehicle was caused to collide with the Brown vehicle traveling to its left. Catherine M. Schweitzer, mother of appellant, was a passenger in his automobile at the time of the collision. She testified that her son’s vehicle entered the intersection on the green light. Edward P. Brown, operator of the vehicle to the left of appellant’s automobile, testified that both his vehicle and appellant’s vehicle entered the intersection with the green light in their favor. Edna, wife of Brown, and a passenger in his automobile, testified that the Brown vehicle entered the intersection when the light was green for northbound traffic on Jackson.

Both appellee and appellant sought recovery for personal injuries sustained in the accident. In addition, Fred P. Good, a plaintiff below, owner of the vehicle being operated by appellee, sought recovery for damage occasioned to his vehicle. In his counterclaim, Schweitzer also sought recovery for the damage occasioned to his vehicle. The jury awarded appellee $7500, and awarded to her husband, Fred P. Good, $228, and found for the Goods on the counterclaim of Schweitzer.

The first two grounds assigned as error by appellant relate to the failure of the trial court to give appellant’s offered instructions. It is contended that such failure was prejudicial to appellant so as to entitle him to a new trial. One of appellant’s offered instructions, refused by the trial court, was similar to that appearing in Stanley’s Instructions to Juries, Section 323, and to the effect that appellee could not recover for injuries “caused at some other time, or by some other means.” Appellant contends that he was entitled to this instruction since the testimony revealed that appellee had been involved in automobile accidents both prior and subsequent to the accident out of which this action arose. There is nothing contained in the record to indicate what injuries, if any, appellee sustained in the prior accident. She testified that in the subsequent accident, which occurred in November, 1959, her knees were bruised and she was shaken up. There is no evidence of any further injury resulting to her from that accident. Medical testimony adduced on the trial of this case reveals that appel-lee sustained injuries, in the accident giving rise to the case at bar, which resulted in a permanent deformity to her pelvis and which could interfere with normal childbirth. Dr. Richard T, Hudson, orthopedic surgeon, also testified that appellee had a herniated lumbar disc. The diagnosis of the disc condition was made by Dr. Hudson in June, 1960; however, his testimony attributed the condition to injuries sustained in this accident.

Appellant cites, in support of his contention that the trial court erred in failing to give the offered instruction, the case of Spencer v. Matthews, Ky., 247 S.W.2d 515, and that of Louisville & Nashville Railroad Company v. Mattingly, Ky., 318 S.W.2d 844. However, the facts in these cases are distinguishable from those in the case at bar. In the former case, Spencer had suffered a compound fracture of the leg about three years before the accident in question. This injury had caused a slight shortening of the leg, and, up until a week or two before the second accident, he had worn a metal brace. In the latter case, Mat-tingly had suffered a prior injury and an arthritic involvement which predated the injuries he received on the railroad. In both cases, pre-existing injuries were definitely established. In the case at bar there is no establishment of either pre or post injuries as would entitle appellant to his offered instruction. The trial court’s instructions in the case at bar provided for damages sustained by appellant “as the direct and proximate result of the injuries, which were the direct and proximate result of the aforementioned collision.” In the opinion of the court, this was both proper and adequate under the facts in the case.

Appellant next contends that the trial court erred in refusing to give his requested instruction based on KRS 189.470 relating to more than three persons being in the front seat of a vehicle. KRS 189.470 provides :

“(1) No person shall operate a vehicle when it is so loaded, or when there are in the front seat such number of persons, exceeding three, as to obstruct the view of the operator to the front or sides of the vehicle or as to interfere with the operator’s control over the vehicle.
“(2) No passenger in a vehicle or street car shall ride in such a position as to interfere with the operator’s view ahead or to the sides, or to interfere with his control over the vehicle or street car.”

Under this statutory provision, it is unlawful to operate a vehicle with more than three persons in the front seat if the excess number obstructs the view of the driver to the front or sides of the vehicle, or interferes with his control thereof. There is no testimony in the case at bar which even suggests that the presence of the fourth person in the front seat, the three-year-old child, obstructed the view of Mrs. Good, the operator, or interfered with her control over the vehicle. The child was standing on the seat to the right of appellee and could not possibly have interfered with appellee’s view to the left, the direction from which appellant’s automobile entered the intersection. The evidence does not disclose, nor can we infer therefrom, that the presence of four persons in the front seat of the vehicle had any causal connection with the accident. Although the presence of four persons in the front seat may constitute negligence, it was not a causative factor in the accident.

In the case of Clark v. Finch’s Adm’x., Ky., 254 S.W.2d 934, two adult persons and four children were riding in the cab of the Finch truck. Appellant offered an instruction defining the duties of the driver of the Finch truck, which included the duty not to have more than three persons on the seat occupied by the driver so as to obstruct his view to the front or sides of the vehicle, or to interfere with his control thereof. The trial court gave the instruction after striking the provision relating to the number of occupants in excess of three interfering with the driver’s control of the vehicle. In such case we held:

“ * * * The circumstances of the accident were such as to suggest the possibility that there was an interference with the driver’s control of the Finch truck, and it was prejudicial to omit from the instruction one of the statutory conditions which made it unlawful to operate the vehicle with the number of occupants which were shown.”

Appellant cites, in support of his contention, Coy v. Hoover, Ky., 272 S.W.2d 449, and Tennessee Products & Chemical Corporation v. Miller, Ky., 282 S.W.2d 52, in which cases the court cited, with approval, the decision in Clark v. Finch’s Adm’x., supra. These were cases in which four persons occupied the front seat of the vehicles and in which this court approved the giving of an instruction under KRS 189.470. While it appears that this Court, in such cited cases, adopted a somewhat more liberal rule as to the circumstances under which the instruction should be given, we have not held, nor do we now, that the mere presence of more than three persons in the front seat of a motor vehicle which is involved in a collision is, in itself, sufficient to support an instruction under KRS 189.470. Under the facts in this case, we conclude that the trial court properly refused appellant’s offered instruction under KRS 189.470.

Finally, appellant contends that appellee was contributorily negligent as a matter of law in failing to keep a lookout ahead, and that the trial court erred in submitting the matter to the jury and in overruling appellant’s motion for judgment notwithstanding the verdict. With this contention we do not agree. Appellee testified that before entering the intersection, and when she was two or three car lengths therefrom, which distance she judged to be 30 to 45 feet, she looked to her left but observed no traffic moving north on Jackson at or near the intersection. She further testified that when her vehicle entered the intersection the traffic light was green in her favor.

The trial court, in addition to instructing the jury that it was the duty of each party not to enter the intersection on the red light, instructed on the reciprocal duties of the drivers to keep a lookout ahead, to keep the automobile under reasonable control and to use ordinary care. Since there was an issue made in this case that appellee failed to maintain a proper lookout, the instruction was proper under Roland v. Murray, Ky., 239 S.W.2d 967. Had the issues been so formed that the only negligence charged against either party consisted of running the red light, the trial court might have limited its duty instruction to that one issue. Meglemry v. Bruner, Ky., 344 S.W.2d 808; Partee v. Ryan, Ky., 261 S.W.2d 637; Lincoln Taxi Co., Inc., et al. v. Rice et al., Ky., 251 S.W.2d 867.

It is well settled that while a motorist, entering an intersection on a green light, has a right to rely on the assumption that those at the intersection, faced with a red light, will respect such light, he is not relieved of other recognized legal duties, one of which is to maintain a proper lookout. Under the circumstances in the case at bar, the question whether or not appellee maintained a proper lookout and, if she failed to maintain a proper lookout, whether such failure was the proximate cause of the collision was a factual issue for the jury to determine. Curry’s Adm’x. v. Travelsted, Ky., 271 S.W.2d 37. The trial court properly overruled appellant’s motions for a directed verdict and for judgment notwithstanding the verdict.

Wherefore, we recommend that the judgment of the Jefferson Circuit Court be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Doyle WILLIS, Petitioner, v. CITY OF FORT WORTH et al., Respondents.
    No. A-10259.
    Supreme Court of Texas.
    July 8, 1964.
    See also (Tex.Civ.App.) 380 S.W.2d 814.
    Fannin & Fannin, Kenneth Spell, Fort Worth, for petitioner.
    S. G. Johndroe, Jr., City Atty., Fort Worth, for respondents.
   PER CURIAM.

This case may reach this Court by writ of error. Final disposition of the case will not necessarily be expedited but may be materially delayed by accepting the case on certified questions. We therefore exercise the discretion conferred by Rule 461, Vernon’s Ann.Civ.St. and decline to answer the certified questions.

The certificate is dismissed and the record is ordered returned to the Court of Civil Appeals for further consideration and disposition.


text:
    Doyle WILLIS, Appellant, v. CITY OF FORT WORTH et al., Appellees.
    No. 16581.
    Court of Civil Appeals of Texas. Fort Worth.
    July 10, 1964.
    Rehearing Denied July 17, 1964.
    See also (Tex.Sup.) 380 S.W.2d 814.

      Kenneth Spell, Fannin & Fannin, and Oliver W. Fannin, Jr., Fort Worth, for, appellant.
    S. G. Johndroe, Jr., City Atty., Fort Worth, for appellees.
   PER CURIAM.

Appellant, Doyle. Willis, was duly elected a member of the City Council of the City of Fort Worth, an appellee herein, along with eight other individuals, who are also appellees herein. The City is a home Rule City which adopted the council-city manager form of government. The term of office- of a city councilman is two years. On date of February 3, 1964, there remained more than one year of the term for which appellant and other council members were elected.

