text:
    Carl Clifton CAUGHMAN and wife, Bobble Ruth Hollan Caughman, Appellants, v. Olvls Vanburn GLAZE, Appellee.
    No. 14522.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1967.
    Rehearing Denied March 15, 1967.

      William B. Smith, Lynch, Chappell & Allday, Midland, for appellants.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   CADENA, Justice.

Plaintiffs, Carl Clifton Caughman and wife, Bobbie Ruth Caughman, appeal from a judgment, based on a jury verdict, denying them recovery against defendant, Olvis Vanburn Glaze, for injuries suffered by them when their car was struck from the rear by a vehicle driven by defendant. The judgment also denied defendant recovery on his cross-action, but he has not appealed from such ruling.

The jury found that defendant was guilty of the following acts or omissions, each of which was found to be a proximate cause of the collision: (1) Failure to properly overtake and pass plaintiffs’ car on the left; (2) failure to change the course of his vehicle to the right just before the collision; (3) following too closely; and (4) failure to properly control the speed of his vehicle. However, the four negligence issues submitted in relation to each of such acts and omissions were answered favorably to defendant. The jury further found that Mr. Caughman negligently failed to keep a proper lookout and that such negligence was a proximate cause of the collision.

Plaintiffs contend that the jury’s negative answers to the issues relating to defendant’s negligence are contrary to the great weight and preponderance of the evidence; that the findings of contributory negligence on the part of Mr. Caughman are without support in the evidence; that the trial court erred in refusing to submit special issues tendered by plaintiffs relating to discovered peril and in denying plaintiffs permission to file, at the conclusion of the evidence, a trial amendment asserting the doctrine of discovered peril as a ground of recovery; and that the trial court abused its discretion in refusing to grant plaintiffs a new trial because of jury misconduct.

Where jury findings are challenged as being contrary to the overwhelming weight and preponderance of the evidence, we must consider all of the evidence in the case, and set aside the verdict and remand the cause for a new trial if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. The evidence supporting the verdict is to be weighed along with other evidence in the case, including that which is contrary to the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Mr. Caughman testified that as he was approaching the City of Lamesa from the south on Highway 137, he began to slow down in obedience to a “Speed Zone Ahead” warning sign. Before he began to slow down he looked in the rear-view mirror and saw no vehicles behind him. There is no evidence in the record indicating where defendant’s automobile was at this time. Although defendant testified that he turned onto Highway 137 from a side road, there is no evidence indicating the location of such side road. According to Mr. Caughman, the point of collision was some 800 feet beyond the point at which he started to decelerate. He testified that at the time defendant’s car struck his vehicle from behind he was traveling at a speed of about 35 miles per hour. Lawrence Jackson, who operated a service station near the scene of the accident, estimated that the Caughman vehicle was moving at a speed of 15-25 miles per hour at the time of impact. Jackson testified that he was watching the Caughman car because of his belief, based on the slow speed of the vehicle, that Mr. Caughman was going to turn into the service station.

Defendant testified that, as his car reached the crest of a “rise” in the highway, he could see the top of plaintiffs’ automobile about one-eighth of a mile away. He added that, because of the topography of the area, he did not see the Caughman vehicle again until, upon reaching the summit of another high point in the road, he saw it about 100 or 150 feet ahead. He immediately applied his brakes, leaving about 90 feet of skid marks before he hit the rear of the Caughman car. Defendant’s car stopped immediately upon striking plaintiffs’ automobile.

The evidence does not disclose the speed at which defendant’s automobile was moving prior to the time that he applied his brakes. The service station operator testified that, as he was watching the Caugh-man car, he saw defendant’s vehicle out of the corner of his eye. He was unable to give any estimate as to the speed of defendant’s car, but stated that he “thought” it was moving “maybe a bit faster than normal traffic.” Although the speed limit was 70 miles per hour, there is no evidence concerning the speed at which “normal traffic” moved along this portion of the highway.

The evidence is undisputed that there was no oncoming traffic to prevent defendant from passing on the left, although there is evidence to the effect that if defendant had passed on the left he would have been on the left side of the highway at a point within 100 feet of an intersection. The evidence also shows that defendant could have passed safely to the right, although this would have required that he leave the paved portion of the highway.

Before we can disregard the jury’s findings that defendant’s failure to pass on the left or right was not negligence, we must be prepared to hold that plaintiffs established, by a preponderance of the evidence, that the ordinarily prudent man would not have acted as did the defendant under the same or similar circumstances. The evidence furnished no basis for an estimate, as distinguished from sheer speculation, concerning defendant’s speed. The jury, therefore, had no way of determining whether defendant, as he came to the crest of the hill and saw plaintiffs’ car some 150 feet away, had time to comprehend the situation and react by changing the course of his vehicle. In determining what an ordinarily prudent man would do under given circumstances, the time available for realization and reaction is of extreme importance. Under the evidence in this case, we cannot say that the jury’s failure to find negligence was against the preponderance of the evidence.

Plaintiffs insist that, since plaintiff failed to pass on the left or right, he was guilty of a violation of Sections 54(a) and 55 of Art. 6701d, Vernon’s Ann.Civ.St. (1960), and that such failure constituted negligence as a matter of law. Sec. 54(a) provides that a driver overtaking a ve-hide proceeding in the same direction “shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.” It is clear from the language of Sec. 54(a) that the violation there denounced is passing on the right, except where passing on the right is permitted under the provisions of Sec. 55. The evidence, therefore, does not disclose a violation of Sec. 54(a).

