author: PALMORE, Judge.

text:
    Mary Susan ELKINS, Appellant, v. Albert C. ELKINS, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.
    Rehearing Denied Sept. 21, 1962.

      Weldon Shouse, Shouse & Barker, Lexington, for appellant.
    Lasserre Bradley, James M. Todd, Lexington, for appellee.
   PALMORE, Judge.

Mary Susan Elkins appeals from an order of the Bourbon Circuit Court overruling her motion to require her former husband, Albert Elkins, to contribute to the support of their two youngest daughters, aged IS and 7 years, respectively, who are in her custody.

Mary Susan and Albert were divorced in 1957 by a judgment of the Bourbon Circuit Court incorporating a contract in which they settled their differences with respect to property, alimony, and the custody and maintenance of their children. Mary Susan received custody of Alberta Gayle and Suza Lee, the two daughters herein mentioned, and was given title to a 23-acre farm in Bourbon County, together with the household effects, an automobile, and all the personal property on the farm, subject to certain mortgages which she assumed. She released to Albert whatever interest she had in some property he owned in Wolfe County, and he retained an automobile.

The contract further provided as follows:

“The said Mary Susan Elkins is to receive the foregoing in lieu of alimony for herself and maintenance for the children hereinafter referred to, and releases any and all claims which she may have in her own right and on behalf of her children arising out of the said marital relationship.”

After having sought unsuccessfully in 1959 to obtain an order from the Bourbon Circuit Court re-opening the case on the question of maintenance for the children, Mary Susan instituted this proceeding by filing another motion and affidavit in the circuit court in December of 1961. Albert responded by counter-affidavit, and after hearing respective counsel the court again declined to grant relief.

The order from which this appeal is taken neither contains findings of fact nor discloses the basis on which the trial court’s decision was made. This is unfortunate, for a losing party ought not to he deprived of a proper review by the court’s failure to record its specific rulings of law and fact. By its failure to conform with CR 52.01 a record that leaves us in the dark in this respect inevitably conduces to a substitution of our own judgment for that of the trial court.

The responsibility of a father to support his infant children “cannot be diminished by contract. * * * And this matter of maintenance continues within the jurisdiction and control of the court, subject to modification as circumstances and conditions may demand, for there can be no final judgment as to infant children.” Pegram v. Pegram, 1949, 310 Ky. 86, 219 S.W.2d 772.

It appears from the affidavits in the record that Mary Susan sold the Bourbon County farm and invested the proceeds in an apartment house in Lexington, from which she receives gross monthly rentals of $185. She earns $169.25 per month as a clerk. Out of this total income of $354.25 she has $148.53 left after paying installments of principal and interest on a $14,000 debt and all other expenses but food and clothing for herself and the girls. This, of course, is not enough, and Mary Susan asks that Albert pay $100 per month for each of the two children.

Albert’s affidavit says that Mary Susan recently received a $3,000 judgment on some sort of a claim arising out of a property transaction. Whether she got all or any of the money we do not know. She does, however, have an equity in the apartment building. Albert says his own take-home pay is “less than $400” per month.

When a wife receives property under a contract by which she agrees to relieve the husband of his obligation to support a child or children, and the income she is able to earn from the property is insufficient for that purpose, then at least as between her and the divorced father she is the one primarily liable for the support of the children, and perhaps the contract obliges her to exhaust the principal before looking to him. But the immediate welfare of the children comes first, and regardless of whatever equitable adjustments between the parents the trial court may see fit to direct in order to preserve the integrity of the contract, the father should be required to contribute such additional funds as are necessary in order to provide for them.

In this instance the need of the children was obvious, and the trial court erred in leaving the situation as he found it. We are remanding the case with directions for a rehearing on the motion and entry of a new order supported by specific findings of fact on the evidence. If the trial court in its discretion determines that some reasonable portion of whatever maintenance payments are required of Albert should become a charge accruing in his favor against Mary Susan’s equity in the apartment property, there is no reason why it may not be so provided and secured of record by suitable document.

The cause is reversed for further proceedings consistent with this opinion.

WILLIAMS, J., not sitting.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    Theron Elehu MILAM, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 7165.
    Court of Civil Appeals of Texas. Amarillo.
    June 25, 1962.
    Rehearing Denied Sept. 4, 1962.
    Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Alton R. Griffin, County Atty., E. M. Fulton, Jr., Asst. Co. Atty., Lubbock, for appellee.
   NORTHCUTT, Justice.

On September 7, 1960, Texas Department of Public Safety entered its order suspending T. E. Milam’s commercial operator’s license for a period of 6 months from September 10, 1960. On October 5, 1960 Milam brought suit in the County Court at Law of Lubbock County, Texas, against Texas Department of Public Safety to set aside the six months suspension. The order of suspension was entered upon a finding that Milam was an habitual violator of the traffic laws. The finding was made under Section 22(b) of Article 6687b, Vernon’s Ann. Texas Statutes. Milam hereafter will be referred to as appellant and Texas Department of Public Safety as appellee.

Appellant had been convicted of four offenses of speeding arising out of different transactions in a consecutive period of twelve months. The appellee filed in the case brought by appellant a Motion for Summary Judgment. On July 10, 1961, appellant filed a motion to dismiss appellee’s motion for summary judgment on the ground the case was moot since the license that had been suspended expired by its own terms on June 2, 1961, and that a new license was issued to appellant on or about June 2, 1961 to expire on June 2, 1962. The court denied appellant’s motion to dismiss and granted appellee’s motion for summary judgment and held the appellant was an habitual violator of the traffic laws of the State of Texas. It is from this judgment that appellant brought this appeal.

When appellant filed this suit on October 5, 1960 to set aside the six months suspension, the order of suspension entered by the Texas Department of Public Safety was suspended until a final judgment was rendered. Section 22(c) of Article 6687b, Vernon’s Ann.Texas Statutes. This case was not tried until after June 2, 1961, the date the original license, by its own terms, expired. Consequently, the license was in full force and effect until expired on June 2, 1961, and was renewed on that date to expire on June 2, 1962. Under Section 18 (a) of Article 6687b the Department had to renew the license unless it had reason to believe that appellant was no longer qualified to receive the license. At the time of the suspension on September 7, 1960, there had been no finding of a court of competent jurisdiction that appellant was an habitual violator of the traffic laws. The license of appellant was not suspended after the suit was filed in the County Court of Lubbock County, and remained in full force and effect. When the trial court decreed that appellant was an habitual violator of the traffic laws, that was the first time, after the filing of this suit, that the appellant’s license could be canceled. The license in force at the time the judgment was entered declaring appellant an habitual violator of the traffic laws was the only license in existence to be canceled. The fact that a new license had been issued is nothing more than an extension of a privilege granted. Texas Department of Public Safety v. Azar, Tex.Civ.App., 274 S.W.2d 911, N.R.E.

The fact of appellant’s convictions is "ndisputed, but since appellant brought his action to set aside his six months suspension based upon those facts, the question of the right of the Department to suspend the license had been suspended, and the question of suspension had never been determined, and said license was in full force and effect and will continue in force until final judgment is rendered in this case. The right of the department to suspend appellant’s license as an habitual violator was withheld by the action of appellant in bringing the matter for determination by the courts, and by such action, the suspension of the license has been suspended until final judgment. Department of Public. Safety v. Austin, Tex., 354 S.W.2d 376, 377.

We are of the opinion under the holding in the case of Texas Department of Public Safety v. Perlman, Tex.Civ.App., 340 S.W.2d 522, N.R.E. that appellant should be granted credit for the time that elapsed from September 10, 1960 to the date of October 5, 1960 when the petition was filed'. We overrule all of appellant’s points of error other than to grant the credit herein set out. The judgment of the trial court is affirmed and the appellant is here-given credit upon his suspension from September 10, 1960 to October 5, 1960 when; the petition was filed in the trial court..


author: COLLINGS, Justice.

text:
    T. O. DOSSEY et ux., Appellants, v. Chester A. OEHLER et al., Appellees.
    No. 3736.
    Court of Civil Appeals of Texas. Eastland.
    July 27, 1962.
    Rehearing Denied Sept. 7, 1962.

      C. O. McMillan, Stephenville, for appellants.
    Chester A. Oehler, Dallas, for appellees.
   COLLINGS, Justice.

This is a plea of privilege case. T. O. Dossey and wife, Elizabeth Dossey, filed suit in the District Court of Erath County against Chester A. Oehler, Ferrell W. Beck and J. D. Thomas, Sheriff of Erath County, to set aside a certain purported sale of a royalty interest in 352 acres of land situated in that county. Plaintiffs also alleged that the purported levy and sale of such land was maliciously done by defendants Beck and Oehler and sought to recover alleged actual damages in the sum of $500.00 and an additional $500.00 as exemplary damages. The defendants, Chester A. Oehler and Ferrell W. Beck filed pleas of privilege to be sued in Dallas County, the alleged place of their residence. Such pleas were sustained and plaintiffs T. O. Dossey and Elizabeth Dossey have appealed.

Appellants present two points of error in which it is contended (1) that the court erred in sustaining the plea of privilege of Chester A. Oehler and, (2) erred in sustaining the plea of privilege of Ferrell W. Beck. We first consider the point concerning the plea of privilege of Ferrell W. Beck. In a pleading which Mrs. Beck denominated as her “plea of privilege and original answer”, the first paragraph contains the following:

“Defendant Ferrell W. Beck says that this court ought not to have or take further action or cognizance of this suit as to her than to dismiss the same for the reason that plaintiff is seeking to make a collateral attack on the transfer of property that is not void in connection with an execution arising out of a duly created court in Tarrant County, Texas, and therefore says this case should be in all things dismissed.”