On said date, the other eight City C-bun-cilmen took action of which appellant complains. On the theory that by reason of appellant’s having become a candidate for State Senator he had vacated his office as Councilman, under a provision of the Charter of the City of Fort Worth,'’they excluded him as a member of City' Council. They appointed Watt Kemble (also ah ap-pellee herein) to sit as a member of such governing body in the place and stead, of appellant and for the remainder of the term for which he had been elected. At the time this occurred, the appellant was publicly insisting that he was lawfully a candidate for the State Senate. Concurrently, appellant was likewise insisting that since the aforesaid provision of the Charter of the City was ineffective (because inhibited by or in conflict with Constitutional provisions) , he was lawfully entitled to continue as a member of the City Council.

At all times appellant has contended his “ouster” to be illegal and ineffective, and that the purported successor to his position as a Council member was illegally presuming to fill such office. He brought suit to have it so established.

April 1, 1964 (while such suit pended), the Supreme Court of Texas handed down its judgment and opinion in Willis v. Potts, 377 S.W.2d 622. Thereby it was settled judicially that appellant herein was not lawfully a candidate for the State Senate. Appellant had filed as a candidate for the Democratic Party’s nomination as State Senator, the election to determine which was scheduled on May 2, 1964. On March 6, 1964, William S. Potts, as Chairman of the Tar-rant County Democratic Executive Committee, served notice upon appellant that he would not be certified as a candidate for such office and that his name would not be placed on the ballot for such primary election. Appellant took prompt legal action in respect to that matter. It was as the result thereof that the case found its way to the Supreme Court and resulted in the determination that appellant was not lawfully a candidate for the State Senate and that Mr. Potts’ action was proper.

Appellant yielded to such judicial determination. Thereafter, as applied to the issues in the instant case, he added to his antecedent contentions a new one, towit: that he had never become a candidate for the office of State Senator. As authority he cites the Supreme Court opinion in Willis v. Potts, supra.

On motion of the appellees for summary judgment, the decision in the trial court was against appellant. Propriety of his “ouster” as a member of Fort Worth’s City Council was confirmed. From this decision he perfected an appeal.

Judgment affirmed.

The basis of appellant’s complaint requires this appellate court to determine two fundamental questions. The first of such questions is whether the pertinent provision of the Charter of the City of Fort Worth is valid under the Federal and State Constitutions. The second question, assuming the first is answered in the affirmative, is whether the appellant was a “candidate” within the meaning and intent of the Charter at the time of the “ouster” of which he complains. If both questions are properly answered in the affirmative, the judgment of the trial court should not be disturbed. We believe both questions should be so answered.

Appellant asserts as unconstitutional the provision in the Charter of the City of Fort Worth which reads as follows: “ * * * If a member of the Council shall become a candidate for nomination or election to any public office, other than that of Councilman, he shall immediately forfeit his place in the Council. * * * ”

The portions of the Constitutions to which appellant makes reference are numerous. In the United States Constitution he refers to Art. IV, Sec. IV; to the first article of the Bill of Rights; and to the Fourteenth Amendment. In the Texas Constitution he refers to our Bill of Rights, or Art. I, Secs. 2, 3, 19, 27 and 29; to Art. XVI, Sec. 17; and to Sec. 40 under the same Article.

We could write at length, but believe it sufficient to say that we find nothing in either the Federal or State Constitutions which expressly or impliedly would prohibit efficacy of the quoted Charter provision, or which would inhibit its enforcement. Therefore, if the appellant did become “a candidate for nomination or election” to the office of State Senator, a public office, his right to retain his place in the Council of the City of Fort Worth ceased upon action taken to have the fact so declared, coupled with action of the remaining members of the Council to fill the vacancy by installing Watt Kemble as Council Member in his place and stead.

Appellant relies heavily on the opinion of the Supreme Court of California, filed May 28, 1964, in Kinnear v. City and County of San Francisco, 38 Cal.Rptr. 631, 392 P.2d 391. Therein was affirmed the decision of the trial court and that of the District Court of Appeal (dated November 12, 1963), reported as Kinnear v. City and County of San Francisco, 35 Cal.Rptr. 43. It appears that an appointive officer, a Deputy Sheriff, was relieved of his county civil service job when he became a candidate for Sheriff. The provision of the City and County charter, under authority of which he was relieved of his office, provided as follows: “ ‘Any appointive officer or employee of the city and county who shall become a candidate for election by the people to any public office shall automatically forfeit such city and county office or position.’ ”

The holding of all California courts acting in the matter was that the stated provision was invalid and unconstitutional as an unwarranted interference with and abridgment of fundamental and basic rights of citizenship. We have referred to the decision of the intermediate court as well as that of the Supreme Court. This done, we immediately note a point of divergence from the instant situation in that while a California municipality may make and enforce all laws and regulations in respect to municipal affairs, it is not free to do so in other matters, such as the matter with which it purported to deal in the enactment of the portion of the City and County Charter which we have quoted. In that respect the subject matter was held to have been “of state concern” and therefore without privilege of control by a city and county charter. It was under the Constitution of California that it was held that the candidate’s discharge as Deputy Sheriff was improper and unlawful, the charter provision being in conflict therewith.

What is not a point of divergence is what is said concerning conflict with the United States Constitution. It is noted that all that was said in this respect was by the intermediate California appellate court. The California Supreme Court was entirely silent. We reject the statements and decision thereupon predicated by the intermediate court. As previously stated, we see nothing in the Federal Constitution prohibitive or inhibi-tive of the material provision of the Charter of the City of Fort Worth.

We have no doubt but that the appellant was a candidate for State Senator on February 3, 1964. In Norris v. United States, 86 F.2d 379 (8th Cir.1936), a defendant was predicating an assertion of innocence to a perjury charge upon the claim that he never engaged in a cámpaign for public office; for the simple reason that the ruling of the Nebraska Supreme Court prevented the placing of his name on the ballot. It was conceded that he intended to conduct a campaign for United States Senator, after having filed his application and certificate, as the party nominee to be selected pursuant to election voted August 12, 1930. He had filed his application with the proper state officer on July 5 of that year, only some 38 days prior to the date of the primary election. Under state statute it was required that all such applications must be filed not less than 40 days before such primary election. By a judgment of July 18, 1930, the Supreme Court of Nebraska held that his application was untimely filed and ordered that his name should not be put on the ballot. The Court wrote (p. 382) : “When appellant filed his application for a place on the ticket to be voted at the primary election, he became in effect a candidate for the office of United States Senator from Nebraska, for by that public act he expressed his desire for the office and his willingness to accept it. This desire and willingness he never voluntarily renounced. He was running for office; he was a candidate for office * * * at least from July 5, 1930, when he filed his verified application, till July 18, 1930, when the Supreme Court of Nebraska ordered that his name be omitted from the ticket.”

This language of the Circuit Court could be easily paraphrased so as to make it fit the condition of the appellant in the instant case. All that needs be changed are the dates to comport with those applicable to his case and the title of the office to that of State Senator. Appellant was a “candidate” within the meaning and import of the Charter of the City of Fort Worth, as well as within the ordinary meaning of the English language.

In respect to the matter of appellant’s candidacy for State Senator, we do not think it material whether he was eligible or ineligible for the office, to be a candidate for the office, or to have his name printed on the ballot. The Charter of the City of Fort Worth does not make any exception.

It was a matter both time consuming and expensive to determine the legality or illegality of appellant’s candidacy. Furthermore, it required that some party with a justiciable interest challenge the validity thereof. For the purposes of the instant litigation, at least, it would be proper to consider the matter of appellant’s candidacy for State Senator, as of the day of his “ouster” from City Council, exactly as it was treated and represented by appellant himself, i. e., as a-valid, lawful and proper candidacy. That was the material time. That his candidacy was subject to being prevented, through action of person or persons having a justiciable interest, was necessarily determinable, if at all, at a later date. The City of Fort Worth had no justiciable interest ' in ■ that case. Had the City sought to question the propriety thereof by court action, its suit would have been subject to dismissal. Although we have grav’e doubt of propriety in the instant appeal of. even considering appellant’s ineligibility-to be a candidate for State Senator we have done so. As noted, we deem that matter immaterial.

Judgment is affirmed.


author: DIXON, Chief Justice.

text:
    DALLAS TRANSIT COMPANY, Appellant, v. Alfred Lowell NEWMAN, Appellee.
    No. 16345.
    Court of Civil Appeals of Texas. Dallas.
    May 29, 1964.
    Rehearing Denied July 10, 1964.

      Turner, Atwood, Meer & Francis and Dean Carlton, Dallas, for appellant.
    Woodruff, Hill, Bader & Kendall, David M. Kendall, Jr., Dallas, for appellee.
   DIXON, Chief Justice.

Dallas Transit Company has appealed from a judgment for $23,650 awarded to appellee Alfred Lowell Newman for property damage and personal injuries resulting on May 21, 1962 from a near collision between a bus owned by appellant and a dump truck owned by appellee.

FACTS

The accident occurred at the intersection of Skillman Avenue and Eastridge Street in the City of Dallas. Skillman Avenue is a divided thoroughfare running in a general direction of North and South. Northbound traffic travels on a two-lane way separated by a median strip from a two-lane way on which southbound traffic travels. The median strip is several feet wide.

Eastridge Street is a comparatively narrow blacktop roadway running in a general direction of East and West. Its two-way traffic is separated by a yellow stripe down the middle of the street. There are stop signs facing Eastridge Street on the west and the east boundary lines of Skillman Avenue. There is no stop sign at the median strip.