We find no basis for holding that defendant was guilty of negligence per se in failing to pass to the right. Sec. 55 merely enumerates the circumstances under which passing on the right is permitted. It imposes no duty to pass on the right. Further, that section expressly prohibits passing on the right when such movement can be accomplished only by driving off the pavement or main-traveled portion of the roadway.

In connection with the finding that defendant failed to control the speed of his vehicle properly, it must be noted that, by way of an explanatory instruction, the jury was told that “in every event, speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on the highway.” While it is unnecessary for us to consider the propriety of such an explanatory instruction, it is apparent that it permits the jury to infer, from the fact that a collision occurred, a failure to control speed properly. Since it is undisputed that a collision did occur, the jury finding of improper control of speed is not surprising. However, in view of the absence of evidence as to defendant’s speed, it cannot be said that the great weight and preponderance of the evidence demanded a finding that defendant failed to act as an ordinarily prudent man would have acted under the same or similar circumstances.

The issue inquiring whether defendant was following the Caughman vehicle too closely was accompanied by an explanation embodying the language found in Sec. 61 (a) of Art. 6701d. Plaintiffs say that the jury finding that defendant was following too closely thus establishes a violation of Sec. 61(a) and that, therefore, defendant was guilty of negligence as a matter of law.

Article 670Id is a comprehensive act originally passed in 1947. It is a codification of many statutes then in existence, and includes, also, many new statutory regulations and the transposition into statutory form of many common law rules of conduct. But not every violation of Art. 6701d constitutes negligence as a matter of law. In Schwab v. Stewart, 387 S.W.2d 939 (Tex.Civ.App.1964, writ ref’d, n. r. e., 390 S.W.2d 752, Tex.Sup., 1965), it was held that a violation of Sec. 61(a) did not establish negligence as a matter of law. By absolving defendant of negligence, the jury found, in effect, that, although he violated Sec. 61(a), he was not without excuse in doing so.

Plaintiffs’ requested special issues relating to discovered peril were substantially in the form approved by the Supreme Court in Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112, 118 (1942). However, even if it be assumed that the evidence in this case raised the question of discovered peril, we believe that it also fairly raised the question of whether defendant had reason to believe that plaintiffs would be able to extricate themselves from their position of peril. Where the issue of possible extrication is raised by the evidence, the issues relating to discovered peril must embody the element of possible extrication. Sisti v. Thompson, 149 Tex. 189, 229 S.W.2d 610 (1950). Since plaintiffs’ requested issues did not embody the element of probability of extrication, they were not, under the facts of this case, “substantially correct,” and, therefore the trial court did not err in refusing to submit them. Texas Rules of Civil Procedure, rules 273, 279; Hodges, Special Issue Submission in Texas 166-167 (1959).

Plaintiffs’ proffered trial amendment, insofar as it related to discovered peril, charged that defendant was negligent in “failing to use the means at hand to avoid the collision, having due regard for his own safety and the safety of his automobile, after he knew and realized” that plaintiffs’ automobile was in a perilous position. Even if filing of the trial amendment had been permitted, plaintiffs would not have been entitled to submission of the issues which they requested. Under these circumstances, the error, if any, of the trial court in refusing leave to file the trial amendment was harmless.

Since we have concluded that the jury’s refusal to find defendant negligent is not contrary to the great weight and preponderance of the evidence, and that plaintiffs were not entitled to submission of their requested special issues pertaining to discovered peril, the question of the sufficiency of the evidence to support the jury’s finding that Mr. Caughman was negligent is rendered academic. Even if we should conclude that there was no evidence to support such finding, there would be no basis for the rendition of a judgment other than that entered by the court below.

Plaintiffs’ complaints of jury misconduct are based on the following incidents: (1) The bailiff, at the request of one of the jurors, furnished the jury with a magnifying glass which was used for the purpose of studying pictures of the highway in order to determine whether, at the scene of the collision, there was a double yellow line on the highway. (2) The jury considered certain matters not in evidence, including the question of whether either party had received a traffic ticket; whether there was a double yellow line on the highway; and the personal knowledge of jurors con-concerning the topography of the highway near the scene of the collision. (3) A juror communicated with the defendant during the course of the trial. (4) The jury agreed on a result before they answered the special issues. (5) One of the jurors, prior to the trial, had read a magazine article questioning the honesty of personal injury claims based on so-called “whiplash” injuries.

It has frequently been held that the use of a magnifying glass by members of the jury during deliberation is not error. The use of such a device merely promotes an understanding of the evidence introduced and does not amount to the reception of new evidence. J. H. Robinson Truck Lines v. Ragan, 204 S.W.2d 662 (Tex.Civ.App., 1947, no writ).

There was some speculation in the jury room as to whether either Mr. Caughman or the defendant had received a traffic violation ticket. The testimony of the juror Wood shows that the members of the jury were unable to determine whether either party had received a traffic ticket. There is nothing in the record before us to indicate that such speculation affected the verdict in any way.

The same thing is true concerning the discussions of the existence of a double yellow line. After examining the photographs introduced in evidence with a magnifying glass, the jurors were unable to form any conclusion one way or the other.