Immediately following the above quoted allegation, the instrument continues in paragraph 2 “without waiving the above and foregoing plea in abatement” with a statutory form of plea of privilege. At the end of such pleading Mrs. Beck closes with the prayer “that her plea in abatement be sustained and in the alternative that her plea of privilege be sustained.”

Appellee Beck invoked the jurisdiction of the district court by presenting her plea in abatement prior to her plea of privilege. The plea of privilege was therefore waived. It is well settled that the presenting of a plea in abatement or other pleading in which a defendant invokes the active jurisdiction of the court is a waiver of a plea of privilege. Reed v. Garlington, Tex.Civ.App., 233 S.W.2d 185; Leyendecker v. Harlow, Tex.Civ.App., 189 S.W.2d 706; Chapa v. Cox, Tex.Civ.App., 271 S. W.2d 486; Foster v. H. O. Wooten Grocery Company, Tex.Civ.App., 273 S.W.2d 461. Where the pleadings are filed simultaneously with, but subject to a plea of privilege, and the plea of privilege is first presented to the court for hearing, it is not waived. Royal Petroleum Corporation et al. v. McCallum, 134 Tex. 543, 135 S.W.2d 958. But that is not the fact situation here involved. Here the filing of the plea of privilege was subject to the plea in abatement which came first, and was therefore waived. Under these circumstances appel-lees’ contention that the controverting affidavit of the Dosseys’ was not timely filed is not material.

We next consider appellants’ point complaining of the action of the court in sustaining the plea of privilege of Chester A. Oehler. We cannot agree with appellee Oehler’s contention that the court properly sustained his plea of privilege because appellants did not timely file their controverting plea as required by Rule 86, Vernon’s Tex.Rules Civ.Proc., Rule 86 provides in part as follows:

“A copy of such plea of privilege shall be served on the adverse party or his attorney of record by actual delivery in person to him or by mailing a copy of such pleading to him by registered mail return receipt requested. If such adverse party desires to controvert the plea of privilege, he shall within ten days after he or his attorney of record received the copy of the plea of privilege file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.”

The record shows that the plea of privilege of Chester A. Oehler was filed on December 15, 1961. Oehler did not deliver or have mailed a copy of his plea of privilege to appellants or their attorney as provided for in Rule 86. However, he sent appellants’ copy of his plea of privilege to Judge Oxford and the District Clerk. The only showing of notice to appellants of the filing of Oehler’s plea of privilege was the Judge’s fiat which shows to have been filed and issued by the Judge on December 18, 1961. This fiat, directed to Hon. C. O. McMillan, attorney for appellants, purported to give notice that a hearing would be had on ap-pellees’ motions to sever, to disqualify Judge Oxford, and his plea of privilege on January 8, 1962. Appellants’ controverting plea to Oehler’s plea of privilege shows to have been filed on December 27, 1961, less than 10 days after the date of the Judge’s fiat. There was no showing of any notice to appellants or their attorney McMillan concerning the Judge’s fiat, but in any event, such notice must have been received after the issuance of the fiat which was less than 10 days prior to the filing of appellants’ controverting affidavit. We cannot agree with appellees’ contention that under these circumstances appellants’ controverting affidavit to Oehler’s plea of privilege was not timely filed.

In appellants’ controverting plea to Oeh-ler’s plea of privilege venue is claimed in the District Court of Erath County because the suit is one for recovery of land and to remove incumbrances upon the title to land and to quiet title to same. Subdivision 14 of Article 1995, Vernon’s Ann.Tex.Civ.St, provides as follows:

“14. Lands.- — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

Two requirements are necessary to bring a case within the provisions of Subdivision 14: (1) the nature of the suit must come within the terms of the statute and (2) the land must be situated in the county in which venue is claimed. The question whether the nature of the suit complies with the statute is determined by the allegations of the plaintiffs’ pleadings.

Appellants, the plaintiffs below, as basis for their cause of action alleged that an agreed judgment had been entered against them in favor of Ferrell W. Beck in the County Court at Law of Tarrant County on July 24, 1961, for the sum of $20.24, plus court cost; that, thereafter, on August 29, 1961, without notice to plaintiffs or their attorney, defendant Beck through her attorney caused an execution to be issued on the agreed judgment and delivered it to the Sheriff of Erath County, J. D. Thomas, with instructions to levy on all the right, title and interest of appellants or either of them in 352 acres of land, more or less, in Erath County; that Elizabeth Dossey at the time owned an undivided ½ of ⅛⅛ royalty in the oil, gas and other minerals in and under said land; that the Sheriff undertook to make a levy but gave no notice to plaintiffs either personally or by mail and published no notice in any newspaper, nor did he give any notice to the attorney who represented plaintiffs in the Tarrant 'County case; that without any knowledge on the part of appellants, said Sheriff, acting under the direction of Chester A. Oehler as attorney for Ferrell W. Beck, held a purported public sale of said real estate and undertook to sell same; that the only notice of the purported levy and sale was the posting of a single notice on the bulletin board at the courthouse in Stephenville, Texas. Appellants further alleged that Chester A. Oeh-ler was present at the sale and bid $30.00 for the interest of Elizabeth Dossey in said land; that the bid was accepted, and that he procured a purported Sheriff’s deed covering said royalty interest to him and filed same for record in the deed records of Erath County. Appellants further alleged that the value of the ⅛⅛ royalty interest in question was more than fifty times the $30.00 bid on the property by Chester A. Oehler.

Appellants alleged that when they learned of such execution and sale they immediately filed this suit to set the sale aside, and tendered into the County Court at Law of Tar-rant County, the full amount necessary for the payment of such judgment, interest and costs; that Ferrell W. Beck who was plaintiff in the Tarrant County judgment against appellants acted with full knowledge of all the facts; that a deed was thereafter filed for record in Erath County from Chester A. Oehler to Ferrell W. Beck purporting to convey the royalty interest to her. Appellants alleged that the purported sale was void, constituted a cloud on their title to the royalty interest here involved and prayed that such cloud be removed.

In our opinion the nature of this suit comes within the terms of Subdivision 14 of the Venue Statute. In that it seeks to set aside the Sheriff’s deed in question and to remove the cloud which it casts upon the title to appellants’ land situated in Erath County. However, no error is shown in sustaining Oehler’s plea of privilege because Oehler has disclaimed any interest in such land for the reason that he has conveyed any interest he had therein to Mrs. Beck.

Appellants’ claim for actual and exemplary damages by reason of alleged maliciousness on the part of Beck and Oeh-ler in accomplishing the sale of appellants’ land is not a suit for damages to land and does not come within the provisions of Subdivision 14, Smith v. W. T. Carter & Bro., Tex.Civ.App., 146 S.W.2d 1113.

For the reasons stated the judgment is affirmed in so far as it sustained Oehler’s plea of privilege but is reversed and rendered in so far as it sustained the plea of privilege of appellee Ferrell W. Beck.


author: BOYD, Justice.

text:
    Willie Ida WAINWRIGHT et al., Appellants, v. W. C. WAINWRIGHT, Appellee.
    No. 16344.
    Court of Civil Appeals of Texas. Fort Worth.
    July 13, 1962.
    Rehearing Denied Sept. 14, 1962.
    Jennings, Montgomery & Dies, and Frank Jennings, Graham, for appellants.
    Rogers, Eggers, Sherrill & Pace, William F. Smith and Guy Rogers, Wichita Falls, for appellee.
   BOYD, Justice.

W. C. Wainwright and Willie Ida Wainwright were divorced on December 3, 1959. At that time they were and continued to be joint owners of the leasehold estate on a tract of land in Archer County. Following the divorce, W. C. Wainwright continued to operate the lease, producing oil therefrom in paying quantities, until in February, 1960, he voluntarily shut down the wells, and, according to the theory of Mrs. Wainwright, he did not thereafter produce any oil or gas.

The lease contained the following provision: “It is specially agreed that in the ■event that oil or gas is being produced or is obtained from said premises after the expiration of the primary term hereof and said production shall for any reason cease or terminate, lessee shall have the right at any time within ninety (90) days from the cessation of such production to resume drilling operations in the effort to make said leased premises again produce oil or gas, in which event this lease shall remain in force so long as such operations are continuously prosecuted, * * * and if they result in production of oil or gas, so long thereafter as oil or gas is produced from the premises.”

Early in June, 1960, when she believed that production had ceased for more than 90 days, and that the lease had terminated, Mrs. Wainwright arranged with the owners of the land to secure another lease. The new lease was made to her as lessee upon condition that it be found that the prior lease had terminated. After securing the agreement for the lease, and before it had been executed, Mrs. Wainwright, with the assistance of her son, who had experience in oil field work, put the wells back into production. The new lease was crated June 29, 1960, but was not signed and acknowledged by all the parties until the latter part of July.

Mrs. Wainwright brought this suit against W. C. Wainwright in trespass to try title, and contends that she is the sole ■owner of the leasehold estate, and that all rights formerly held by her and W. C. Wainwright under the prior lease had ceased to exist. The Peters heirs, who are the landowners, intervened and claimed that the original lease had terminated. Both of the Wainwrights moved for instructed verdict, and the defendant’s motion was sustained. Judgment was rendered that the original lease had not terminated; and if it had, Mrs. Wainwright held the leasehold estate under the new lease in trust for herself and W. C. Wainwright. Mrs. Wainwright and the Peters heirs appeal. Mrs. Wainwright will be referred to as appellant, and W. C. Wainwright as appellee.