On the occasion in question appellee was operating his 1955 model dump truck, loaded with gravel, in a northerly direction on Skillman Avenue. There was some testimony that he was going about thirty-five miles per hour, but the testimony in general on that point is not definite, though it is to the effect that his speed was less than the forty-five miles per hour speed limit in effect at this point on Skillman Avenue.

Appellant’s 1944 model bus, a chartered vehicle, was carrying about sixty school children. It was traveling in an easterly direction on Eastridge Street. It had stopped at the stop sign facing Eastridge Street. Following the stop the bus began its movement across Skillman Avenue. It proceeded straight across at a slow, steady pace of five to seven miles per hour. It neither slowed down nor accelerated its speed. It did not stop at the median strip hefore proceeding into and across the eastern half of Skillman Avenue. The driver •of the bus testified that he had “floor boarded” the acceleration pedal but the bus would not pick up speed. He testified that he had time to make it across the intersection ahead of appellee’s oncoming truck.

Appellee’s truck had rounded a curve at the top of a hill estimated to be about 1000 feet from the intersection. The testimony is not clear as to how far he was from the intersection when he first saw the bus. He •saw appellant’s bus start out across the intersection. He began honking his horn. He thought that the bus would stop at the median strip. When he realized that the bus was going to continue on across into the lanes for northbound traffic on Skillman he not only honked his horn but applied his brakes. His tires left skidmarks approximately 43 feet long.

When appellee saw that a collision was imminent he swerved sharply to the left in an effort to miss the moving bus by passing to its rear. This maneuver was successful. The truck narrowly missed the rear of the bus. However, when appellee attempted to •straighten out the course of the truck by ■swerving back to the right, the rear wheels of the truck struck the concrete curb of the median strip with the result that the truck turned over and appellee sustained injuries. The more serious injuries were to his shoulder and especially his leg. The truck was practically a total loss.

The bus continued on its way. Some of the children told the bus driver that the truck had turned over. They wanted the driver to stop the bus so they could go back to the scene of the overturned truck. The bus driver declined to stop the bus. He did not stop until he reached Abrams Road, the next regular scheduled stop, some distance east of Skillman Avenue. He testified that he did not learn- that the truck had turned over and appellee had sustained injuries until about one month after the accident.

The jury found that appellant’s bus driver was negligent (1) in failing to keep a proper lookout, (2) in failing to stop at the median strip, (3) in failing to yield the right-of-way, (4) in failing to apply his brakes, and (5) that appellant was negligent in permitting the operation of the bus when it would not accelerate to an increased speed when crossing the intersection. Appellant does not challenge the above findings, Nos. (1), (2), (3) and (4). Each act of negligence was found to be a proximate cause of the accident. All contributory negligence issues and an issue on unavoidable accident were answered in favor of ap-pellee.

OPINION: I. JURY MISCONDUCT

In its first point on appeal appellant alleges jury misconduct in that one or more of the jurors discussed (1) attorneys’ fees and (2) insurance; and (3) one of the jurors told of his personal experience and gave expert testimony to the jury on the subject of future medical expenses because of the possibility of cancer developing from appellee’s injured leg.

At the hearing on the motion for new trial appellant offered the testimony of only one juror, Henry M. McRae. He testified that the foreman, S. E. Jones, said that ap-pellee would not get all the money — that attorneys usually got a fee of one-half, one-third or one-fourth of the recovery. McRae testified that there was quite a discussion on this subject, everyone talking and the discussion was audible to all jurors; and that the jurors were not rebuked for discussing the subject.

As to the insurance, McRae testified that two of the jurors in arguing with him asked him what he was arguing about — he wasn’t the one who would have to pay it. To which McRae replied that they would all have to pay it from now on, and two of the jurors agreed that “definitely insurance would — the insurance rate, we would still have to pay it.” As to whether these statements were made in the presence of all the jurors McRae stated, “Well, that was figured in what I said earlier provided it wasn’t all going to all go to Mr. Newman, * * *>>

In regard to increased medical expenses in the future due to cancer which might develop McRae testified that a juror named Bolton said that he knew of a person who thought his injured leg was well, but afterward he developed cancer in that leg, and “they tied the cancer in the leg to the accident that had happened.” When asked whether this statement was heard by all the jurors McRae testified, “Oh, sure, it was heard.” He testified also that no one rebuked Bolton for making the statement.

In rebuttal appellee offered the testimony of two jurors. The juror Jack Redding testified that as a group the jurors did not discuss attorneys’ fees. As to whether there was anything mentioned about attorneys’ fees Redding testified, “Not to my knowledge.” He was asked whether he recalled anyone mentioning insurance. He replied, “Not to my knowledge, no, sir.” There was no discussion by the jury as a group about insurance.

With reference to any discussion of cancer of the leg Redding testified that the jury did not discuss it as a group. If there had been he would have remembered it. If it was mentioned at any time he did not hear it.

S. E. Jones was foreman of the jury. He testified that at one time someone said he wondered what the attorneys were going to get out of this and Jones, as foreman, answered, “I must admonish you on this point; we must only consider the evidence that we have, and the attorney’s fees are not evidence here.”

As to whether there was any mention of insurance Jones testified, “Not to my knowledge.” He didn’t remember the word “insurance” even being brought up; if it had been mentioned he thought he would remember it. It could have been mentioned.

When asked about the alleged discussion in regard to whether cancer might develop in appellee’s injured leg, Jones said that to his knowledge there was no mention of it There was deliberation about damage to the lymph gland in appellee’s leg. (There was medical testimony in support of lymph damage.) Jones admitted that it was possible someone may have mentioned cancer, but it wasn’t brought out in the deliberations as far as he could remember.

In passing on the question of jury misconduct there are two fundamental rules to be applied: (1) if the evidence is conflicting as to whether the alleged act of misconduct actually occurred, a fact issue is raised and the finding of the trial court is binding on the appellate court; and (2) if misconduct occurred a new trial will be granted only in the event it reasonably appears from the record of the whole case that injury probably resulted to the complaining party. Barrington, et al. v. Duncan, 140 Tex. 510, 169 S.W.2d 462; State v. O’Dowd, 158 Tex. 348, 312 S.W.2d 217; Younger Bros., Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546; Taylor v. Dallas Transit Co., Tex.Civ.App., 351 S.W.2d 554; Welsch v. South Texas Construction Co., Tex.Civ.App., 373 S.W.2d 123.

In applying the above rules to the record in this case we have reached the conclusion that reversible error is not shown because of alleged jury misconduct.

The record indicates that attorneys’ fees were mentioned. There was a conflict in the testimony as to whether the foreman admonished the jury not to consider the subject. We must presume that the trial court made implied findings which support the judgment. Higginbotham v. O’Keeffe, Tex.Civ.App., 340 S.W.2d 350, 357. Therefore, we presume that the foreman did admonish the jury. That being so we cannot say that the mention of attorneys’ fees probably harmed appellant. There, is no evidence that the subject was mentioned after the admonition, and we cannot say that mention of it influenced the jury in its verdict. Aetna Casualty Co., v. Perez, Tex.Civ.App., 360 S.W.2d 157; Kendall v. Southwestern Public Service Co., Tex.Civ.App., 336 S.W.2d 770; Trice Contract Carpets & Furniture Co. v. Gilson, Tex.Civ.App., 329 S.W.2d 476, 482; City of Fort Worth v. Estes, Tex.Civ.App., 279 S.W.2d 687; J. D. Wright & Son Truck Line v. Chandler, Tex.Civ.App., 231 S.W.2d 786; McCullough Box & Crate Co. v. Liles, Tex.Civ.App., 162 S.W.2d 1055.

As to insurance the testimony of McRae and Redding is in conflict at least as to whether there was any discussion of insurance by the jury as a group. Redding did not explain exactly what he meant when he said, “Not to my knowledge, no, sir.”

Apparently the discussion, if there was one, was an argument in which it was agreed that a large verdict might result in an increased insurance rate. Such an argument could hardly be injurious to the defendant, appellant here. The subject so far as the record shows, was referred to only the one time.

In this connection we must point out that insurance was indirectly referred to in the trial by one of the witnesses, Nathan David Haberman, a school boy fifteen years of age, who was a passenger on appellant’s bus. On cross examination by appellant this witness testified as follows:

“Question: Nathan, I guess — was it Mr. Russell Smith with this law firm here that came out and talked to you at first about the accident?
"Answer: No, it was an English gentleman from — I think it was from an insurance company.
“Question: All right; was that the truck insurance?
“MR. BADER: If the court please, we object to any statement with reference to who or what it was.
“THE COURT': All right, I sustain the objection.
“Question: Well, in any event, after the English gentleman left — nobody from the bus company has talked to you, have they?
“Answer: No, sir.
“Question: Now, did Mr. Russell Smith then come around and talk to you, Mr. Newman’s lawyers?
“Answer1: No, sir.
“Question: Who was it that came and talked with you ?
' “Answer: The only person that talked to me about the wreck was the English gentleman from the insurance company.”

It will be observed that objection was at first made by appellee and sustained as to “who or what it was” in regard to the above testimony. Nevertheless, appellant for a second time asked the question which again elicited the answer that the person who talked to the witness was “the English gentleman from the insurance company.” No objection was made to this second reference to insurance. No request was made for the court to instruct the jury to disregard the reference to insurance. No motion to declare a mistrial was made. The statement stands unchallenged in the record. It was before the jury.