The evidence relating to the discussions of the condition of the road is rather sketchy. Defendant had testified that the road was hilly. This point was not seriously disputed. Mr. Caughman stated that there was a “grade” in the highway at about the point where the road entered Lamesa. In view of the lack of specific information concerning the nature of the discussions in the jury room, the time and circumstances of such discussions, and the fact that the topography of the road was not a hotly disputed item, we do not believe that plaintiffs have shown that such discussions probably produced an unfair result. Warren v. Dikes, 404 S.W.2d 946 (Tex.Civ.App.1966, no writ).

There is evidence that, during one of the recesses for meals, defendant said something to one of the jurors. The juror who testified to this incident was rather vague about the nature of the discussion. At one point he said that somebody looked at his watch and said, “Well, we’re about here on time.” He said defendant spoke to the juror “in general, you know, just like me and you would speak.” He heard nothing said concerning the lawsuit. Finally, he said that he “didn’t see a conversation,” and that the interchange amounted to no more than an exchange of salutations.

There is nothing in this evidence to indicate even the possibility of prejudice to plaintiffs. There is no resemblance between the vague evidence here and the situation which existed in Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958). We do not interpret McCaslin as holding that all communications between a party and a juror will require a finding of prejudicial misconduct.

One of the jurors executed an affidavit to the effect that the members of the jury agreed beforehand to find defendant “a bit more negligent” than was Mr. Caughman, and that they answered the special issues accordingly. The testimony of this juror is vacillating and inconclusive. He testified that the affidavit was “misleading” as to the procedure followed in the jury room. Even if his testimony be interpreted in the light most helpful to plaintiffs, we find nothing which compels us to conclude that the trial court abused its discretion in refusing to find the existence of a binding agreement to reach a certain result and to answer the special issues in a manner to effectuate such agreement. Casual references or discussions of the fault of the parties or the consequences of the findings are not fatal so long as no juror is impelled thereby to answer without reference to the evidence. 3 McDonald, Texas Civil Practice (1950), § 14.12, p. 1245.

Some months prior to the trial, one of the jurors read an article in a national publication about injuries resulting from automobile collisions. The article contained a discussion of claims based on “whiplash” injuries. This juror testified that, when the doctor who testified for plaintiffs used the expression “whiplash,” he, the juror, listened more attentively than he might have done had he not read the article. The juror did not mention the article to any other juror. There is nothing to indicate that the reading of the article in question by this juror affected the verdict in any way.

Finally, plaintiffs insist that the fact that the jury disregarded the evidence concerning the injuries sustained by plaintiffs shows that the jury was prejudiced against plaintiffs. We find no evidence of bias and prejudice on the part of the jury. In this connection, it should be pointed out that, after finding that Mr. Caugh-man’s negligence was the proximate cause of the accident, the jury found that defendant had suffered no personal injury and that his car had not been damaged.

The judgment of the trial court is affirmed.

KLINGEMAN, J., not participating.

      . See. 57 (a) 2, prohibits driving any vehicle to the left side of the roadway when approaching within one hundred feet of an intersection.

      . This Section provides: “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the conditions of the highway.”

      . The testimony of the juror Wood, on direct examination, was as follows: “Q. Mr. Wood, we move further along, and concerning the road outside of Lamesa, the road leading into Lamesa. A. Yes, sir. Q. And I believe you stated there were discussions in the jury room concerning this road that leads into Lamesa, is that correct, sir? A. That’s correct. Q. And people had of their own — jurors of their own personal knowledge, discussed their own personal knowledge of the hills and dales or hills and valleys on the road there. A. That’s correct. Q. Or lack of them. And that you discussed the effect that such hills and dales would have on cars, whether they were stopped or going slow, or going fast, and things of that nature. A. That’s correct. Q. You discussed this, of course, in relation to this accident? A. This particular accident, yes, sir.”


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    MERCANTILE NATIONAL BANK AT DALLAS, Independent Executor of the Estate of Wyatt C. Hedrick, Deceased, Appellant, v. R. A. HUDGENS, Appellee.
    No. 16795.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 10, 1967.
    Rehearing Denied March 10, 1967.

      McDonald, Sanders, Wynn, Ginsburg, Phillips & Maddox and Atwood McDonald, Fort Worth, for appellant.
    Baker, Jordan & Foreman, and Joe N. Boudreaux, Dallas, for appellee.
   OPINION

MASSEY, Chief Justice.

Form of the suit was on contract for the furnishing of labor and materials .in connection with a sizeable painting contract, fully accomplished on the part of R. A. Hudgens, plaintiff, and done in connection with the refurbishing of a hotel in Augusta, Georgia.

In connection with the portion of the contract sued upon, same was alleged to be the obligation of Wyatt C. Hedrick, now deceased, for the estate of whom the Mercantile National Bank at Dallas became independent executor. Thus the bank became defendant in plaintiff’s suit.

Following a jury trial judgment was rendered upon verdict in favor of plaintiff, for the full amount allegedly owing under the painting contract. Pursuant to stipulations judgment was furthermore rendered in behalf of the plaintiff for attorney’s fees, if and in the event an award of attorney’s fees were proper under the provisions of Vernon’s Ann.Tex.St. Art. 2226, “Attorney’s fees”.