Appellee testified several times that he did not produce any oil or gas after February 28 or 29, 1960. There was other evidence that the operations were shut down continuously from the latter part of February until appellant started operations about June 14. However, an issue as to whether there was a complete cessation of production for 90 days was made by appellee’s statement in one part of his testimony that he produced some oil in March and April.

The primary term of the lease had expired at the time the parties were divorced. Appellee was then operating the lease. He continued to do so, without any agreement with appellant, and without consulting her, until he ceased operations in February, 1960. He did not consult her about shutting down. He did not notify her that he would or that he had shut down. He testified that he ceased operations because he was tired of playing Santa Claus. A witness testified that he heard appellee say that the Peters lease would be one lease appellant would be sorry she had an interest in.

We think the lease terminated if production was voluntarily discontinued by appel-lee for more than 90 days. Guerra v. Chancellor, Tex.Civ.App., 103 S.W.2d 775, error refused; Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 137 A.L.R. 1032; Garcia v. King, 139 Tex. 578, 164 S.W.2d 509; Woodson Oil Co. v. Pruett, Tex.Civ.App., 281 S.W.2d 159. In the last cited case there was involved a lease very similar to the one before us, except that it provided only 60 days for resumption of operations after cessation. The court said: “Appellants next contend that the cessation of production on the lease was sudden and only temporary, and that under such circumstances they were entitled to a reasonable time in which to remedy the defect and resume production. This might be true under the terms of some leases, but under the lease here the parties agreed and stipulated what would constitute temporary cessation. The lease provides, in effect, that if production should cease the lessee must commence reworking or additional operations within sixty days or the lease would terminate. If the cessation of production is for more than sixty consecutive days it is not to he regarded as temporary under the terms of this lease. If re-working or additional operations are not begun within the sixty-day period the lease terminates by its own provisions.”

In his contention that production had not ceased, appellee strongly relies on Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 724, affirming Clifton v. Koontz, Tex.Civ.App., 305 S.W.2d 782, wherein it was said: “In the case of a marginal well, such as we have here, the standard by which paying quantities is determined is whether or not under all the relevant circumstances a reasonably prudent operator would, for the purpose of making a profit and not merely for speculation, continue to operate a well in the manner in which the well in question was operated.” The question in that case was whether production in paying quantities had ceased. In our case the question is whether all production had ceased for 90 days. The wells were producing, and in paying quantities, until ap-pellee voluntarily discontinued operations. We do not think the holding in Clifton v. Koontz has application here. We do not ascribe to that holding the meaning that if an imprudent operator shuts down a well which is producing in paying quantities, it cannot be said that production has ceased so long as a prudent operator would have continued production. If that be so, a good well could be shut down for “days, weeks, or months”, or time unlimited, without cessation of “production”; and it would seem that the better the well the longer an imprudent operator could refuse to produce without danger of losing the lease. Moreover, it was said in that case “We agree with petitioners that if production in paying quantities ceased, the 60-day clause applies.”

If the first lease terminated, we do not think the second lease is held by appellant in trust for appellee and herself. Ap-pellee caused the first lease to terminate without any inducement upon appellant’s part. The relationship theretofore subsisting between the parties ceased. Keystone Production Co. v. Pace, Tex.Civ.App., 41 S.W.2d 731, error refused; Collins v. Gee, Tex.Civ.App., 107 S.W.2d 754, error refused; MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334.

Believing that in granting appellee’s motion for instructed verdict the learned trial court fell into error, the judgment is reversed and the cause remanded.


author: CLAYTON, Justice.

text:
    Will WILSON, Attorney General of Texas, et al., Appellants, v. Hazel Lyons FRANZ et al., Appellees.
    No. 5511.
    Court of Civil Appeals of Texas. El Paso.
    Aug. 1, 1962.
    Rehearing Denied Sept. 12, 1982.

      Will Wilson, Atty. Gen., Ben M. Harrison and Mary K. Wall, Asst. Attys. Gen., Austin, Wolff & Wolff and Rudy Rice, San Antonio, for appellants.
    C. Stanley Banks and John E. Banks, San Antonio, for appellees.
   CLAYTON, Justice.

This is an appeal from the findings of the 73rd District Court of Bexar County, Texas, in a declaratory judgment action brought by plaintiff Hazel Lyons Franz, as Adminis-tratrix with the Will Annexed of the Estate of Alice M. Lee, Deceased, for the construction and determination of the validity of a portion of the will of the decedent reading as follows:

“ * * * my home furnished to be carefully sold to realize as much as possible, & blind & crippled to share same. My mtgs. I hold & my stocks I leave to needed charity. My 100 acres of land in Okla to go to most needed charity.”

In connection with these particular provisions or bequests, the plaintiff’s petition recites:

“ * * * the will makes no mention of and does not identify the particular individuals or charitable organizations entitled to receive the same. The bequests do not name nor provide for a trustee or trustees to distribute such bequests, or to select the party or parties entitled to benefit therefrom. Insofar as the Plaintiff is concerned, such provisions are too vague and indefinite for her to carry out without instuctions from this Court.”

Will Wilson, Attorney General of Texas, was joined as a party defendant to the action,

“ * * * in view of the fact that one of the official functions of his office is to represent the public in connection with the enforcement of charitable trusts. Further, he has informed the plaintiff that it is his position that said last will and testament creates one or more charitable trusts and that he believes he is a necessary party to this action. If the position of the Attorney General be correct as to the construction to be placed upon the will, further questions are presented as to how such charitable trust or trusts shall be carried out and executed, by whom, and the selection of beneficiaries thereunder would have to be provided for in some manner.”

The other parties defendant are all the heirs at law of the decedent, who took the position that the wording of the quoted provisions or bequests is too vague, indefinite and uncertain to create a valid charitable trust or trusts, among other asserted reasons for the invalidity thereof.

Trial was to the court without a jury upon a stipulation of facts and written briefs. The court found: (1) that the portion of the will reading “my home furnished to be carefully sold to realize as much as possible, & blind & crippled to share same” created a valid and enforceable charitable trust, and the court appointed Hazel Lyons Franz as Trustee to administer the same; and (2) that the portions of the will which attempted to bequeath and devise the decedent’s mortgages and stocks “to needed charity” and the 109 acres of land in Oklahoma to “most needed charity” were invalid and said property was apportioned among decedent’s heirs at law.

Referring to the parties as they appeared in the trial court, defendant Attorney General Will Wilson appealed the latter part of the court’s judgment and defendants-heirs appealed the portion of the judgment validating a charitable trust and appointing a trustee. These appeals were taken to the Court of Civil Appeals for the Fourth Supreme Judicial District at San Antonio and were transferred to the Eighth Judicial District at El Paso by order of the Supreme Court of Texas for the purpose of equalizing the docket.

The Attorney General predicates error on the part of the trial court in holding invalid the testamentary provisions relative to “needed charity” and “most needed charity” and in failing to appoint a trustee to administer these provisions. The heirs urge error in the court’s upholding the bequest to “blind and crippled” because such bequest is too vague, general and indefinite, that it fails to name a trustee to administer the trust (if a trust was intended, which it does not state) fails to specify any type of plan or give any definite details to determine the true intent of the testatrix and fails to designate her intended beneficiaries with sufficient certainty or to designate a sufficiently certain and definite class so as to create a valid charitable trust.

The language of the will in its entirety fails to employ the word “trust” or similar terminology; it does not name a trustee nor set out a plan or scheme for the administration of a trust, and does not designate intended beneficiaries except as above indicated. If these be valid objections to the will, they are applicable to the entire will, but more forcefully, indeed, where the objects of the bequests are described as “needed charity” and “most needed charity”, than to those described as “blind and: crippled”, the former terms being generic and general in nature, covering a number of charitable purposes, while the term “blind and crippled” was intended to designate two* specific groups of individuals that are proper objects of charity. We therefore will turn our attention first to part (2) of the court’s rulings and the objections leveled against it by the Attorney General, since if it be determined that the will is sufficient to establish a public charitable trust whew the general and generic terms are used, certainly the will is sufficient to establish such a trust for the specific groups named.

The difficulty in determination of this matter does not arise from the use of the general terminology. It seems to be the settled law in this state that a will attempting to establish a general charitable trust is not, by reason alone of the failure to-specify the charities which are to be the-recipients of the bequest, invalid. This is. the holding of the Texas Supreme Court in Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326 (1946),. in which a careful and exhaustive review of authorities is to be found. This decision was the basis for the holding in Rentz v. First National Bank in Corsicana,. 325 S.W.2d 958 (Tex.Civ.App., 1959). in which writ was refused.

But it is pointed out that in both of these-cases a trustee was appointed with either express or strongly implied authority to-work out the details of the trust. It is-argued that the holding in these two cases is founded upon the designation of a trustee whose discretion the testator could rely upon for the proper administration of the-trusts, a designation lacking in the present case. It appears that there is no Texas' decision which has passed squarely upon the-question of the validity of a will which fails. Loth to designate a gift as a “trust” or to name a trustee for its administration. ITow-•ever, we find language in Texas cases that may serve as a guide in determining the matter at hand. Powers v. First Nat. Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273, in a Commission of Appeals opinion adopted by the Supreme Court, uses the following language:

“Charities like those specified by Mrs. Hofstetter are held in such high regard by the law that the rules of construction are more liberal to sustain them than they would be if the gifts were to individuals. * * *
“ * * * public charity trusts are particular favorites of courts of equity, which are quick to protect and enforce them.”