'We do not say that the voluntary reference to insurance by the witness on cross examination gave the jury a license to discuss insurance in their later deliberations. But the statement elicited for the second time by appellant without objection or challenge seems almost to pave the way for the jury to mention the subject. Certainly the circumstances tend to weaken appellant’s position now in claiming reversible error because insurance may possibly have been mentioned in the jury room.

Under the circumstances and in the light of the record as a whole we cannot say that ■the reference to insurance in the jury; room, if it occurred, constituted reversible error, or that it reasonably appears that such reference to insurance probably resulted in harm to appellant. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493; Walker v. Thompson, Tex.Civ.App., 287 S.W.2d 556.

With respect to the alleged reference to cancer in connection with the jury’s deliberations concerning future medical expenses we again find conflict in the evidence as to whether there was a group discussion of the subject or whether the comment, if it was made, was heard by all the jurors. In any event, we think it does not constitute reversible error. The jury’s finding of future probable medical expenses was $3,000. The court required and appellee agreed to a remittitur of $2,500. This cured the error if there was error originally in regard to future medical expenses.

Appellant’s first point on appeal is overruled.

OPINION: II. OTHER POINTS ON APPEAL

In its second point on' appeal appellant asserts that the jury’s answer to Special Issue No. 15 is contrary to the evidence and is so against the overwhelming weight and preponderance of the evidence as to show bias, prejudice and passion resulting in manifest injustice.

Special Issue No. 15 inquired whether appellee “failed to timely apply the brakes on the truck in question.” The jury answered “No.”

It is undisputed that appellee did apply his brakes. The skidmarks of the truck’s tires extended for 43 feet. Appellee testified that he began applying his brakes farther back than the point where the skid-marks began. The witness Haberman testified that the truck started slowing down about 100 feet “down the road” and “— well, he slowed down faster than I would say a car slowed down * * * ” Appellant’s second point is overruled.

In its third point appellant contends that the court erred in the submission of Special Issue No. 12 because same “constituted a comment upon the weight of the evidence highly prejudicial to the defendant and was without support in the evidence.”

The jury found in answering Special Issue No. 12 that it was negligence for appellant to permit the operation of the bus when it would not accelerate to a greater speed than it did when crossing the intersection.

The evidence is undisputed that the bus slowly proceeded across the street at a speed of five to seven miles per hour and that it did not accelerate its speed. Appellant’s driver himself testified that he “floor boarded” the acceleration pedal but the bus would not respond. It was a 1944 model bus which had traveled more than a half million miles as shown by the undisputed evidence. It is not a comment on the weight of the evidence for the court in wording an issue to accept as established a fact which is supported by the undisputed evidence of the witnesses, including the complaining party’s chief witness. The jury’s answer that it was negligence for appellant to permit operation of the bus under the circumstances is amply supported by the evidence. Appellant’s third point is overruled.

Appellant’s fourth point charges that the jury’s answer to Special Issue No. 22-B is so grossly excessive as to show bias, prejudice and passion and is without support in the evidence notwithstanding a remittitur of $2,500.

The jury in answering Special Issue No. 22-B found that $3,000 would reasonably compensate appellee for future doctor and medical bills.

Dr. Waggoner’s bill was only $76 to the date of the trial. There was in addition a bill for $40 for x-ray pictures taken by Dr. Waggoner’s direction- — a total of $116. Tlie bill for Dr. Graham’s treatment during the first nine weeks after the injury is not shown. The record does show that in connection with his treatment of appellee Dr. Graham also caused x-rays to he made. The evidence is that appellee will require future medical treatment and will have to make periodic trips to see a doctor. The length of time over which this future treatment might extend was uncertain and indefinite.

We would sustain this point on appeal were it not that we are convinced that whatever error there was in the jury’s answer was cured by the remittitur of $2,500, leaving a recovery of only $500 for future medical and doctors’ bills. Because of the remittitur we overrule appellant’s fourth point.

In its fifth point appellant attacks the jury’s answer to Special Issue No. 22 on the ground that the amount found as damages, $21,500, is so grossly excessive as to show bias, prejudice and passion on the part of the jury.

The court instructed the jury that in answering the issue it might take into account (a) physical and mental pain, if any, to the time of the trial; (b) probable physical pain and mental suffering in the future, if any; (c) loss of earnings, if any, in the past; and (d) probable diminished capacity to labor and earn money in the future, if any.

The evidence is to the effect that appellee suffered a wrenched shoulder, a hurt leg, a cut on his hand, two cuts on his head and bruises on both hips, both sides and practically all over his body. At the trial appel-lee testified that all his injuries had healed except those to his shoulder and his leg. He still bears a scar on his head.

On the day he was hurt, May 21, 1962, he went to see Dr. Graham at the Dallas Medical & Surgical Clinic. He remained there an hour and a half. X-rays were taken. He was given whirlpool and sonic heat treatments. After about nine weeks ap-pellee changed to Dr. Waggoner because Dr. Graham’s treatment did not seem to help his leg. Dr. Waggoner diagnosed his leg trouble as lymph damage and impaired drainage from the leg. He prescribed “rest, that is, no weight bearing on this extremity for awhile; hot soaks; elevation of the extremity; a support type stocking; and certain drugs which tend to cut down inflammation or swelling.” Later Dr. Waggoner took x-rays of appellee’s leg. At the time Dr. Waggoner first saw him appellee was not able to perform work as a truck driver. The doctor had seen appel-lee eight times up to the time of the trial. In about three months the doctor had ap-pellee back on light duty. Appellee still complains that if “at any time he stays on this extremity to work or to drive his truck, or any other activity of any strenuous nature at all, he has a recurrence of swelling and pain in his right leg.” This complaint is consistent with the doctor’s findings on examination. In the doctor’s opinion there has been “some improvement” since he first saw appellee, though not as much as he had hoped. The doctor felt that appellee will have further trouble with his leg for approximately another year and will be needing to see a doctor during that time. And after a year he likely will continue to have “flare-ups” from time to time if he puts a lot of stress and strain on the leg.

Appellee was off from work from May 21, 1962 until July 29, 1962. Since then he has missed from one to two days a week from his work. Several witnesses testified that on occasion when they saw him appel-lee gave indications of being in pain.

At the time of his injury appellee was forty-five years old. He owned his own dump truck and was in business for himself hauling dirt, gravel, sand, etc. His injury occurred at the best time of the year for his work. His gross earnings would run from $800 to $1,100 per month. Now when ap-pellee works he tries to keep his leg elevated by propping it against the truck panel. He is often unable to sleep and his wife has to put hot and cold compresses on his leg to alleviate the pain.

Several witnesses testified that appellee since his injury has walked and still walks with a limp.

We need cite no authorities to support us when we say that we are not permitted to set aside the finding of the jury as to the amount of the damages merely because we probably would have found a lesser amount had we been sitting as a jury. In the face of the record before us we cannot say that the jury’s finding is so grossly excessive as to show bias, prejudice and passion on the part of the jury.

Appellant’s fifth point is overruled.

The judgment of the trial court is affirmed.

Affirmed.


text:
    The STATE of Texas, Appellant, v. ACEL DELIVERY SERVICE, INC., Appellee.
    No. 16349.
    Court of Civil Appeals of Texas. Dallas.
    May 29, 1964.
    Rehearing Denied July 10, 1964.
    Waggoner Carr, Atty. Gen., and Norman V. Suarez and Sam Kelley, Asst. Attys. Gen., Austin, for appellant.
    Phinney, Hallman & Pulley, Dallas, for appellee.

      : G.; S,-Ludwick, ■ doing business as Republic Truck Line, Cliff Delivery Service, Co-operative Delivery Service, Direct Delivery Service, Lovedale Cartage Co., P & M Delivery Service and Texas Delivery Service, Inc., amici curiae.
   DIXON, Chief Justice.

The State of Texas has appealed from an adverse judgment in its suit against appellee Acel Delivery Service, Inc., in which suit the State sought to collect penalties and to obtain an injunction because of the alleged violation by appellee of the Texas Motor Carrier Act — in particular Arts. 911b, Yernon’s Ann.Civ.St. and 1690b, Vernon’s Penal Code. In addition to briefs filed by appellant and appellee amicus curiae briefs have been filed supporting and attacking the trial court’s judgment.

The issue, as appellant puts it, “is whether motor carrier operations for hire between contiguous incorporated cities, towns and villages are subject to the Texas Railroad Commission, even though in the course of the journey from one city to another nó unincorporated areas are traversed.”

So far as intrastate- traffic is concerned appellant would have us interpret the Texas Motor Carrier Act to authorize the Railroad Commission of Texas to regulate the transportation of property for hire over any public highway in the state with only two exceptions: (1) the Commission would not be authorized to regulate operations exclusively within the limits of an incorporated city, town or village; (2) nor would the Commission be authorized to regulate operations from an incorporated city, town or village to a rural area where such operation does not pass into or through another incorporated city, town or village.

FACTS

The material facts have been stipulated. Acel Delivery Service, Inc. has its principal office and place of business in Irving, Dallas County, Texas.

- We believe it well to quote a portion of Section III’ of the stipulations:

“The Defendant has been operating between Dallas and incorporated cities and towns adjacent and contiguous to the City of Dallas and to each other, performing a strictly local service between such contiguous communities as well as what might be termed a local pick-up and delivery service, both picking up and delivering freight for hire. The communities in which it operates include the cities of Dallas, Grand Prairie, Irving, Mesquite, Garland, Farmers Branch, University Park, Highland Park, Richardson, all of which are incorporated municipalities whose boundaries are contiguous to Dallas, as well as Carrollton, which is contiguous to Farmers Branch, and Arlington, which is contiguous to Grand Prairie, and Fort Worth, which is contiguous to Arlington.
“Heretofore, on three separate days, Defendant transported drugs for Scher-ing Corp. for compensation or hire between incorporated cities, towns and villages whose city limits are contiguous without having obtained either a Certificate of Public Convenience and Necessity or a permit from the Railroad Commission of Texas to transport such commodities. In the performance of said transportation, Defendant did not at any time traverse a highway which is not included within the corporate limits of an incorporated city or town.”