We hold that plaintiff was justly entitled to the judgment in the amount representing the unpaid balance of his painting contract, but he was not entitled to recover attorney’s fees.

In 1963 there was in existence a corporation called the Bon Air Hotel, Incorporated. Its only property was a hotel building and premises in Augusta,- Georgia. Said building was an old one. The corporation proposed to refurbish and restore it. It was particularly desired by Mr. Wyatt C. Hed-rick that the work be completed for the hotel to be opened in time for the annual “Master’s Golf Tournament” in 1964.

Hedrick was majority stockholder in the Hotel corporation. By March 20th, 1964 Hedrick had also become a substantial creditor thereof. The corporation owed him approximately $65,000.00. It developed that the corporation was under-capitalized, and a few days before March 20th, 1964, the officers thereof had informed plaintiff that it could not pay him the amount of $28,574.95 contractually scheduled to be paid as of March 1, 1964. Plaintiff’s painting contract was with the Hotel corporation. It provided for payments as the work progressed.

Plaintiff prepared to call his workmen off their jobs at the hotel, and to stop deliveries of materials incident to completion of the painting work. Officers of the Hotel corporation discussed with him the probability that something might be arranged by or through Mr. A. B. Cadenhead, a representative of Mr. Hedrick, who was to come to Augusta from Fort Worth, Texas. Plaintiff was aware that Hedrick was the principal stockholder of the corporation and that the corporation had less than $100.00 on hand.

Upon Mr. Cadenhead’s arrival the plaintiff met him on the job site. Plaintiff was then aware that the Hotel corporation could not pay the $28,574.95 for the work he had done under the contract up to March 1, 1964, nor for the work done since March 1, 1964 upon which no bill had been figured, but which would amount to approximately $11,000.00. Plaintiff was also aware that additional work to be done by him to complete the contract would amount to approximately an additional $11,000.00. Plaintiff was in difficulty with financing institutions from which he had borrowed in order to have the funds necessary to pay his employees and purchase materials in connection with his hotel contract.

Cadenhead represented to plaintiff in the presence of the officers of the Hotel corporation that he was Hedrick’s “aide-decamp”, holding the official title of “manager of projects”. His inquiries were directed to ascertaining what was necessary to be done in order to induce plaintiff to finish his contract for work on the hotel. Plaintiff told him that he was badly bent. His financial difficulties were explained. He told Cadenhead that he had to close the job down unless he could get some assurances that his money was forthcoming and that the compensation due him under the contract would be paid when the job was completed. Cadenhead assured him that the bill he had submitted for work up to March 1, 1964 would be paid. Cadenhead made inquiry as'to the percent of completion of plaintiff’s obligations under his contract, and was assured that if the necessary arrangements were made plaintiff’s work could be performed in time for and so that the hotel would be open for the “Master’s Golf Tournament”. Cadenhead stated that Hedrick was particularly interested in expediting the work in order that the hotel would be open at that time since hotel reservations had been “booked solid” in expectation that it would be timely opened. The parties parted, with arrangements made for further communication after Cadenhead had talked by telephone with Mr. Hedrick.

The following morning, after Cadenhead had conversed by telephone with Hedrick, he talked with plaintiff also by telephone. Arrangements and promises were then made by reason of and as the result of which plaintiff alleged that he was induced to and did complete the painting contract upon the hotel building.

The undisputed evidence material to the case is as follows: 1. Hedrick would immediately send cash to the Hotel corporation which would pay over to plaintiff $7,-000.00 in cash; 2. Hedrick would forward for delivery to him two promissory notes, each in the amount of $10,787.48, one of which would be payable on or before fourteen (14) days from March 23, 1964, and the other payable on or before twenty-eight (28) days from March 23, 1964. 3. Hed-rick would forward for delivery to him a financial statement for use in allaying the fears of plaintiff’s financial backers. Hed-rick performed these promises.

The disputed matters are as follows: Plaintiff would complete the job as per his original contract, submitting his bill direct to the Hotel corporation, through the agency of which Hedrick would make payment to plaintiff by sending the balance to be paid to the corporation in order that it would run the account through on its books, but promptly deliver said balance over to him. Nothing was said or arranged in the nature of showing on any billing the segre-gable amount due and owing for the period March 1, 1964 to March 20, 1964. The billing would be as though there had never been any difficulty of any kind. Under the plaintiff’s understanding of the agreement he completed the painting contract. A final bill was submitted by him to the Hotel corporation in the amount of $22,-211.35. It promptly was presented as well to Hedrick. Propriety of the amount is not disputed. The dispute is whether Hed-rick was obligated to pay it.

It was the contention of Wyatt C. Hedrick and A. B. Cadenhead that the latter neither had, nor ever represented that he had authority to bind the former to make compensation therefor to plaintiff. Further, it was their contention that plaintiff had agreed to complete the painting contract under the original contract, wherein the obligor to make payment therefor was the Hotel corporation. It was asserted that Hedrick never promised to be responsible for the payment of the same or any part thereof, either primarily or secondarily. As noted, the case proceeded to trial with the pleading of the defendant to the effect that in the event it be found that there was any promise on the part of Hed-rick to pay the same or any part thereof such would be unenforceable under the Statute of Frauds. The defense having been plead it became the burden of the plaintiff, as the party seeking to enforce the oral agreement, to show that the statutory provisions were inoperative. 26 Tex.Jur.2d 307, “Frauds, Statute of”, § 136, “Burdens”.