This language is quoted in the Civil Appeals opinions of Baer v. Dallas Theater Center, 330 S.W.2d 214 (1959) and Haynes v. Henderson, 345 S.W.2d 857 (1961).

Turning to recognized authorities on the subject of Trusts, the following is quoted:

2A Bogert, Trusts and Trustees, ¶ 371, p. 77:

"Gift to charity with no trust
“The third and fourth classes, mentioned above, present the further complication that no trust is expressly created. The gift is ‘to charity’, or ‘to the poor and other charities.’ No trustee is named to make a selection. It would not seem that this should be a vital objection, but it affords a new ground of hostility for some courts. As previously shown, equity never lets a trust fail for want of a trustee, whether the trust be private or charitable and whether the want of a trustee appear at the beginning of the trust or at a later period. If equity is convinced in these cases that a trust was intended, there should be no hesitation in appointing a trustee and permitting him to make the selection of particular objects. And it would seem reasonable to hold that a gift to charity, without more, was meant to be a case of trust. Such a donation cannot take effect otherwise. As a voluntary transfer of the legal interest in realty or personalty, it would fail for lack of a named or identified donee. The donor should be presumed to know the law and not to desire to do an ineffectual thing. He should be interpreted as meaning that there should be a trust for charity, or for the poor and other charities, and that the court should nominate a trustee to carry out his wishes.”

Vol. IV, Scott on Trusts, (2d Ed.) ¶| 397, p. 2782:

"Direct gift to charity. Where a testator leaves property directly to purposes of charity, without using language indicating that the property is to be held in trust, the disposition does not fail, but the court will appoint a trustee to hold and dispose of the property for the intended objects. Thus where a testator leaves a sum of money ‘to the poor,’ the bequest will be treated as a gift in trust to assist the poor, although in form the gift was made directly to the poor; and the court will appoint a trustee to administer the trust or will frame a scheme for the application of the legacy to the intended purpose.
“Similarly, a direct bequest ‘to charity’ is valid.”

Second Restatement of the Law, Trusts 2d, jf 397, p. 286:

“d. Where no trustee named. If the owner of property devises or bequeaths it upon trust for a charitable purpose, the intended charitable trust is not invalid because of his failure to name a trustee. In such a case the court will appoint a trustee if no method of selecting the trustee is provided for in the terms of the trust, and if the testator did not manifest an intention that his executor should also be trustee. This is true not only where the testator designated a particular charitable purpose, but also where the prop-perty is devised or bequeathed for charitable purposes generally. In the latter case the court will order the framing of a scheme and will appoint a trustee to administer the trust for the purposes fixed in the scheme * *.”
“e. Direct gift to charity. If the owner of property devises or bequeaths it for charitable purposes, and not only does not name a trustee but also does not use language indicating that the property is to be held upon trust, nevertheless the disposition is valid. Thus, if a testator bequeaths a certain sum ‘to charity’, a charitable trust is created. So also, a charitable trust is created where the testator directs that a certain sum should be used to aid needy students, or to assist the poor.
“In such cases the court will either appoint a trustee to carry out the purpose or will approve a scheme to carry it out.”

Without attempting to review the decisions in other jurisdictions, let it be said that the comments of the above-quoted authorities on Trusts more nearly reflect the sympathetically disposed attitude of Texas courts toward public charity trusts as expressed in Powers v. First Nat. Bank of Corsicana, supra, than do those foreign decisions which hold otherwise. It is believed that the absence in Texas of a statute which in many other states supplies the deficiencies often found in the language employed in intended testamentary trusts should not serve to defeat the obvious ultimate result intended by the donor.

Applying the foregoing observations to the case at hand, we hold that the use of the word “charity” in the will evidences a clear intention on the part of the testatrix to establish a “trust” for charitable purposes. The qualifying words “needed” charity and “most needed” charity impose a limitation upon the discretion of the administrator of the trust, but do not present insuperable obstacles to its proper administration or an effective supervision of the administration by the courts. The word charity itself is broad enough to include many public uses. 11 Tex.Jur.2d 693, Charities; Page on Wills, Bowe-Parker Revision, Vol. V, Ch. 41, p. 173, Charitable Trusts; Second Restatement of the Law, Trusts 2d, ¶ 368, p. 246. It is a plausible conclusion that the testatrix here intended that among these uses the person entrusted with the disbursement of her beneficence would select those which, from the standpoint of need, were more entitled to receive the same.

We are unable to agree that the failure of the testatrix to name a trustee for the administration of the charitable trust which we believe to have been established by her will is a sufficient ground to invalidate the same. It is seen from the various authorities on Trusts quoted above that where the owner of property devises or bequeaths it upon trust for a charitable purpose, the intended charitable trust is not invalid because of his failure to name a trustee. In Taysum v. El Paso Nat. Bank, 256 S.W.2d 172 (Tex.Civ.App., 1952, wr. ref.), it is stated:

“It is a general rule of equity that a trust will not fail for lack of a trustee; if a trustee be named and refuses to act or the instrument attempting to create a trust fails to name a trustee, the court will appoint a trustee to carry out the manifest intent of the settlor. (Citing authorities). * * * A public charitable trust will not lapse through the failure of an enforcement medium.”

In Morse v. First Nat. Bank of Galveston, 194 S.W.2d 578, (Tex.Civ.App., 1946, no wr. hist.), the trustee named to administer a public trust diéd before the testatrix. The heirs of the decedent claimed that the decedent having námed a trustee, she had clearly expressed an iaffirmative intention to vest in him personally the power to administer her charities and distribute the fund as he, personally, might see fit; that he having predeceased the testatrix and therefore being unable to exercise his personal judgment in the distribution of the fund, it was beyond the power of a Texas court to vest this personal power in some ■other person to be named by the court, and that the bequest had lapsed. The appellate court has this to say:

“It may be, as appellants argue, that no Texas appellate court has directly decided, upon the legal equivalent of the same state of facts, this precise question; but it is thought that our courts generally have laid down rules, from persuasively analogous situations, as controlling inquiries so near to the one here involved that the trial court's holding is a legitimate legal inference therefrom; in other words, under our system, this bequest having been a valid one outstandingly inherent in a discriminative and unambiguous will in its entirety, should not be held to have failed, merely because the person named by the testatrix to distribute the property to a specifically designated public charity predeceased the testatrix; but that, on the contrary, the trust was not a personal one in the sense that only the individual person named could administer it, but a clearly specified one for a public charity, hence should be upheld under the broad principles of equity jurisprudence.” (Citing numerous authorities).

If our courts are empowered, in the case of a public charitable trust and under the above circumstances, to name a trustee different from the person named by the set-tlor, we can see no reason why our courts cannot name a trustee where none has been named in the will. We hold that our courts are so empoweréd.

We stated at the outset that if it were determined thát the will in this case is sufficient to establish a public charitable trust when the general and generic terms “needed charity” and “most needed charity” were employed, it would be sufficient to establish such a trust with regard to the specific class of “blind and crippled”. It is our holding that the indicated will is valid and its wording sufficient in both instances.

In summary, we hold: (1) that the portion of this will reading “my home furnished to be carefully sold to realize as much as possible, & blind & crippled to share same” created a valid and enforceable charitable trust, and the judgment of the trial court in this respect, and in the appointment of Hazel Lyons Franz as Trustee to administer the same, is affirmed; and (2) that the portions of the will reading “My mtgs. I hold & my stocks I leave to needed charity. My 100 acres of land in Okla to go to most needed charity” also created valid and enforceable charitable trusts, and the court’s holding to the contrary is reversed and in this respect rendered, but this cause is remanded for the appointment by the trial court of a trustee to administer the latter two trusts.

Affirmed in part and reversed and rendered in part, and remanded for further action in accordance with this opinion.


author: BELL, Chief Justice. COLEMAN, Justice

text:
    Clem B. McCLELLAND, Appellant, v. Frank BRISCOE et al., Appellees.
    No. 14053.
    Court of Civil Appeals of Texas. Houston.
    July 13, 1962.
    Rehearing Denied Sept. 13, 1962.

      See also 359 S.W.2d 640.
    J. Edwin Smith, Jack J. Rawitscher, Houston, Smith & Lehmann, Houston, of counsel, for appellant.
    Sam Robertson, Jr., Carl E. F. Dally, Gus J. Zgourides, Asst. Dist. Attys., Houston, for appellees.
   BELL, Chief Justice.

This is an appeal from an order refusing to grant a temporary injunction.

Appellant is the duly elected and qualified Judge of the Probate Court of Harris County. Appellee Briscoe was and is the Criminal District Attorney of Harris County. Appellee W. C. Ragan was and is Justice of the Peace, Precinct No. 1, of Harris County.

On June 5, 1962, Mr. Briscoe filed a “Petition for a Court of Inquiry” with ap-pellee Ragan. In the petition he stated he petitioned for the inquiry to be held pursuant to Article 886, Code of Criminal Procedure 1925. The inquiry was to be concerning “the processing of various estates by the Probate Court.” In this connection appellee Briscoe stated he had good cause to believe that criminal offenses had been committed against the laws of Texas. He asked that witnesses be called and examined in relation thereto.

On the same day appellee Ragan entered his order reciting he had good cause to believe that offenses had been committed against the laws of Texas and he desired to inquire into matters set forth in the petition filed. The order set the hearing for June 14, 1962 at 10 a. m.