More specifically appellee transported for hire drugs for Schering Corp. (1) from Dallas, Texas to a drug store in University Park, Texas, a city which is completely surrounded by the City of Dallas; (2) from Dallas, Texas to Garland, Texas, a city whose city limits are contiguous to Dallas; and (3) from Dallas, Texas, through Grand Prairie, Texas, whose limits are contiguous to the limits of Dallas, through Arlington, Texas whose city limits are contiguous to the limits of Grand Prairie, Texas, but not to Dallas, Texas, to Fort Worth, Texas, whose city limits are contiguous to the limits of Arlington, Texas, but not to Grand Prairie, Texas or Dallas, Texas. All the cities involved are in Dallas County except Arlington and Fort Worth, which are in Tarrant County.

We quote a part of Section V of the stipulations:

“Until about 1953, only the Cities of Highland Park and University Park were contiguous to the City of Dallas. In 1954, other towns began to grow until their boundaries were contiguous with those of the City of Dallas, so that at present the boundaries of Grand Prairie, Irving, Mesquite, Garland, Farmers Branch, University Park, Highland Park and Richardson, all of which are incorporated municipalities, are contiguous to Dallas, and the boundaries of the City of Carrollton are contiguous to Farmers Branch, and the boundaries of the City of Arlington are contiguous to the City of Grand Prairie, Texas, and the boundaries of Fort Worth are contiguous to the City of Arlington. From about 1954 until about 1956 local delivery service carriers were permitted to travel from town to town in Dallas County if the city limits of the towns touched anywhere regardless of whether the actual route they traveled was partly on a public highway. This was in accordance with the interpretation expressed in a letter written by Bryan Bell, Director, Motor Transportation Division, Railroad Commission of Texas. About 1956, following a -conference in Austin, Chief Odom of the Department of Public Safety, directed Captain Law, License and Weight Captain of Region, of the Department of Public Safety, Dallas, to enforce the Texas Motor Carrier Act, Article 911b, Vernon’s Annotated Civil Statutes, and Article 1690b, Texas Penal Code, as to carriers going from Dallas .to other cities unless the carriers were always actually within the city limits of one of the contiguous cities. The law was enforced in that manner until December 20, 1957, when the Attorney General of Texas issued an opinion to the effect that a carrier is subject to The Texas Motor Carrier Act if he travels from one incorporated town to another even if he does not travel any open road or highway between towns.”

We quote a portion of Section VII of the stipulations:

“It is further stipulated and agreed that Mr. Bryan Bell of Austin, Travis County, Texas, if called to the witness stand, would testify as follows:
“That his name is Bryan Bell and that he was the Director of the Motor Transportation Division of the Railroad Commission at Austin, Texas, from July, 1945, until October, 1960. That prior to his appointment as Director of the Motor Transportation Division, he was the insurance expert in the Motor Transportation Division of the Railroad Commission. That from the time of his appointment as Director of the Motor Transportation Division of the Railroad Commission, he had been instructed orally by the Railroad Commission of Texas to advise any interested party that if the operations of a motor carrier for hire were conducted within the city limits of cities, towns or villages that were contiguous, it was the oral opinion of the Railroad Commission of Texas that no authority was required to be secured from the Railroad Commission of Texas to conduct such operations, and that the Railroad Commission of Texas disclaimed any jurisdiction over operations conducted between cities, towns and villages whose city limits were contiguous to one another.
“Mr. Bell would further testify that based.upon his personal knowledge of the records of the Railroad Commission since the date of his employment, the Railroad Commission of Texas has given the same interpretation to the provisions of the Texas Motor Carrier Act, Article 911b, V.A.C.S., Section 1(g) from the time of its passage in 1931 and did not regulate transportation between cities, towns and villages whose city limits are contiguous. On December 20, 1957, an Attorney General’s opinion was issued expressing the opinion that such transportation was within the terms of Article 911b, V.A.C.S.
“Subsequent to the opinion of the Attorney General on December 20, 1957, that such transportation is subject to the certificate provisions of Article 911b, several carriers have applied for and been granted Certificates of Public Convenience and Necessity authorizing operations within the incorporated limits of contiguous cities and towns and no appeal has been taken from any of such orders. There are many other carriers, including plaintiff, who have not sought such authority but have continued to operate within the incorporated limits of cities and towns contiguous to each other.”

From time to time beginning June 21, 1955 the Railroad Commission of Texas has promulgated orders, nine in number, setting rates for transportation of vegetables, pulpboard, cans, noi, can tops, per-lite, paper articles and sodium hypochlorite solution from various towns to certain specified points, some of which are those named herein. Several orders were also promulgated extending terminal areas specified in previous orders. The last of these orders was promulgated October 24, 1961.

OPINION

In three points on appeal appellant contends that the trial court erred (1) in holding that appellee’s vehicles, operated wholly within the incorporated limits of contiguous cities or towns, are not subject to the regulatory provisions of Art. 911b, V.A.C.S., and (2) in holding that appellee has a full right and legal authority, without a certificate of public convenience and necessity from the Railroad Commission, to continue its business of transporting freight by motor vehicle for hire from one incorporated city, town or village to another incorporated city, town or village where such municipalities are contiguous; and (3) in denying appellant’s prayer for penalties and refusing to issue a writ of injunction restraining appellee from further violation of the Motor Carrier Act as prayed.

We have concluded that all three-of appellant’s points should be overruled' and the judgment of the trial court should' be affirmed.

Art. 911b, Sec. 1(g), V.A.C.S. which we-are called on to interpret, is as follows:

“(g) The term ‘motor carrier’ means any person, firm, corporation, company, co-partnership, association or joint stock association, and their lessees, receivers or trustees appointed by any Court whatsoever owning, controlling, managing, operating or causing to be operated any motor-propelled vehicle used in transporting property for compensation or hire over any public highway in this State, where in the course of such transportation a. highway between two or more incorporated cities, towns or villages is-traversed; provided, that the term' ‘motor carrier’ as used in this Act shall' not include, and this Act shall not apply to motor vehicles operated exclusively within the incorporated limits of cities or towns.”

In our opinion the language of Section 1(g) itself lends support to our holding. The first part refers to transportation where “a highway between two or more incorporated cities, towns or villages is-traversed; * * The word “between”' as used in the above statute seems to us to-mean and require an intervening space between cities. Black’s Law Dictionary (1951), p. 203. The word “between” as here used does not seem to us to be in any way similar to the word “contiguous”, or the word “continuous”.

In Texas Turnpike Authority v. Sheppard, 154 Tex. 357, 279 S.W.2d 302, 307 our Supreme Court did not have before it the question which is now before us. In the above case it was held that the word “between” as used in the Act creating the Turnpike Authority, Art. 6674, V.A.C.S., is not used in an exclusionary sense, but the word rather designates the termini of the route. However, the Supreme Court did say the word “between” “usually denotes an intervening space or distance between two objects and has the effect of excluding the boundaries.” It is the latter meaning which we believe the Legislature intended in this case.

To make doubly sure of its intention the Legislature included a proviso clause in Section 1(g) of the Act. This clause expressly provides that the term “common carrier” shall not apply to “motor vehicles operated exclusively within the incorporated limits of cities or towns.” The statute uses the plural, “cities or towns” — it does not say within the corporate limits of “a city or town.”

We think our interpretation of Section 1 (g) is consistent with the provisions of the Motor Carrier Act as a whole and with the provisions of other statutes. The Act, as appellant admits, does not attempt to give the Railroad Commission regulatory powers over transportation moving from an incorporated city over a highway into an unincorporated rural area “where such service does not pass into or through another incorporated city or town.” But if we were to accept appellant’s whole interpretation, the Railroad Commission would take over exclusive control of such transportation the minute the unincorporated area should change and become an incorporated municipality contiguous to its incorporated neighbor. We do not believe the Legislature had any such intention.

Sec. 10 of Art. 911b requires an applicant for a certificate of convenience and necessity to accompany his application with a map delineating the complete route or routes over which the applicant desires to operate, together with the description of each vehicle which the applicant intends to use. Also there must be included a proposed schedule of service and of rates to be charged. The Railroad Commission,, if it grants the application, may then prescribe routes, rates, etc. for the applicant. Thus if a department store in Dallas,, Texas chose to employ a local delivery service to deliver merchandise to a residence in University Park, Texas such local delivery service would be subject to the above regulations, though the City of University Park is entirely surrounded by the City of Dallas.

We call attention also to other statutes which give Home Rule Cities exclusive power and dominion over the public highways within their boundaries. Art. 1175, Secs. 12, 16, 20 and 21, V.A.C.S. General Law Cities are given exclusive control over their streets. Art. 1016, V.A.C.S. Under these statutes a vehicle transporting property for hire from Dallas to Highland Park, or any other contiguous city, is under the exclusive control of the City of Dallas, as long as it is in the City of Dallas and under the exclusive control of the City of Highland Park or any other contiguous city after it enters into the confines of Highland Park, or some other contiguous city.