As the case went to the jury plaintiff chose to bracket Special Issues 1 to 7, inclusive, wherein inquiry was made relative to that part of the balance owing as of March 20, 1964, or up to the date of plaintiff’s conference with Mr. Cadenhead. He chose to bracket Special Issues 8 to 14, inclusive, wherein inquiry was made relative to that part of the balance which accrued subsequent to March 20, 1964. Obviously, the jury could have found by its answers that there was an assumption of primary liability by Mr. Hedrick for the work done subsequent to the occasion of plaintiff’s agreement with Cadenhead, but that there was not a similar agreement concerning the work previously done. However, the jury findings on all these issues were for the plaintiff. Essentially, the findings amounted to a declaration by the jury that Mr. Cadenhead promised plaintiff that Mr. Hed-rick would personally pay the entire amount; that he did so as Hedrick’s agent-acting within the scope of his authority as such (actual or implied) ; and that furthermore Cadenhead had apparent authority to so promise in behalf of Hedrick, and that plaintiff relied thereon in good faith and in the exercise of ordinary care, when he proceeded to complete the contractual painting work on the hotel.

By its answer to Special Issue No. 15 the jury found that Mr. Hedrick, personally,—as distinguished from a stockholder in the Hotel corporation—received benefits by reason of the work done by plaintiff after March 1, 1964. By its negative answer to Special Issue No. 16 the jury refused to find that the promises of Hedrick, through his agent, would be binding upon him only in the event the Hotel corporation failed to pay plaintiff. There is an argument concerning the matter of whether Special Issue No. 16 is an inferential rebuttal issue, but we believe it is obviously an issue upon which the defendant carried the burden, in the hope and belief that an affirmative answer thereto would establish the defense asserted under the Statute of Frauds to part, if not all, of plaintiff’s claim.

We are of the opinion that there was adequate evidence to support the answers returned by the jury to every special" issue submitted, and that the jury finding as to each special issue was not against the great weight of the evidence. The court did not err in overruling the motions of the defendant for judgment non obstante ‘veredicto. We also hold that the verdict supported the rendition of judgment for the plaintiff.

From what is stated above it is our conclusion that the agency of Cadenhead for Hedrick was established by the jury findings.

As already noted the jury findings returned were furthermore directed to the matter of whether Hedrick undertook and contracted to be primarily liable to plaintiff, i. e. to personally pay plaintiff’s compensation due and owing for the period from March 1, 1964 to March 20, 1964, and thereafter to become due and owing for the period after March 20, 1964. There were no special issues inquiring upon the matter of consideration moving from plaintiff to Hedrick other than by Special Issue No. 15. Evidence of such is readily perceivable in connection with plaintiff’s performance after March 20, 1964. Everyone was aware that the Hotel corporation had run out of money and credit. The subsequent performance by plaintiff was demonstrated to have been performed on Hedrick’s credit. There was further testimony to the effect that part of the reason for plaintiff’s performance after March 20, 1964 was Hed-rick’s promise that he would shoulder the Hotel corporation’s previously existing duty to pay plaintiff the amounts due under said corporation’s contract with him accrued because of plaintiff’s performance thereunder between March 1, 1964 and March 20, 1964, coupled with the fact that plaintiff’s further performance under the contract was in fact or apparently desired by Hedrick for his own pecuniary or business advantage, rather than in order to merely accommodate the Hotel corporation. There were no special issues directly relating thereto. Had they been submitted suéh issues would have been necessarily referable to those which were submitted as part of plaintiff’s theory of recovery. There was no objection because they were not submitted. Under the circumstances answers thereto would be deemed as found in favor of the plaintiff in support of the judgment. Texas Rules of Civil Procedure 279, “Submission of Issues”.

As applied to the plaintiff’s performance after March 20, 1964, the situation is not to be distinguished from the case in which one supplies goods, wares and merchandise to a third person to whom it is not obliged to furnish such upon the credit of him who promises to make compensation therefor. It is settled that such a promise is enforceable at law.

As applied to the liability of Hedrick for the payment of plaintiff’s accrued compensation during the period between March 1, 1964 and March 20, 1964 we have encountered some difficulty.

In part supported by language found in the Supreme Court decision of Gulf Liquid Fertilizer Co. v. Titus, 163 Tex. 260, 354 S.W.2d 378 (1962), are declarations upon the law to be found in the Restatement of the Law, Contracts, under Chapter 8, “The Statute of Frauds”.