On June 12, appellant filed his petition for injunctive relief against appellees, seeking first a temporary injunction and after trial on the merits a permanent injunction. The contention of appellant was that Article 886, C.C.P., and Article 887, C.C.P., the latter article being the one conferring contempt power on the Justice of the Peace holding the inquiry, were unconstitutional. It was asserted that appellee Briscoe intended to accuse appellant of offenses against the laws of Texas of the grade of a felony. It was asserted that in such circumstance of use of Article 886, appellant would be denied the following rights under Article 1, Section 10 of the Constitution of Texas:

1. To know the nature and cause of the accusation against him, and to have a copy thereof.

2. To have compulsory process for obtaining witnesses in his favor.

3.To not answer for a criminal offense unless under indictment of a grand jury.

Appellant further alleged that if it be true that charges were to be filed against him as above alleged, he was entitled not to be deprived of liberty, privileges and immunities except by “due course of the law of the land.” Additionally, it was alleged that appellant and numerous other witnesses had been subpoenaed and the above statutes are unconstitutional as in violation of Article 1, Sections 10 and 19, in that the inquiry would involve appellant in criminal prosecutions that would deprive him of certain rights, privileges and immunities.

The above three rights are restated and the following are added:

1. He would be deprived of the rules of procedure to which he would be entitled in a hearing before a Criminal District Court.

2. He would be deprived of the privilege and immunity to have investigation of the alleged offenses on his part investigated in the secrecy of the grand jury.

3. He would be deprived of the right of cross-examination of witnesses against him.

4. He would be deprived of all the privileges to which he is entitled by the due course of the law of the land.

5. He would be subjected to a hearing for which no rules of procedure or of evidence have been prescribed, in violation of his privileges and immunities under the law of the land.

Irreparable loss to appellant is alleged in that there is no adequate remedy to secure to him the above alleged privileges and immunities other than by enjoining of the proceedings. Further, it is alleged that a grand jury is available and has in fact begun investigation. There is a specific prayer that appellees be enjoined from proceeding with the inquiry, and that Articles 886 and 887, C.C.P., be declared unconstitutional. Then there is a general prayer for relief.

The petition is sworn to by appellant.

The substance of the answer is that ap-pellee Ragan would be derelict in performance of the duty imposed on him by Article 886 if he did not proceed since he had good cause to believe criminal offenses had been committed, that the statutes were constitutional and that appellant was neither a defendant nor an accused. There was also a general denial.

A hearing was had at which appellee Ragan testified. He testified that at the inquiry to be held no witness, including appellant, would be allowed representation by counsel. Counsel could be present but would not be allowed to participate in the proceedings. He could not make objections or cross-examine witnesses. The witnesses who desired to do so would not be allowed to cross-examine other witnesses. No one except the District Attorney would be allowed to call witnesses and only the District Attorney or his assistant would be allowed to examine the witnesses. This procedure was to be followed because this was purely an investigation and not a criminal prosecution. The purpose was to find out if any criminal offense had been committed. The inquiry was called because requested by Mr. Briscoe who, in his petition requesting it, swore he had good cause to believe offenses against the law had been committed. Judge Ragan knew nothing other than the representations of Mr. Briscoe. No alleged facts were revealed to him by Mr. Briscoe. The hearing was to be public.

Mr. Briscoe confirmed Judge Ragan’s testimony and said he would object to any other attorney participating in the inquiry. He would object to any witnesses being called other than those presented by the District Attorney. He would object to cross-examination of witnesses. He likened the proceedings to a grand jury investigation where a person is entitled to none of the rights asserted by appellant. His view was there was no accused but this was purely an investigatory proceeding. He did not know the details of any offense committed. He had talked generally to some witness. There was a grand jury in session. He chose the court of inquiry because of the volume of work with other cases that the grand jury had. If this investigation were taken before it a backlog <of cases would occur. He could ask for another grand jury to be empaneled. One witness had appeared before the grand jury. The hearing was to be public. By having the court of inquiry, his office could more leisurely pursue the investigation.

The substance of Judge McClelland’s testimony was to complain of a public investigatory proceeding where he would be unable to defend himself against testimony that might be given because he could not call witnesses and could not cross-examine any called. He would be willing to meet the District Attorney in a forum where he was accorded these rights. He stated he did not know whether he could be hurt any more than he already was as a result of newspaper publicity that had occurred.

Article 886, C.C.P., provides in substance that if a justice of the peace has good cause to believe that an offense against the laws of the State has been or is about to be •committed, he may summon and examine any witness in relation thereto. It further provides that if from the statement of any witness it appears an offense has been committed, the statement of the witness shall be reduced to writing and sworn to and a warrant shall be issued by the justice for the arrest of the offender the same as if a complaint had been made and filed. Article 887 provides the justice of the peace may hold a witness in contempt of court who refuses to appear and testify and may fine the witness not more than $100.00 and attach and imprison the witness until he testifies.

It will be thus seen from a reading of Article 886 that no express provision is made with regard to whether the investigation shall be public or secret, nor is there a provision with regard to whether witnesses shall be entitled to counsel or the right of cross-examination of witnesses who may accuse them of some crime. The appellees have interpreted the statute, since there is no provision prohibiting such, as authorizing a public ex parte proceeding at which witnesses are examined and neither the witnesses nor someone accused by them can be represented by counsel who shall have the right of cross-examination. Nor is one who may be accused in the testimony allowed to call his own witnesses or defend himself. Very candidly, such a procedure as authorized by statute and here employed is to us shocking and is at variance with our conception of the minimum requirements of fair play, within the meaning of due process law. We do not suggest that appellees have in anywise exceeded the authority given by the statute or employed it unfairly. Our expressed views are directed solely to the statute which allows the procedure employed. The reasons for our views are many. Whatever our own views, we find ourselves bound by a decision of the Supreme Court of Texas upholding a comparable statute against every attack here made on Article 886. We are an intermediate court in our judicial system; we are bound by the decisions of a higher court; it is our duty to follow them, and litigants have a right to insist that we do. Any relief from the fundamentally unfair statute must come from the legislature, or from the Supreme Court through a re-examination of its decision.

In the case of Ex parte Jimenez, 159 Tex. 183, 317 S.W.2d 189, our Supreme Court upheld the constitutional validity of Article 9.02 of the Election Code, V.A.T.S. That statute provided that the District or County Attorneys in case of one county elections could investigate the conduct of such elections and the making, canvassing and reporting of the returns. The statute authorized the calling of the inquiry proceeding by the District Judge. It authorized an ex parte hearing before the District Judge at which the ballots and returns could be inspected and the -court could issue process for such witnesses and records relevant to the conduct of the election as should be requested by the attorney for the state. It provided the proceedings should be conducted in the usual manner as a court of inquiry. The court interpreted this as referring to the inquiry provided for by Article 886, C.C.P. It also gave the court authority to punish a witness for contempt of court for refusal to obey a subpoena or refusal to testify.

Pursuant to this statute the District Attorney initiated the court of inquiry to “inquire into violations of the election laws in Webb County.” Jimenez, who was Chief of Detectives of the City of Laredo, was subpoenaed as a witness and refused to testify. He was held in contempt and imprisoned. He sought his release from custody through an application for writ of habeas corpus filed in the Supreme Court. His contention was that the contempt order was void as the statute authorizing the ex parte proceeding was unconstitutional. There were numerous grounds alleged, among which were the same grounds of invalidity asserted in the case before us. The court overruled them all and remanded the relator Jimenez to custody. To quote the court’s opinion would serve no useful purpose. It would only lengthen this opinion.

Appellant also attacks the validity of Article 887 which authorizes the justice of the peace who is holding the inquiry to hold a witness in contempt of court for refusing to testify. Appellant relies on the cases of Ex parte Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, and Ex parte Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942.

Appellant has not been held in contempt and we seriously doubt he is in a position to question its validity. However, we do not deem the cited cases as here controlling. Each of those cases involved a contempt found by a judge who was sitting as a one man grand jury under the law of Michigan. In each case the proceeding out of which the contempt grew was held in secret. In the Oliver case the witness was in the secrecy of the proceeding held in contempt by the judge conducting the proceeding for allegedly falsifying, without any formal contempt charges being filed and without representation by counsel. The Supreme Court of the United States held that due process required that charges be formally preferred, that relator was entitled to counsel and a public trial. However, the court recognized the right of a court in open proceedings to punish for contempt for conduct committed in the immediate presence of the court.

In the Murchison case the court held due process would not permit the judge who acted as a one man grand jury to sit in a contempt proceeding against a witness that grew out of his alleged conduct in falsifying in his testimony given before the judge who was sitting in the secrecy of the grand jury proceeding.

Article 886 contemplates punishment for contempt for conduct occurring in the presence of the court in open court where that conduct involves solely refusal to testify. Since we have no secret inquiry here, we need not notice its validity where it is employed as a result of the witness’ behavior in secret.

We should here note the court of inquiry involved in this appeal has not ended but is in recess and is, according to statements made in open court on submission of this appeal, scheduled to resume on August 2, 1962.

The judgment of the trial court is affirmed.

COLEMAN, Justice

(concurring opinion).

The statute under consideration provides-no rules governing the procedure to be followed in the court of inquiry. Each justice of the peace is free to adopt his own rules, subj ect only to the constitutionally protected rights of the individual. While courts ordinarily are free to adopt rules of procedure where none are established by law, it would appear that, at a minimum, some guide lines should be provided for justices of the peace, many of whom are not well grounded in law. The procedure adopted in this case is essentially the same as that customarily used in this State. This procedure provides no protection for the reputations of persons unjustly accused. In this age of mass communication the testimony developed at a court of inquiry is immediately made known to all prospective jurors. It is the purpose of the law that the only testimony produced would be that tending to establish that an offense has been, or is about to be, committed. There is danger that the fairness of a subsequent trial would be adversely affected by such publicity.