If we were to give Art. 911b, Sec. 1(g) the interpretation for which appellant contends we would raise a conflict between Art. 911b, Sec. 1(g), V.A.C.S. and Arts. 1175 and 1016, V.A.C.S. above cited. It is a well established rule that as between two possible interpretations, one of which would raise a conflict between statutes while the other interpretation would harmonize and reconcile the statutes, the latter interpretation should be accepted. Freels v. Walker, 120 Tex. 291, 26 S.W.2d 627; Town of Griffing Park v. City of Port Arthur, Tex.Civ.App., 36 S.W.2d 593, 596; Dallas Railway & Terminal Co. v. Strickland Transp. Co, Tex.Civ.App, 225 S.W.2d 901, 905. The Legislature plainly sought to avoid any such conflict, for in Art. 911b, Sec. 2 it is expressly provided as follows:

“ * * * provided, however, that nothing in this Act or any provision thereof shall be construed or held to in any manner affect, limit or deprive cities and towns from exercising any of the powers granted them by Chapter 147, Pages 307 to 318, inclusive of the General Laws of the State of Texas, passed by the 33rd Legislature, or any amendments thereto.”

Appellee and certain amicus curiae contend that the Railroad Commission for many years has acquiesced in the interpretation which the trial court has given to Art. 911b, Sec. 1(g) in this case. In support of this contention they cite the statement of Bryan Bell, formerly Director of the Motor Transport Division of the Railroad Commission; and they point out also that for a long time there was no attempt to enforce the Motor Carrier Act as appellant would construe it.

On the other hand appellant and certain amicus curiae contend that Bell’s oral orders are not official and that there has never been any official recognition of appel-lee’s contentions. In support of their view they call attention to the nine instances when application for certificates of convenience and necessity have been granted by the Commission. Appellant and amicus curiae also rely on the rule that mere failure to enforce a law does not relinquish the right or the duty to enforce it when violations are brought to the attention of the public officials charged with the duty ■of enforcement.

We do not base our holding here on the alleged interpretation which appellee says the Railroad Commission over the years has given to the Texas Motor Carrier Act with reference to the issue presented on this appeal. The most we can say in that regard is that the Railroad Commission has apparently not been certain as to the proper interpretation. We base our holdings on the other grounds which we have set out in this opinion.

Appellant’s points on appeal are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: LANGDON, Justice.

text:
    NIAGARA FIRE INSURANCE COMPANY et al., Appellants, v. NUMISMATIC COMPANY OF FORT WORTH et al., Appellees.
    No. 16532.
    Court of Civil Appeals of Texas. Fort Worth.
    June 26, 1964.
    Rehearing Denied July 17, 1964.

      Pannell, Dean, Pannell & Kerry, Fort Worth, Eastham, Watson, Dale & Forney, and J. P. Forney, Jr., Houston, for appellant Niagara Fire Ins. Co.
    Byrom, Wright, Butcher & Prager and Don Prager, Fort Worth, for ' appellant Eliot J. Cashdan and for appellee Numismatic Co. of Texas.
    Cantey, Hanger, Gooch, Cravens, Scarborough, and Sloan B. Blair, Fort Worth, for appellee The North River Ins. Co.
   LANGDON, Justice.

Suit upon a personal property insurance policy was brought by Eliot J. Cashdan against his insurer, North River Fire Insurance Company, to recover the value ($14,589) of a group of rare coins stolen by armed robbery. Combined with it was the suit of Numismatic Company of Texas, a corporation, d/b/a Ridglea Coin & Stamp Mart, against its insurer, Niagara Fire Insurance Company, to recover for the identical loss. In order to determine under which policy the loss fell, the question for decision is whether the coins were owned by Cashdan individually, or by Numismatic Company of Texas, at the time of the robbery. The district court, trying this case without a jury, held that the coins were owned by Numismatic Company of Texas. Judgment was rendered that Numismatic Company of Texas recover against its insurer Niagara Fire Insurance Company, and that Eliot J. Cashdan take nothing by reason of his suit against his insurer, North River Insurance Company. Niagara and Cashdan appeal.

Since there are two appellants and two appellees involved in this litigation we will for convenience hereafter refer to Eliot J. Cashdan as Cashdan; Numismatic Company of Texas, as Numismatic; North River Fire Insurance Company, as North River; and Niagara Fire Insurance Company, as Niagara.

North River insured coins owned by Cashdan individually. Niagara insured the corporation, Numismatic, against the loss of its property.

Numismatic sought and obtained recovery as owner of the stolen coins. The district court held that a sale of coins from Cashdan to Numismatic occurred before the robbery. If Numismatic owned the coins Niagara concedes that its policy covered the loss. If the coins remained the property of Cashdan, the loss is covered under the North River policy.

Appellant Niagara appeals such judgment on the ground that the coins remained the property of Cashdan. The broad question presented by Niagara’s appeal is: Did Numismatic own the coins at the time they were stolen?

The facts are virtually uncontested. Cashdan was, and is, a full time executive in the retail shoe business and a private collector of rare coins. In September of 1961 his “hobby” as a collector of coins became so time consuming that he formed a corporation, Numismatic. Thereafter, Eddie Ross Parrish, secretary and treasurer of the corporation, and manager of the coin store owned and operated by Numismatic, became a shareholder. At about that time, Mike Brownlee, an outside salesman employed by Numismatic, became a shareholder.

Cashdan was, and is, president of Numismatic. He draws no salary. He did not “run said business”. He was not active in its management, and he did not work in the store. He acted only in an advisory capacity. He pleaded in his second amended original petition that he “maintains strict observance of the corporate entity”. He so testified. Parrish managed the coin store and “runs the business”.

Several weeks before the robbery in question, Cashdan mentioned to Parrish that he was going to transfer an unidentified amount of coins to the corporation. No objection was voiced. These coins were to be sold at a coin convention in Detroit in order to place Numismatic in a more liquid condition and thus of benefit to it. These coins were not identified; their total value was not discussed; the terms of the proposed transfer were not discussed. Parrish did not know until after the robbery, that Cashdan was asking $3,-000.00 in cash, and the rest in shares of stock. Cashdan admits that he “had not definitely decided quantities or items”. He did not know himself exactly how much cash he was going to ask for. It was the morning of the robbery, August 12, 1962, a Sunday, that he decided.

Early on that morning Cashdan took the coins from his home safe. He then and there listed such coins in the letter he wrote to Mike Brownlee. Niagara contends that such letter was an offer to sell the coins listed for the price and upon the terms stated therein. Cashdan considered it an “invoice”. He listed the individual prices of these coins, and the total value thereof at $14,589. He placed one copy of this letter in an ammunition box with the coins. He kept the original and one copy.

Cashdan arrived at the store in the Ridg-lea district of Fort Worth that Sunday morning. He found Parrish and two store employees had arrived shortly before. They were preparing coins to be taken to a coin show or bourse, being held that same day in Fort Worth at the Texas Hotel. Cashdan set the ammunition box of coins on the floor of the store. He handed Parrish either a copy or the original of the letter, saying, in substance, “Here are the coins to go to Detroit, and here is the list”. There was no discussion as to the identity, or value of the coins at that time or what Cashdan expected to receive for them.

Parrish did not look in the box. He does not know of his own knowledge what was in the box. Parrish did not read the letter. He merely threw it on his desk. He did not read it until after the robbery. According to Parrish he had no opportunity to examine or to set any value on the coins. He did not look at the letter until about an hour after the robbery, when Cashdan arrived in response to his notification. Nobody employed by Numismatic knew the contents of the letter until after the robbery except Cashdan, its president.

Parrish put the box on a back counter before he left the store for the Texas Hotel with Cashdan and other employees. Cash-dan remained at the hotel until about 5 :00 p. m., then went home. Parrish, alone, brought the coins back to the store shortly after 7:00 o’clock that night. He parked in front of the store, turned off the burglar alarm, and unlocked the front door. He went to the rear of the store and turned on the lights. As he returned to the front to go out to his car, he was met by two men, one of which was armed. He was forced into the back room of the store. The bandits took store merchandise worth $600.00, and the ammunition box involved herein and its contents. (Niagara does not contest the judgment in so far as the $600.-00 in store merchandise is concerned. This part of the judgment has been paid without prejudice because it is undisputed that Numismatic was the owner of such coins).

Cashdan admitted that the prices had to be agreed to by Parrish as manager for Numismatic; that Cashdan’s own evaluation was not final; that the prices were subject to readjustment; that Parrish “had to be satisfied”. He and Parrish had disagreed as to the evaluation of coins before. On past occasions they were able to reach an agreement on values. Parrish likewise testified that such transfers were subject to his agreement, and that if the values were not, in his opinion proper, they would be readjusted. Parrish said he would have checked the list, the coins, and ascertained their value if he had had the chance.

Cashdan testified that, as far as he was concerned, ownership passed to Numismatic immediately upon his delivery of the box to the store.

Niagara predicates its appeal upon six points of error which fall into two basic contentions. One is that the essential elements of a consummated sale were absent and the other that Numismatic, a corporation, lacked the authority to take title to the coins absent approval by its Board of Directors to issue stock in payment therefor. Additionally it contends that there is no evidence and insufficient evidence to support the findings of the court that ownership of the coins had changed from Cash-dan to Numismatic. We affirm.