Section 178 thereof, “Classes of Contracts Within the Statute of Frauds”, reads: “(1) The following classes of informal contracts are by statute unenforceable unless there is a written memorandum thereof signed by the party against whom enforcement of the contract is sought, or by some person thereunto authorized by him:

“Class I. * * *
“Class II. Contracts with an obligee to answer to him for the debt, default, or miscarriage of his obligor; * *

Subsequently, under Topic 2, “Contracts Within Class II of § 178. (Contracts with an Obligee to Answer For the Obligor’s Debt, Default or Miscarriage.)” is to be found § 180:

“§ 180. A Promise to Satisfy the Duty adopted, though the Statute does not so the Promisor is a Surety.
“Except as stated in §§ 182-184 and 187-189, a promise to perform or otherwise satisfy all or part of a duty of any kind by which another person is then bound or thereafter becomes bound to the promisee, is within Class II of § 178 if the promisor by virtue of his contract or relation with such other person is a surety for him, and the promisee knows or has reason to know of the suretyship relation.
“Comment-.
“a. The Section states the general rule defining the cases that fall within Class II. The other Sections in this Topic state subordinate rules, for applying or limiting the general rule.
“b. As the words of the Statute state, to bring a case within Class II there must be a duty of another person to render the performance for which the contractor undertakes to be answerable. All kinds of duties recognized by law, whether already incurred or to be incurred in the future, are included within the statutory words, ‘debt, default or miscarriage of another,’ or corresponding words, in statutes relating to contracts included under Class II of § 178. The duty of the other person may not only be conditional, but even voidable, or unenforceable. The person owing the duty is called the principal debtor or obligor.
“c. By an interpretation universally adopted, through the Statute does not so provide in terms, a contract to answer for the debt, default or miscarriage of another is not within its scope, unless the promisee is the person to whom the debt is owing, or who is entitled to damages for the default or miscarriage.
“d. It is essential also in order to bring a promise within Class II that the promisor, by virtue of his relation with another person who is bound for the same debt, default or miscarriage, shall be a surety for the latter, and that the obligee knows or has reason to know of the suretyship relation.
“e. Whether two persons bound for the same performance are principal and surety depends on their contract or relation with one another, and may neither appear in the terms of the contract of either of them with the promisee, nor be known to him from extrinsic facts. A surety’s promise may be in terms absolute or it may be in the form of a guaranty. The essential element of the relation is that the principal debtor shall be subject to a duty to the surety to exonerate him.
“f. A person has ‘reason to know’ a fact when he has such information as would lead a person exercising reasonable care to acquire knowledge of the fact in question or to infer its existence.
“Illustrations:
" * Jjc *
“4. In consideration of the delivery of goods by C to D, S orally promises to pay the price of them. S’s promise is not within Class II, since D is under no duty.
«* * *
“8. D contracts with S to build a house for S. C contracts with D to furnish materials for the purpose. D in violation of his contract with C fails to pay C for some of the materials furnished, and C justifiably cancels his contract with D. S orally promises C that if C will continue to furnish D with materials that C has previously agreed to furnish, S will pay the price therefor. C does so. S’s promise is not within Class II because D is not bound to pay C for the materials supplied in consideration of S’s promise.”

Section 183 of the Restatement, “A Promise in Satisfaction of the Duty of Another” reads: “A promise that is itself accepted in satisfaction of a previously existing duty of a third person to the promisee is not within Class II of § 178.

“Comment:
“a. This Section relates to novations. It makes no difference whether the new promisor promises the same performance as that formerly due from the first obligor or a different performance. The promise is not one to answer for another’s duty, since that other ceases to be under a duty when the new promise becomes binding. The case must be distinguished where performance of the new promise — not the promise itself — is to be taken in satisfaction of the old duty.”

This doctrine is followed in Texas. See Warren v. Smith, 24 Tex. 484 (1859); Harp v. Hamilton, 177 S.W. 565 (Amarillo Civ.App., 1915, no writ hist.); Rollison v. Hope, 18 Tex. 446 (1857); Blankenship & Blake Co. v. Tillman, 18 S.W. 646 (Court of App. of Tex., 1892, no writ hist.). The matter of consideration sufficient to support the promise of the new obligor is not considered under Section 183. However, such is treated in Section 184.

Section 184 of the Restatement, “A Promise, the Consideration of Which is Desired for the Promisor’s Advantage” reads: “Where the consideration for a promise that all or part of a previously existing duty of a third person to the promisee shall be satisfied is in fact or apparently desired by the promisor mainly for his own pecuniary or business advantage, rather than in order to benefit the third person, the promise is not within Class II of § 178, unless the consideration is merely a premium for the promisor’s insurance that the duty shall be discharged.

<( sji ⅜ ⅜

“Illustrations’.

“1. D contracts with S to build a house for S. C contracts with D to furnish materials for the purpose. D, in violation of his contract with C fails to pay C for some of the materials furnished. C justifiably refuses to furnish further materials. S orally promises C, that if C will continue to furnish D with materials that C had previously agreed to furnish, S will pay the price not only for the materials already furnished but also for the remaining materials if D fails to do so. S’s promise is enforceable.
“2. D owes C $1000. C is about to levy an attachment on D’s Factory. S, who is also a creditor of D’s, fearing that the attachment will ruin D’s business and thereby destroy his own chance of collecting his claim, orally promises C that if C will forbear to take legal proceedings against D for three months, S will pay D’s debt if D fails to do so. S’s promise is enforceable.
“3. D owes C $1000. C is about to levy an attachment on D’s factory. S, who is a friend of D’s desiring to prevent his friend’s financial ruin, orally promises C that if C will forbear to take legal proceedings against D for three months S will pay D’s debt if D fails to do so. S has no purpose to benefit himself and C has no reason to suppose so. S’s promise is not enforceable.
“4. C, a bank, discounts negotiable promissory notes of D, a corporation. D becomes financially involved. An official bank examiner threatens to close the bank on account of the impairment of its assets because of the loans to D. S, a shareholder of the bank, in consideration of forbearance by the examiner, orally promises the bank that if D fails to pay the note, he will do so. The promise of S is enforceable.”