I find, however, no constitutional inhibition against such public investigations, even where damage results to the reputations of those against whom no complaint is ever filed. If the testimony of a single witness establishes, in the opinion of the justice of the peace, the commission of an offense, a complaint must be filed. The accused then is afforded an opportunity to rebut these charges. If the testimony merely imputes criminal misconduct, or negligent conduct, not made criminal by statute, no opportunity to clear his reputation is afforded the person accused. Obviously opportunity for abuse of power is presented, particularly in the absence of rules of procedure.

It may reasonably be argued that by reason of the publicity engendered by a court of inquiry, evidence is procured which might not be discovered by a secret investigation. This possible benefit to society in the administration of justice should be weighed against the possible harm resulting to individuals. While we may feel that the law as now written is essentially unfair and is not a wise exercise of the powers of government, the wisdom of the legislative body in enacting the statute can only be judged by a subsequent legislature and the question of the essential fairness of the act within the meaning of the due process clause of the Constitution has been ■ answered by the Supreme Court of Texas m Ex parte Jimenez, 159 Tex. 183, 317 S.W.2d 189.

I concur in the opinion delivered by BELL, C. J.


author: BELL, Chief Justice.

text:
    Clem B. McClelland, Appellant, v. Frank BRISCOE et al., Appellees.
    No. 14065.
    Court of Civil Appeals of Texas. Houston.
    July 13, 1962.
    Rehearing Denied Sept. 13, 1962.

      J. Edwin Smith, Jack J. Rawitscher, Houston, Smith & Lehmann, Houston, of counsel, for appellant.
    Samuel H. Robertson, Jr., Carl E. F. Dally, Gus J. Zgourides, Asst. Dist. Attys., Houston, for appellees.
   BELL, Chief Justice.

This is a companion case to cause No. 14053, Tex.Civ.App., 359 S.W.2d 635.

After the Court of Inquiry had been conducted for several days, the Grand Jury of Harris County returned nine (9) indictments against appellant, he being named as co-indictee with other people not necessary to be named. Appellant, thereafter on June 22, filed in the same case originally filed by him, what is denominated a “Supplemental Petition.” In it he alleges the fact of the return of the indictments and states that he and his co-indictees now stand as accused in the investigation being conducted. He then urges, by reference, all of the allegations in his Original Petition and that to continue the inquiry in the light of the return of the indictments would deprive him of all the privileges, rights and immunities guaranteed him under the Constitutions of Texas and the United States and would deny him due process of law under the Constitution of the United States and due course of the law of the land under the Constitution of Texas. He then alleged the Court of Inquiry has only recessed and will reconvene July 2, 1962. (As noted in our opinion in Cause No. 14053, it has now been recessed to August 2, 1962.) Prayer is for a temporary injunction to restrain further proceedings in the Court of Inquiry.

Appellees answered challenging the jurisdiction of the trial court because the appeal in cause No. 14053 in this Court had been perfected.

The court, after a hearing, refused the injunction.

The court correctly overruled ap-pellees’ plea to the jurisdiction. Where grounds for a temporary injunction arose subsequent to the hearing on the original application for a temporary injunction and after the court had acted on the original application, the court had jurisdiction over the proceeding based on such subsequent developments.

A hearing was had on the Supplemental Petition. In it appellee Briscoe testified that before the Court of Inquiry was called he had had two witnesses appear before the Grand Jury. One of these was the bookkeeper of a banking institution, and one was an employee of appellant’s office. Further, he testified that prior to the Court of Inquiry he had taken no records before the Grand Jury relating to the Probate Court. During June 14 through June 18 a number of witnesses were examined by Mr. Briscoe in public. The witnesses were all those called to the stand by him and they were the ones subpoenaed by the Court at his request. ' Neither appellant nor his counsel was allowed to cross-examine the witnesses. The witnesses answered only questions asked by Mr. Briscoe. Mr. Briscoe did not concede appellant had the right to call witnesses. He did not remember that appellant requested to be allowed to call any. During the questioning of other witnesses appellant was not allowed to be present. Before the Court of Inquiry convened, only a few witnesses had been interviewed. He did not know what the testimony would be. A Grand Jury was in session.

A part of the transcript of the testimony developed at the Court of Inquiry was carried “physically” to the grand jury room. The transcript was not submitted to the Grand Jury nor were excerpts read from it.It was not left with the Grand Jury. No witness appeared before the Grand Jury after the Court of Inquiry and before indictments. The files of one witness were available to Mr. Briscoe before the Court of Inquiry was held. The Court of Inquiry was public and was covered by television, radio, photographers and the press. Mr. Briscoe stated he was not responsible for television being there.

It was stipulated that nine (9) indictments had been returned in which appellant was a co-indictee.

What we have said in cause No. 14053 is applicable here and need not be repeated.

The only new facts alleged relate to the return of indictments against appellant that makes him an “accused.” It is not alleged and is not evidenced by testimony that the Court of Inquiry will further inquire into the matters that are the subject matter of the indictments. No proper purpose could be thus served. We must presume appellees as public officials will not transcend their authority. However, as to other unrelated matters, it is permissible for the inquiry to continue. As to other matters inquiry would be within the purpose of the statute so long as it does not transcend the scope of the inquiry as defined by the order calling it.

On this appeal appellant argues orally that the evidence shows that the inquiry was used purely for the sake of exposure and this is not constitutionally permissible. No authorities are cited. The authorities we have read correctly so holding are those where a witness in a 'Congressional committee hearing has been held not to be in contempt for refusing to answer questions that were beyond the scope of legitimate inquiry by the committee. We do not mean to limit the constitutional protection to just such a situation. Here, however, there is no pleading that the Court of Inquiry will be employed to force disclosure purely for the sake of exposure. If there were any allegation or showing that the matters that are the subject matter of the indictments would be the further subject of inquiry, such a complaint would be valid.

The judgment of the trial court is affirm,ed.


text:
    CITY OF ABILENE, Appellant, v. John F. DOWNS et al., Appellees.
    No. 3691.
    Court of Civil Appeals of Texas. Eastland.
    July 20, 1962.
    Rehearing Denied Sept. 7, 1962.

      John Davidson, City Atty., Abilene, for appellant.
    Brooks & Fergus, Abilene, for appellees.
   COLLINGS, Justice.

John F. Downs, Vena Powers et al. and E. F. Shotwell et al., owners of farms adjoining each other and located east of the new sewer farm of the City of Abilene brought suit against the city in October, 1960, for damages to their lands. Plaintiffs alleged that the operation of the city’s sewer farm commenced on July 10, 1958, when the city began discharging approximately three million gallons of sewage per day on its farm; 'that in July," 1959, a second sewage line was connected to the farm which raised .the amount of sewage discharged to approximately 5.7 million • gallons per day, and in November, 1959, the third and final line was completed and connected and the entire sewage from the City of Abilene was discharged on the sewer farm. Plaintiffs al-■Ieged that the operation of the sewer farm caused obnoxious fumes and odors to invade their lands constituting a breeding ground for mosquitoes and flies which infested their farms. Plaintiffs founded their cause of action on Section 17, Article 1 of the Constitution of the State of^Texas, Vernon’s Ann.St.

Upon motion of plaintiffs the three causes were consolidated for trial. The City of Abilene in defense of plaintiffs’ claims pleaded the two year statute of limitation; that there were no permanent damages to plaintiffs’ lands; and that plaintiffs had failed to state a cause of action under Article 1, Section 17 of the Constitution. The city also filed a motion for change of venue alleging that it could not obtain a fair trial in Shackelford County.

The motion of the City of Abilene for a change of venue was supported by affidavits and no controverting affidavits were filed by plaintiffs. The motion was, however, overruled by the trial court. The mbtioii of the city ■ for a directed verdict at the conclusion of the evidence was also overruled. In answer to.special issues the jury found (1) that the operation of the city’s sewer-farm had caused odors, fumes and insects to invade plaintiffs’ lands; .(2) that quph jnyasion had resulted in permanent depreciation of the market value of plaintiffs’ lands; (3) that a depreciation of the market value of the plaintiffs’ respective lands had occurred in specified sums of money; and (4) that plaintiffs did not have knowledge that their land was damaged until July, 1959. Judgment was rendered on the jury’s verdict and the city has appealed.

It is urged by appellant that the court erred in overruling its motion for a change of venue; that there was a mandatory duty to grant a change of venue in the absence of controverting affidavits required by Rule 258, Vernon’s Tex.Rules Civ.Proc. Rule 258 provides as follows:

“Where such application for a change of venue is duly made,'it shall be granted, unless the credibility of those making such application, or their means of knowledge or the truth of the facts set out in the said application are attacked by the affidavit of a credible person; when thus attacked, the issue thus formed shall be tried by the judge, and the application either granted or refused.”

In connection with overruling appellant’s, motion for a change of venue it was found by the court that the motion was not timely filed. Although the motion was presented' promptly after the parties had announced ready for trial, it was found by the court that the cases involved had been consolidated and had originally been set for trial in December, 1960, but upon motion by appellant the causes were continued and set for trial on March 20, 1961; that the cases were then continued by agreement and reset for March 27, 1961; that the cases were then at the request of appellant reset for April 17, 1961, and that a jury panel was ordered for that date, and was at such time present and available and no other case had been set for trial on that date; and at no time prior thereto did appellant apprise the court of its desire to file a motion for change of venue. It was under these circumstances and based upon these findings that the court found that the motion for change of venue was not timely filed, and was filed at such a time as to cause delay and disruption of the court’s docket, and for that reason should be overruled.