On the first contention all of Niagara’s authorities deal with instances in which either the buyer or seller is attempting to avoid the sale, thus bringing into question such matters as offer, acceptance and meeting of the minds. Although these are matters which may be legally significant as between the parties to the sale, they are not matters that are open to question by a stranger such as Niagara. Niagara contends that “Nobody employed by Numismatic knew the contents of the letter until after the robbery”, and that “No one representing Numismatic agreed to buy the coins.” Niagara overlooks the fact that Cashdan was “employed by Numismatic” as its President, and he “knew the contents of the letter”, and that he “representing Numismatic agreed to buy the coins”.

It is apparent from the record that Cashdan in delivering the ammunition box containing the coins to the store did all that was required of him to consummate the sale between him and Numismatic. As a general rule, a sale is regarded as being executory until the seller has done whatever is necessary to give the buyer the right of possession. SO Tex.Jur.2d 360. The coins were clearly accepted by Parrish based upon his acts and his testimony to this effect. Since there was a delivery and acceptance it is assumed the parties intended title to pass. Owens v. Daniel, 16 S.W.2d 306 (Waco Civ.App., 1929, Dism.).

Niagara argues that Cashdan, individually, could not deal with the corporation represented by himself. Niagara finds it difficult to conceive that Cashdan could effect a change in ownership “in his own mind and between his own shoulders”. Niagara cites no authority in support of any such position.

The question of intent is always a prime consideration in determining the validity of a contract.

It is unusual in this case that the parties to the transaction insist that a sale of the coins was intended. A third party, Niagara, contends otherwise. It contends that since price was not agreed upon the sale was not completed. Generally, in the absence of an agreed price the sale is upheld on the implied promise to pay a reasonable price or market price if same is ascertainable. Paschal v. Hart, 105 S.W.2d 337 (Waco Civ.App., 1937, no writ hist.); Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101 (1923); Burger v. Ray, 239 S.W. 257 (Dallas Civ.App., 1922, Dism.).

The orthodox rules and the authorities cited by Niagara in support thereof are the rules which have been established to ascertain the intent of the parties. Since there is no dispute between the parties as to their intent the rules have no application to the facts of this case. The clear and unmistakable intention of the parties is controlling. Republic Building & Loan Ass’n v. Simpson, 77 S.W.2d 1101 (El Paso Civ.App., 1935, Dism.).

It would be strange indeed, in the absence of fraud, to find no sale between two parties one of whom vigorously insisted it was his intention to sell and the other with the same vigor insisting it was his intention to buy.

On at least two prior occasions these same parties had handled sales in the same manner. A contract of sale made in contemplation of an established usage or practice among buyers and sellers will be construed in connection with such usage and practice. This is particularly applicable as between Cashdan and Numismatic. 50 Tex.Jur.2d 374; Rosenstock v. Wheeler, 310 S.W.2d 350 (Houston Civ.App., 1958, Refused); Kerr v. Taylor, 317 S.W.2d 589 (San Antonio Civ.App., 1958, Dismissed).

In the two past transactions of a similar nature between these same parties there were minor disagreements as to value or “market price” which were resolved by arbitration after the sale took place. See also Taylor Oil & Gas Co. v. Pierce-Fordyce Oil Ass’n, 226 S.W. 467 (Austin Civ.App., 1920, no writ hist.).

Contracts wherein an officer of a corporation represents himself and the corporation are subject to close scrutiny by the courts and will be set aside if fraud or unfairness appears. This is Hornbook law. But here again the setting aside of the contract must be at the instance of the corporation. Even then the previous passage of title has already occurred. A court of equity simply sets it aside upon a showing of unfairness. The rule with respect to dealings between a corporation and its officers and directors is well stated in Vol. 3 of Fletcher Cyclopedia, Private Corporations, § 916, at page 336: “Without regard to whether the officer or officers dealing with the corporation were the principal or sole representative of the corporation in the transaction, of whether the corporation was represented wholly or principally by other officers, there are certain rules common to both classes of transactions, viz.:

“1. The transaction or contract is not void but is merely voidable, according to the great weight of authority. What is meant by this is merely that if no steps are taken to rescind or set aside the contract, it remains in force as a valid contract, although perhaps if application should be made to set it aside, the court would grant relief merely because of the relationship of the parties without regard to the fairness of the deal or the good faith of the parties.” And § 917 of the same volume states as follows: “Except for a few straggling cases, of more or less doubtful authority, it is well settled in nearly all jurisdictions including the federal courts, that transactions or contracts wherein a director or other corporate officer is interested adversely to the corporation are not void, but are merely voidable at the option of the corporation, unless such dealings are otherwise void as being in contravention of public policy.”

Moreover, such transactions are not open to the scrutiny of outsiders. Section 977, Fletcher, supra.

In the recent case of International Bankers Life Insurance Co. v. Holloway, 368 S.W.2d 567 (Tex.Sup.Ct., 1963), the court at page 576 of its opinion reiterated Texas’ adherence to the above rules in holding: “Contracts between a corporation and its officers and directors are not void but are voidable for unfairness and fraud, with the burden upon the fiduciary of proving fairness.”

In this case Niagara, a stranger to the transaction, not only has no standing to complain on the ground of self-dealing as between the corporation and Cashdan, but even if Niagara were permitted to assert the contention it here makes, there are at least two complete answers thereto: (1) the transaction would be merely voidable at the option of the corporation, and not void, so that nothing prevented the initial passage of title to the coins, and (2) the trial court has found as a fact that the transaction was fair and advantageous to the corporation, and has further found as a fact and as a conclusion of law that the corporation was not the alter ego of Cash-dan. These findings are amply supported by the evidence and are unchallenged by Niagara or by any other party hereto.

The second contention of Niagara is that passage of title could not occur without board action. The point is not whether the corporation was authorized to issue the stock in consideration of the coins. The question is whether there existed any inhibition upon the power of the corporation to take bare title to the coins. The authority cited by Niagara all relate to the authority of the corporation to issue its stock. Let us assume that A sells an article of personal property to a corporation for a consideration agreed upon by its president and, as here, delivers the property to the buyer corporation. Assuming other elements of the sale are present, title then passes to the corporation upon delivery of the property, and the fact that the corporation is later unable or unwiling to pay the consideration does not in and of itself affect the prior passage of title. Niagara confuses authority of the corporation to pay the price with the question of the passage of title.

And while it may be that a stock subscription must be accepted by the board of directors, it does not follow that bare title may not be taken by a corporation without board action. The cases and authorities cited by Niagara do not hold otherwise. In each of them the question before the court was one of value, and in each of them there was some complaint or disagreement within the corporation. Niagara cites nothing to support its contention that title may not pass to a corporation without board action. We find no authority for any such proposition.

In considering the no evidence points we have reviewed the evidence in its most favorable light in support of the findings of the trial court considering only the evidence and the inferences which support the findings and rejecting the evidence and the inferences which are contrary to the findings.

Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); 38 Tex. Law Review 361, No Evidence and Insufficient Evidence Points of Error.'

In connection with the point on sufficiency of the evidence we have considered and weighed all of the evidence in the case and have concluded that the findings of the court are not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

“In a nonjury case, the trial court is the judge of the credibility of witnesses and the weight to be given their testimony, and findings of the Court are entitled to the same weight and conclusiveness on appeal as the verdict of a jury.” 4 Tex. Jur.2d Appeal and Error — Civil, § 839, pp. 398, 399. See also pp. 399 to 405 of same text.

In view of what we have already said we see no necessity in discussing the points raised by the appellant, Cashdan as against North River. All points of error raised by Cashdan and Niagara are overruled and the judgment of the trial court accordingly affirmed.

Affirmed.


text:
    John L. DAVIDSON et ux., Appellants, v. V. R. CLEARMAN, Appellee.
    No. 16526.
    Court of Civil Appeals of Texas. Fort Worth.
    June 26, 1964.
    Rehearing Denied July 17, 1964.

      Gerald E. Stockard, Denton, Rawlings, Sayers, Scurlock & Eidson and Nelson Scurlock, Fort Worth, for appellants.
    Coleman & Whitten and Royce Whitten, Denton, for appellee.
   LANGDON, Justice.

V. R. Clearman, a contractor, appellee laerein, instituted suit against John L. •Davidson and wife, Jean, appellants, on a mechanic’s lien note ($28,750.00) signed by them on August 26, 1961, plus “extras” or changes less a $4,000.00 credit and fore- ■ closure of a mechanic’s lien contract of even date securing said note with 10% in'.terest from January 1, 1962, and $2,500.00 in attorney’s fees.

The appellants filed an answer and cross-action alleging appellee failed to perform, enumerating some 30 or more defects and omissions on his part, and sought damages for his failure to substantially complete the contract.

By trial amendment appellee in alternative counts sought (1) to recover the contract price plus “extras” less the amount reasonably necessary to remedy any defects and (2) the reasonable value of the materials furnished and labor performed by him less the $4,000.00 credit with 10% interest from December 26, 1961, attorney’s fees and foreclosure of the lien.

The mechanic’s lien contract involved herein covered “extras” or changes and contained the following provision: “It is further agreed that a failure to complete said improvements, or failure to complete the same according to contract, shall not defeat said indebtedness and lien, but in such case the indebtedness and lien upon said premises and improvements shall exist in favor of said party of the second part, his heirs and assigns, for said contract price, less such an amount as would be reasonably necessary to complete said improvements according to the said plans and specifications.”

The case was tried to a jury and judgment, based upon the jury verdict, was rendered by the court on August 30, 1963. It was in the amount of $23,150.00 representing $27,150.00 found by the jury to be the reasonable value of labor and materials furnished by appellee less the credit of $4,000.-00. It further provided for 10% interest on $23,150.00 from February 15, 1962, to the date of judgment amounting to $3,511.-00; attorney’s fees in the sum of $2,500.00 ; foreclosure of the mechanic’s and material-man’s lien; interest at 10% on $23,150.00 from date of judgment until paid and 6% interest on the $2,500.00 attorney’s fees from date of judgment until paid. The total judgment including $23,150.00, $3,511.00 interest and $2,500.00 attorney’s fees amounted to $29,161.00.