Section 184 of the Restatement is the subject of treatment in the Supreme Court case of Gulf Liquid Fertilizer Co. v. Titus, supra. On page 387 of the South Western Reporter it is stated as applied to the case there under consideration:

“This opinion has stated that the courts have used two or more of the following tests to determine whether an oral promise is outside of the Statute of Frauds: (1) the promise was made to subserve some main purpose of the promisor, Titus; (2) the promisor, Titus, agreed to become primarily liable for the debt of the debtor, Stracner, and not simply or only to act as a guarantor or surety; and (3) the promise was supported by consideration. We have also held that there is evidence to satisfy all three tests in this case. We are safe in saying that whatever test is used, the promise must be supported by consideration.”

We believe, and here hold that the same could properly be said in respect to the material transaction in the instant case, assuming that the applicable law is not as stated in Section 183 of the Restatement. In either event the law would be with the plaintiff. Although not thereto confined, the best of the Illustrations found under the Sections from the parts of the Restatement hereinabove copied is Illustration 1 under Section 184. It could as well have recited “labor and materials” instead of merely “materials”, as was done. To rewrite it so that it does so would be as good a statement of the law.

The evidence in the case at hand is such that the jury was entitled to believe, as it did, that the promise of Hedrick to plaintiff, made by and through his agent, was in no way conditional upon the Hotel corporation failing to pay the plaintiff. If it had been so conditioned Hedrick would nevertheless be liable in view of Hedrick’s promise relative to making payment for labor and materials under the contract after March 20, 1964.

On the matter of attorney’s fees: Plaintiff did not contract to perform any labor himself. The labor performed was furnished pursuant to contract, by employees of plaintiff. Furnishing of the materials by the plaintiff was pursuant to the performance of the labor necessary to incorporate said materials into the building as part of the work contracted.

Plaintiff’s claim, essentially, is one based on a special contract which covered both the supplying of labor and material, and one in which attorney’s fees are not recoverable. Vernon’s Ann.Tex.Civ.St. Art. 2226, “Attorney’s fees”, is penal in nature and should be strictly construed. Davenport v. Harry Payne Motors, 256 S.W.2d 245 (Austin Civ.App., 1953, no writ).

As was pointed out in Kirkwood & Morgan, Inc. v. Roach, 360 S.W.2d 173, 177 (San Antonio Civ.App., 1962, writ ref. n. r. e.), “It is true that appellee performed some labor in dumping and spreading the sand which was furnished by appellant. However, this suit was for damages for breach of contract and not for labor done. Hicks v. Smith, Tex.Civ.App., 330 S.W.2d 641. The award for attorney’s fees was not proper in this case. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75.” See also Ford Motor Company v. Davis Brothers, Inc., 369 S.W.2d 664, 668 (Eastland Civ.App., 1963, no writ), a case of similarity to the instant case, in which the court held that the plaintiff’s cause of action was based upon special contract and did not come under the provisions of Art. 2226.

It is also quite certain that plaintiff’s charges, as in any properly run similar business, included a margin of profit above re-coupment of costs (to him) of labor and materials. They would also have included costs such as taxes and insurance. Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.Sup.1962).

Judgment is reversed in so far as it grants attorney’s fees. In all other respects it is affirmed. All costs are taxed against appellant.


author: COLEMAN, Justice.

text:
    HEIGHTS SAVINGS ASSOCIATION, Appellant, v. W. W. CORDES et al., Appellees.
    No. 14993.
    Court of Civil Appeals of Texas. Houston.
    Feb. 23, 1967.

      C. B. Stephenson, Houston, for appellant, Kamp, Laswell & Howard, Houston, of counsel.
    Fred W. Moore, Thomas O. McWhorter, Houston, for appellees, W. B. Thomas and Edith C. Thomas.
    Ira P. and Elliot W. Jones, Murfee, Hoover & Kraft, Karl E. Kraft, Houston, for appellee, H. Volmer Niemann.
    J. Donald Stillwell, Houston, for ap-pellee, W. W. Cordes.
   COLEMAN, Justice.

This is an appeal from a judgment denying recovery on certain promissory notes. The judgment resulted from a jury finding of conditional delivery of one note by two of the parties and from a finding by the trial court that an alleged alteration of the other note was made prior to the delivery of the notes to appellant.

There is in the record a partial statement of facts only, consisting of a promissory note payable to appellant executed by ap-pellees, Cordes and Niemann, the collateral assignment to appellant of a note executed by appellees, W. B. Thomas and Edith C. Thomas to Cordes and Niemann, the Thomas note, and a mechanics and mater-ialmen’s lien contract securing the Thomas note.

Typed on the Thomas note above the signatures of Mr. and Mrs. Thomas are the words “without personal liability.” The jury found that these words were inserted after the note was signed by W. B. Thomas, but before it was signed by Edith C. Thomas. In the judgment the trial court found that there was not a final delivery of the notes to Heights Savings Association before the words “without personal liability” had been added to the Thomas note. The jury found that the Niemann and Cordes note was delivered to a representative of appellant upon the condition that appellant would procure the execution of a promissory note by Mr. and Mrs. Thomas payable to Cordes and Niemann “with such language as would impose personal liability upon” them.