There is no question but that the general rule is that an uncontradicted application for change of venue should be granted. However, in Ellis v. Stearns, Tex.Civ.App., 27 S.W. 222, it is stated as follows:

"We understand that parties litigant must assert their rights before the trial court, as a rule, at such a stage of the proceedings as will not * * * delay the business of the court. It is the right of the trial court to so govern its proceedings as to secure orderly dispatch of its business.”

In the case of Peck & Hickernell v. Bowers Oil Company, Tex.Civ.App., 246 S.W. 751, it was indicated that a change of venue should be made at the earliest opportunity and held that the denial of a motion for change of venue because it was filed too late was not an abuse of discretion. In this case also it was recognized that generally an uncontradicted application for change of venue should be granted. See also Waid v. City of Ft. Worth, Tex.Civ.App., 258 S.W. 1114. We cannot agree with appellant’s contention that the holdings in these cases require a change of venue under the facts of the instant case as hereinabove substantially set out. In our opinion the court did not abuse its discretion in overruling the motion.

It is contended in appellant’s 1st point that the court erred in overruling its motion for an instructed verdict because the evidence shows as a matter of law that appellees’ causes of action, if any, were barred by the two year statute of limitation. Article 5526, Vernon’s Ann.Tex.Civ. St. provides as follows:

“There shall be commenced and prosecuted within two years after the cause of action shall have accrued and not afterward, all actions or suits * * * of trespass for injury done to the estate or the property of another.”

Appellee Downs’ petition was filed on June 17, 1960, and the Powers and Shotwell petitions were filed October 20, 1960. Citations were served on the city in each of these cases on October 25, 1960. The first question to be determined in this connection is: When did appellees’ causes of action accrue?

Construction of the city’s sewage disposal plant, consisting of concrete sedimentation tanks, holding tanks, two large digestor tanks and a central gas burner was completed in 1958. The first sewer line to the new plant was tied in on June 18, 1958, and the plant commenced operation for the disposal of sewage on July 10, 1958. The report of an engineering firm and other evidence indicated that the farm could properly handle only about 3,000,000 gallons per day. At the time the operation began, slightly over 3,000,000 gallons of sewage per day flowed to the farm, but in July, 1959, the flow was increased to 5,690,000 gallons per day. The evidence shows that after the plant was put into service there were two substantial and material alterations in its operation and use. The first of these was in July, 1959, when the second sewage line was connected to the farm, and in November, 1959, when the remainder of the city’s sewage was directed to the plant. The jury found that appellees Downs, Shotwell and Powers acquired knowledge that their land was damaged as a result of obnoxious odors coming from appellant’s sewage disposal plant in July of 1959. Appellant contends that the evidence shows conclusively that the invasion of appellees’ lands from odors and insects commenced in July, 1958; that the evidence shows conclusively that ap-pellees not only anticipated such invasion but had full knowledge of it in July of 1958; that limitation therefore ran against the claims of Shotwell and Powers because their suits were not brought until October of 1960, and that limitation ran against the claim of Downs because although his suit was filed in less than two years prior to July of 1958, citation was not served upon appellant city until October, 1960.

The effect of the testimony of each of the appellees was that the odor and other annoying conditions resulting from the operation of the plant were not of such a nature as to constitute an inconvenience or hindrance to them and their homes until a time well within the two year period prior to the filing of these suits. Mrs. Downs testified that the first invasion of their property by odors and mosquitoes occurred in the latter part of September, 1959; that flies which, in her opinion, came from the sewage farm appeared on their premises in July, 1960, grey mosquitoes appeared in September or October, 1960, and sand flies in February, 1961. Mr. Downs stated that although there was some odor in 1958, it was not annoying until September, 1959. Mr. Shotwell testified that the odors were not bad until late in 1959 and that mosquitoes also appeared about that time. Mr. Powers testified that odors became bad enough to complain about in November, 1959, and that he did complain at that time; that the odors and insects became really bad in the summer of 1960 and the insects could be controlled until that time. There was testimony from witnesses called by appellant city to the effect that complaints were received from land owners in the area that sewer odors were emanating from the sewer farm during the summer of 1958, but the testimony of appellees is not in accord therewith. The evidence does show that some of appellees had previously objected to the location of the plant because they feared that there would be odors, but there is no conclusive evidence that they actually complained of such odors or that the odors became bad enough to complain about until late 1959.

A city is liable under the Constitution for reduction in the value of land resulting from the construction and operation of a sewage disposal plant and this is true regardless of the question of negligence. City of Abilene v. Bailey, Tex.Civ.App., 345 S.W.2d 540, (Ref. N.R.E.); Brewster v. City of Forney, 223 S.W. 175, Tex.Com.App.; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57; Section 17, Article 1, V.A.T.C. In determining when a cause of action accrues in such a case the holdings and the principles announced in the following cases are thought to be controlling.

The case of Houston Water Works Company v. Kennedy, 70 Tex. 233, 8 S.W. 36, was a suit in which Kennedy sought to recover damages because of the act of an employee of the water company in cutting a portion of an arch to make way for a water pipe and thereby removing the support from the east corner of Kennedy’s building, causing it to settle, crack and break. The Supreme Court in passing upon the matter stated:

“The arch and house alleged to have been injured were the property of the appellee at the time the arch was cut. This was an act wrongful towards the owner of the property, for which an action might have been maintained as soon as the tort was committed. When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until the injury is sustained.”

The Houston Water Works Company case was cited and approved by our Supreme Court in 1954 in the case of Tennessee Gas Transmission Company v. Fromme, 153 Tex. 352, 269 S.W.2d 336. In 1957 in the case of Lance v. City of Mission et al., Tex.Civ.App., 308 S.W.2d 546 (Writ Ref. N.R.E.), it was stated as follows:

“It is settled that where a public permanent improvement is such that it causes injury to property, a single cause of action for permanent damages arises at the time it first becomes apparent that such damage will result, and is barred by the statute of limitations two years thereafter. Vernon’s Ann.Civ.St. art. 5526. City of Texarkana v. Rhyne, Tex.Com.App., 86 S.W.2d 215; Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561; Wichita County Improvement District No. 1 v. Pearce, Tex.Civ.App., 59 S.W.2d 183; Schubert v. Guadalupe County, Tex.Civ.App., 189 S.W.2d 514; City of Dallas v. Winans, Tex.Civ.App., 262 S.W.2d 256.”

In Beck v. American Rio Grande Land & Irrigation Company, Tex.Civ.App., 39 S.W.2d 640, (Writ Ref.), it was held that limitation on recovery of damages to land resulting from water seepage runs from the time injury becomes apparent or discoverable by due diligence.

In the case of Kolberg v. Hidalgo County Water Improvement District No. 2, 110 S. W.2d 961, Judge Murray of the San Antonio Court of Civil Appeals states the rule in such cases as follows:

“When appellants’ land was first visibly affected and injured by seepage from appellee’s canals and barrow pits, they had a cause of action against the water district, not only for the damage then inflicted, but for all future damage which might be sustained by reason of the continuation of the seepage, and therefore a suit brought more than two years after the land was visibly affected by the seepage is barred in this state by the two-year statute of limitation.”

In Gulf Oil Corporation v. Alexander, Tex.Civ.App., 291 S.W.2d 792, (Ref. N.R. E.), it was held that though salt water from an oil and gas lessee’s salt water disposal pit invaded water bearing formations underlying part of an adjoining landowner’s land more than two years prior to the owner’s institution of a suit for damages caused by the pollution, that where the landowner first discovered invasion of the subsurface fresh water strata by salt water within two years of the time of bringing suit the ac tion was not barred by the two year statute of limitation.

In United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 1385, 91 L.Ed. 1789, the Supreme Court of the United States in discussing the question of limitation in a case in which the government did not condemn lands needed in a public works project but “left the taking to physical events, thereby putting on the owner the onus of determining the decisive moment in the process of acquisition by the United States when the fact of taking could no longer be in controversy”, the court used the following language :

“The source of the entire claim — the overflow due to rises in the level of the river — is not a single event; it is continuous. And as there is nothing in reason, so there is nothing in legal doctrine, to preclude the law from meeting such a process by postponing suit until the situation becomes stabilized. An owner of land flooded by the Government would not unnaturally postpone bringing a suit against the Government for the flooding until the consequences of inundation have so manifested themselves that a final account may be struck.”

The above quotation from the Dickinson case was cited with approval by our Supreme Court of Texas in the recent case of Brazos River Authority v. City of Graham, Tex., 354 S.W.2d 99. In this connection see also: Houston Natural Gas Corporation v. Pearce, Tex.Civ.App., 311 S.W.2d 899; Wichita County Water Improvement District No. 1 v. Pearce, Tex.Civ.App., 59 S.W. 2d 183; Herndon v. G. C. McBride, Inc., Tex.Civ.App., 342 S.W.2d 10; Jefferson County Drainage District No. 6 v. Langham, Tex.Civ.App., 81 S.W.2d 747; City of Stillwater v. Robertson, 192 Okl. 395, 136 P.2d 923.

The causes of action asserted by appellees herein are not based upon any wrongful action on the part of the City of Abilene. Ap-pellees seek damages on account of injuries “subsequently accruing from and consequent upon” action by the city which was lawful. According to the above cited cases a cause of action does not accrue in such a situation “until the injury is sustained”, or until “it first becomes apparent that such damage will result”, or when the “land was first visibly affected and injured”, or when the “landowner first discovered the invasion of” his subsurface fresh water by salt water, or when the “injury becomes apparent or discernable by due diligence”. A careful reading of these cases does not show a conflict in their holdings but simply that the rule is stated in slightly different form in each case as it is applicable to the various fact situations presented. The trial court did not err in the submission of special issues 7, 8 and 9 which inquired when appellees had knowledge that their land was damaged. Appellant’s point number 3 complaining of the submission of these issues is overruled.