The appellants’ appeal is based upon thirteen points of error aimed chiefly at special issue No. 4 which the jury answered adversely to them. We affirm.

In answer to special issue No. 3 the jury found that the contract was not substantially performed by appellee and in answer to No. 4 that he was prevented from substantial performance by the acts and conduct of defendants or H. B. Portwood. (Mr. Portwood, father of Mrs. Davidson, was duly authorized to act as agent for appellants.)

Appellants contend that special issue No. 4 is not an ultimate issue, is too general, permits speculation by the jury and is not supported by the pleadings. They further contend by their brief that the issue should have inquired as to whether appellee was “wrongfully” prevented from substantial performance. Additionally appellants complain of the court’s failure to render judgment notwithstanding the jury’s answer to No. 4 and that it is not supported by any evidence and is contrary to the overwhelming weight and preponderance of the evidence.

In Kleiner v. Eubank, 358 S.W.2d 902 (Austin Civ.App., 1962, writ ref., n. r. e.), the court had under consideration an issue almost identical to the one here involved to which similar objections were made. Based upon that holding and authorities cited therein we are of the opinion that special issue No. 4 was properly submitted and under our examination of the record supported by the pleadings.

On the no evidence point we must consider the evidence which in its most favorable light will support the findings of the jury. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); Dillard v. Griffin, 341 S.W.2d 696 (Fort Worth Civ.App., 1960, writ ref., n. r. e.) ; Henderson v. Smith, 354 S.W.2d 429 (Fort Worth Civ.App., 1962, no writ hist.). In the application of this test we have concluded that the evidence supports the submission of and the jury’s answer to such issue.

In the light of the entire record we have concluded that the finding of the jury is not against the great weight and preponderance of the evidence but on the contrary is amply supported thereby.

The appellants further claim the court erred in awarding appellee (1) interest at 10% from February 15, 1962, (2) attorney’s fees, and (3) in adjudging court costs against them.

Rule 131, Texas Rules of Civil Procedure, provides the successful party to a suit shall recover of his adversary all costs incurred therein except where otherwise provided. Since the appellee was the successful party the court correctly assessed the costs against the appellants. Good cause to authorize the court to adjudge the costs otherwise than above provided was not shown. Rule 141, T.R.C.P.

The mechanic’s lien note sued upon provided for reasonable attorney’s fees. It was stipulated that $2,500.00 was reasonable. The appellants now contend that since appellee recovered judgment on a quantum meruit he cannot recover under the contract. That since he did not perform the contract he cannot maintain an action on any part thereof. We find no merit to this contention. See Harrop v. National Loan & Inv. Co., 204 S.W. 878 (Fort Worth Civ.App., 1918, refused), and Galbraith-Foxworth Lumber Co. v. Long, 5 S.W.2d 162 (Dallas Civ.App., 1928, writ refused).

The mechanic’s lien note and contract provided that all past due principal and interest on this note shall bear interest at 10% per annum. The contract contemplated completion of the house in 120 days which would have placed the completion date at approximately December 26,' 1961. We are of the opinion that the note actually matured at an earlier date when the appellee was told to stay away from the premises. Thus, the court did not err in allowing interest beginning at a later date, February 15, 1962, the date on which the appellants moved into the residence in question, to the date of the judgment. While the note provided for 10% interest on all past due interest and principal the judgment fails to award such interest on the accrued interest in the sum of $3,511.00. Both interest and attorney’s fees provided for in a mechanic’s lien contract, of which the note is an integral part, are recoverable in an action for partial completion under such a contract. Kleiner v. Eubank, supra. The rule is applicable here since according to the jury the appellee was prevented from completion of the contract by the acts of appellants or their agent and thus the provisions of the lien apply without any impairment.

In Harrop v. National Loan & Inv. Co., supra, this court had on appeal from the District Court of Denton County a case very similar to this. The mechanic’s lien contract provided that failure to complete the improvements shall not defeat such indebtedness and lien but same shall exist for the contract price less the amount reasonably necessary to complete the contract in accord with the plans and specifications.

It was contended that since there was only partial completion under the contract a recovery on quantum meruit was destructive of any lien thereunder. This court in holding there was no impairment of the lien under such a piuvision said: "We know of no statutory or constitutional inhibition against this sort of provision, and believe that such a provision is valid. Under it a contractor, or his assignee, would not be required to bring his action in the form of quantum meruit, but he could bring suit on the contract, in which event the owner would have the election, by way of cross-action, to require a specific performance, or to plead a deduction in the amount of the contract price to the extent of the sum necessary to complete the contract according to its terms. * * *

“We think under the statute (article 5631, supra) a lien will be fixed upon a homestead only to the extent of the labor performed or material furnished, but we are of the opinion that a valid contract could be entered into by the owners and the contractor by the terms of which the contractor was to complete the house, except as to the painting or the papering or the plastering, etc., and that there would be a valid lien against the completed premises to the extent of the labor performed or the material furnished. We construe this contract as in effect providing that, in case the contractor should not perform some of the labor or furnish some of the material provided for by the terms of the contract, he would have a lien for the labor performed and material actually furnished, subject to the right of protection to the owner against a payment exceeding the contract price.”

In 10 Tex.Jur.2d, Building Contracts, § 40, p. 42, it is stated, “A contractor may sue on the contract though he has only partially performed his undertaking, where full performance is prevented by the wrongful act of the owner, or where the owner is guilty of a breach that justifies the contractor in refusing further performance, and may recover at the rate fixed by the contract for the work actually performed. He may also sue on the contract when it provides that if the work is not completed the contractor shall be entitled to the contract price less such amount as may be reasonably necessary to complete the building according to the plans and specifications.” Section 47, p. 50, of the same text states, “Where the contractor is entitled to sue on a quantum meruit for a partial performance of the contract, the measure of recovery is the reasonable value of the work done and materials furnished, less such damage as the owner may have suffered, where the failure fully to perform was due to the fault of the contractor, and less any payments already received by the contractor.

“The contractor is not entitled to anything in excess of the contract price for the whole of the work unless prevention of the completion of the contract has been caused by the wrongful act of the owner.”

It would appear from these authorities and the cases cited therein that the contractor, appellee herein, would not be entitled to damages as such or any amount in excess of the contract price, excluding extras or changes, unless he was prevented from completion of the contract by the “wrongful” act of the owner. In this case the appellee’s pleadings did not include any allegations for damages and none were awarded. The conduct of the owner in preventing completion of a contract does not necessarily have to be wrongful to excuse the contractor from full performance and entitle him to the material and labor furnished by him or to preserve the lien to which he is entitled under a mechanic’s lien contract when such contract contains the provision for partial performance as it did in this case.

Further where the failure to fully perform under the contract is due to the action of the owners or their agent the owners would not be entitled to damages for such partial performance resulting therefrom. We, therefore, find no error in the court’s failure to award damages to appellants in the sum of $2,000.00 representing the difference between the $29,-000.00 value of the residence as is and its value of $31,000.00 if completed as found by the jury.

We are further of the opinion that the court did not err in failing to allow appellants credit on the judgment for any payments made by them for materials used in the construction. The court awarded appellee judgment based upon the amount found by the jury to be the value of the labor and materials furnished by the appellee. This amount was exclusive of the value of any materials furnished by appellants.

The court admitted a second set of plans in evidence after it was developed that the only difference between them and the plans placed in evidence by the appellants was the drawing of the brick wing referred to in the contract. Other minor differences were made known to the jury. Based upon our examination of the record we can see no reason why the introduction of the plans would or did confuse the jury.

It was not error for the court to award judgment on the basis of the value of the material and labor furnished by appellee as found by the jury and to order foreclosure of the lien. Such a recovery on a quantum meruit was not destructive of any lien provided by the contract in question. Harrop v. National Loan & Inv. Co., supra; Robinson v. Leach, 237 S.W.2d 366 (Fort Worth Civ.App., 1951, writ ref., n. r. e.); Galbraith-Foxworth Lumber Co. v. Long, supra.

When full performance of a contract is prevented by the acts or conduct, whether wrongful or otherwise, of the owner after partial performance by the contractor the latter is excused from full performance and may sue upon the contract which provides for partial performance and enforce the lien to the extent of the work and labor performed under such contract and enforce other provisions thereof such as interest and attorney’s fees to which he may show himself entitled.

The cases cited by appellants are not applicable to the facts of this case since for the most part they pertain to cases where the contracts in question did not contain a partial performance provision.

The Harrop case, supra, has been cited with approval in a number of cases. See Magee v. I. & G. N. Wood & Coal Co., 269 S.W.2d 498 (San Antonio Civ.App., 1954, wrif ref., n. r. e.), in an opinion by Justice Norvell, now an Associate Justice of the Supreme Court of Texas, in which he cites the Harrop case, and others which have followed it and distinguishes them from cases which do not involve a proVision for partial performance. See also Mathes v. Williams, 134 S.W.2d 853 (Amarillo Civ.App., 1939, no writ hist.), which points up this difference'. Appellants cite the Magee case, supra, but we find no application to the facts here involved.

All of the appellants points of error are overruled for the reasons aforesaid and the judgment of the trial court is accordingly affirmed.

Affirmed.