The jury found, in effect, that ap-pellees Downs, Shotwell and Powers acquired knowledge that their land was damaged as a result of obnoxious odors coming from appellant’s sewage disposal plant in July of 1959. The evidence, as above substantially set out, in our opinion supports the finding. Contrary to appellant's contention such evidence does not conclusively show that the invasion of appellees’ lands from odors and insects commenced in July of 1958, and certainly does not conclusively show that such invasion commenced with their knowledge at that time. Judicial notice is taken of the fact that odors, insects or mosquitoes to a greater or lesser extent might be expected to exist around most farms because of the presence of tanks, livestock and barnyards. Even though there might have been slight presence of odors, insects and mosquitoes as a result of the first operation of the plant when only about three million gallons of sewage per day flowed to the farm the evidence does not show that the condition was such as to be readily discernible to appellees. Until the condition did become readily discernible or apparent there was actually no injury to ■ appellees’ lands. Appellant’s first point is overruled.

Appellant’s fourth point complains of the manner of the submission of the issues on damages. Special issue number 4 inquired concerning the reasonable cash market value of each of appellees’ farms immediately prior to the beginning of “such depreciation in value, if any” and special issue number 5 inquired concerning the reasonable cash market value of each of appellees’ farms immediately after the completion of the depreciation in value, if any. Appellant urges that there was no fixing of a specified time of injury nor a specified standard which would permit an intelligent answer to such issues; that such issues as submitted permitted the jury to fix the amount of depreciation at any time after the injury occurred and could have the effect to permit an award of damages approximating the full value of the lands. Appellant further contends that the evidence was insufficient to support the submission of any of the issues on damages. This point is overruled. There was ample evidence to support the submission of the damage issues. Appellees were entitled to the submission of damage issues which would give them the benefit of all permanent damages resulting and subsequently accruing from the obnoxious odors, flies, gnats and mosquitoes emanating from appellant’s sewage disposal plant. In June of 1958 about one-third of the city’s sewage was directed to the plant and according to appel-lees’ testimony no damage was then discernible. It was more than a year later that the other approximately two-thirds of the city’s sewage began to flow to the city’s sewage farm and the evidence then indicated great damage. Appellees were entitled to recover for these damages. The issues in our opinion fairly submit the question of damages. No specific date is mentioned but the inquiry concerning the value of the land immediately prior to “such depreciation in value, if any” and the market value of the land immediately after the completion of such depreciation adequately identifies appellees’ damages in connection with obnoxious odors, flies and mosquitoes and appellees were entitled to recover therefor. Neither the pleadings nor the evidence indicate any other depreciation in the value of the land which was not attributable to the conditions resulting from the operation of appellant’s sewer farm.

It is contended in appellant’s 5th point that the court erred in failing to submit an issue inquiring whether the acts of the city were such as to constitute a continuing and permanent nuisance. It is held that a city is liable under the constitution for diminution in market value of land due to noxious odors and insects being cast thereon as a result of the construction and operation by the city of a sewage disposal plant regardless of the question of negligence or of nuisance. In the instant case it was found by the jury that the operation of appellant’s sewage disposal plant had caused noxious fumes, odors and insects to come upon appellees’ land. It has also been held that such a finding amounts to a finding that the operation of a sewage disposal plant creates a nuisance. City of Abilene v. Bailey, Tex.Civ.App., 345 S.W.2d 540. Appellant’s 5th point is overruled.

We also overrule appellant’s 6th point in which it is contended that the court erred in submitting special issue number 3 which inquired whether the damages to ap-pellees’ farms were temporary or permanent. Appellant urges that the uncontro-verted evidence shows that the damages, if any, to appellees’ farms are temporary and not permanent, and that the evidence is insufficient to show that such damages are permanent. Each of the appellees testified concerning the damages to their land which they described as beginning in approximately September of 1959 and continuing until the date of the trial. Each testified that odors continually came from the farm after September of 1959 and that there was no diminishing in the insect population which came from the farm. They testified that the situation is continuous and that it is permanent. This and other like evidence was sufficient to present a fact issue on the question of permanent damages. A witness for the city did testify that the situation could be improved by adding more la goons and holding ponds but he admitted that there would always be odors in connection with a sewer farm. Reports of engineering firms also indicated that the storage problem could be alleviated by the use of secondary treatment facilities, but the cost of putting in such a secondary plant was estimated to be between $714,553.00 and $939,152.00. It was not intimated that there was a complete remedy to the odor or insect problem. Although the witness for the city stated that they expected to make efforts to remedy the situation, there was no indication by the city that these expenses would be incurred or .that the city expected to discontinue the operation of the plant. Appellant’s 6th point is overruled.

In appellant’s 7th point it is contended that the court erred in rendering judgment for appellees on the verdict because the verdict is excessive. Appellant contends that a remittitur should be required. The jury found depreciation in the value of appellee Downs’ land in the amount of $38,700.00, of appellee Shotwell’s land in the amount of $13,540.00 and of appellee Powers’ land in the sum of $16,300.00. It is urged by appellant that there was no evidence of any physical damage to appel-lees’ lands and no evidence of any damage to the improvements on such lands. Appellant contends that the only damage even attempted to be shown by appellees was damage because of personal inconvenience on account of odors and insects and of like discomfort to cattle kept upon appellees’ lands. This point is not well taken. The measure of damages in such cases is the depreciation in market value. There can be no question that excessive insects and odors can interfere with the use of property and result in a depreciated market value. The evidence of such damage supports the verdict.

Appellant’s 8th and 11th points are concerned with the question of whether or not the operation of appellant’s sewer farm was the cause of insects coming upon ap-pellees’ lands. Appellant contends that the court erred in admitting evidence of dead insects, flies and mosquitoes because it was not shown that such insects came from appellant’s sewer farm. The contention is not well taken. Mrs. Downs testified that they first had insects from the farm in September of 1959 after the large increase of sewage to the city’s farm; that the only insects before had been heel flies, horn flies and grasshoppers. Mrs. Downs further stated that she had seen the insects blowing from the direction of the farm and stated that the insects had increased 1000% or more during this period. There was other evidence to the same effect tending to show that such insects did come from appellant’s sewer farm to appellees’ lands.

Appellant’s 11th point urges that the court erred in submitting special issues numbers 2(a), (b), and (c) for the reason that there was insufficient evidence upon which to submit said issues because there was no evidence that the increase in the incidence of insects on appellees’ lands was a result of the operation of appellant’s sewer farm. The issues in question were concerned with alleged depreciation in the market value of appellees’ lands. For the reasons stated above this point is not well taken. There was ample evidence tending to show that the insects and odors in question came from the sewer farm and resulted in depreciation to appellees’ lands.

Mrs. Albert Hendrix was called as a witness by the City of Abilene and asked by appellant’s attorney if she could remember when the city’s sewage farm operation commenced. Mrs. Hendrix stated that she could not remember the date and also stated uncertainty as to when the odors and insects were first noticed by her and became obnoxious. In appellant’s 9th point it is contended that the court erred in refusing to permit its attorney to refresh the memory of Mrs. Hendrix with prior testimony in an earlier case as to the time and intensity of odors emanating from appellant’s sewer farm. Appellant contends that such action of the court materially prejudiced its defense based upon the statute of limitations and constitutes error. We cannot agree with this contention. Certainly no reversible error is shown. Mrs. Hendrix’s testimony in the earlier case was introduced in its entirety by appellant. Such testimony is not radically inconsistent with her testimony in the instant case. Actually such prior statement was not admissible as substantive evidence of the truth of the fact stated therein. Although a party may impeach its own witness by prior conflicting statements where the witness proves adverse and the party is surprised, such a situation does not here exist. Mrs. Hendrix testified to no fact adverse to appellant by reason of which appellant could claim surprise and injury. Mrs. Hendrix simply couldn’t remember. Under these circumstances no reversible error is shown.

Special issue number 1(a), (b) and (c) inquired of the jury whether or not they found “from a preponderance of the evidence that the sewage disposal operation in question has caused objectionable matter, if any, such as noxious fumes, odors or insects, if any, to come upon” the lands of appellees. In appellant’s 10th point it is contended that the court erred in submitting such issues to the jury for the reason that same “constituted a comment on the weight of the evidence and the assumption of a controverted fact issue in that it assumed that there was no greater controversy as to insects emanating from the sewer farm than odors, which was uncon-troverted.” Appellant also urged that the evidence was insufficient to support the submission of an issue inquiring whether insects had invaded appellees’ lands from the operating of appellant’s sewer farm. We overrule the point. As previously indicated there was ample evidence presenting fact questions to support the submission of such special issues. The contention that the manner of submission was a comment on the weight of the evidence is likewise not well taken. We are unable to see any material assumed fact issues. It is noted that the complaint here made concerning special issue number 1(a), (b) and (c) was not made in appellant’s exceptions to the court’s charge. Actually the matter was waived.

We overrule appellant’s contention that the court erred in failing to sustain its motion for directed verdict on the ground that any damages suffered by appellees were suffered in common with the community and that such damages were not recoverable. This contention has been decided adversely to appellant by this court and our Supreme Court in City of Abilene v. Bailey, supra, and in Powell v. Houston T. C. R. Co., 104 Tex. 219, 135 S.W. 1153, 46 L.R.A.,N.S., 615.

The judgment is affirmed.