In the absence of a statement of facts including the testimony taken at the trial, it will be presumed that the jury findings are supported by the evidence, and that the fact found by the trial court was not in dispute. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683 (Tex.Sup.1951).

The burden of securing findings of fact sufficient to support a judgment in its favor on the Thomas note was on appellant. The note as it is worded would not permit a personal judgment against its makers. There are no findings of fact that this instrument failed to reflect the agreement of the parties when it was delivered to, and accepted by, appellant, or that appellant was induced to accept the instrument by reason of fraud, accident or mistake. There are no findings that the instrument was altered after delivery either to appellant or to the payees. Since the instrument did not become a binding obligation before delivery, the finding that W. B. Thomas signed it prior to the insertion of the words “without personal liability” is immaterial in view of the further finding that this limitation appeared on the note when it was delivered to appellant. Foster v. Security Bank & Trust Co., 288 S.W. 438 (Tex.Com.App.1926). In the absence of a statement of facts containing the testimony, we may not speculate on the reason for the insertion of the phrase limiting the liability of Mr. Thomas, the person responsible for adding this phrase, or his authority to make this change in the note.

Special Issue No. 3 reads : “Do you find from a preponderance of the evidence that the defendants, Cordes and Niemann, signed and delivered their promissory note dated November 21, 1962, to a representative of Heights Savings Association upon the condition that such Heights Savings Association would procure the execution of a promissory note by the plaintiffs, Mr. and Mrs. Thomas, in the amount of $23,800.00, and payable to the defendants, Cordes and Niemann, with such language as would impose personal liability upon the said plaintiffs?” This issue was answered, “We do”. In support of the judgment, we presume that appellant failed to procure the execution of such a promissory note by Mr. and Mrs. Thomas. Since the condition on which the Cordes and Niemann note was delivered was not complied with, the note never became a binding obligation, and the trial court properly refused to enter a judgment based thereon. Lindler v. Kimball, 247 S.W.2d 933 (Tex.Civ.App.—Ft. Worth 1952).

Appellant contends that the issue was not a proper submission of the defense of conditional delivery in that the element of mutual intent of the parties was omitted. There was no objection to the form of the issue, or to the charge for failure to submit this element of the defense. The ultimate issue was properly submitted to the jury. Guaranty Bank & Trust Co. v. Hamacher, 112 S.W.2d 343 (Tex.Civ.App.—Galveston 1938); Bynum v. Peoples State Bank of Turkey, 243 S.W.2d 190 (Tex.Civ.App.—Amarillo 1951).

Appellant requested the trial court to make certain findings of fact as authorized by Rule 279, Texas Rules of Civil Procedure. The trial court was requested to find whether either Cordes or Niemann mutually agreed with appellant that the Cordes and Niemann note was delivered upon a condition. The court declined to make any of the findings of fact requested.

Appellant agrees that ordinarily where an issue, necessarily referable to some ground of recovery or defense submitted to the jury, is omitted from the court’s charge, it will be deemed found in such manner as to support the judgment rendered by virtue of Rule 279, T.R.C.P. The contention is made, however, that where the court is requested to make written findings and declines to do so, there can be no presumed findings. Rule 279 provides that on request of either party the trial court may make written findings on such omitted issues in support of the judgment, “but if no such written findings are made, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment.” (emphasis added)

By the plain wording of the rule where the court fails to make written findings on an omitted issue, and there is evidence to support a finding favorable to the judgment rendered, the omitted issue will be deemed found in such manner as to support the judgment. The trial court is merely authorized to make findings of fact in such a case; he is not required to do so. If there is no evidence to support á finding on an omitted issue, it cannot be presumed. The trial court is not authorized to make written findings unless they support the judgment rendered. Cross v. Everybody’s, 357 S.W.2d 156 (Tex.Civ.App.—Ft. Worth 1962, error ref., n. r. e.).

Appellant says that the trial court erred in admitting testimony that the note was delivered upon a condition. In the absence of a statement of facts, we cannot assume that an objection was made to this testimony. By the terms of the Texas Negotiable Instrument Act parol evidence is admissible in a suit between the parties to a contract to show a conditional delivery. Art. 5932, Sec. 16, Vernon’s Ann.Tex.St. Parol evidence was admissible to show conditional delivery in this case since appellant was not a holder in due course. Art. 5935, Sec. 52(1), V.A.T.S.; Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515 (1946).

Appellant also asserts that the trial court erred in submitting Special Issue No. 3 over certain objections made by it. Since the transcript does not contain the objections, if any, made by appellant to the court’s charge, this point is denied.

Finally, appellant asserts that Cordes and Niemann are liable upon the note because of this provision in the collateral assignment: “The assignor hereby warrants that assign- or is the legal owner and holder of the aforesaid collateral note and the liens securing its payment; that the same is entitled to no offsets or credit not shown by the proper endorsement thereon; that the assignor has full and unqualified right and power to assign and pledge said collateral note and the lien securing its payment as set forth herein; and that there is now due and owing on the note collaterally assigned herein the sum of $23,800.00.”

It seems to be the contention of appellant that since Cordes and Niemann have warranted that they own the Thomas note, that note must have been in existence prior to the time the assignment was executed. From this premise, appellant reasons that since the warranty was part of the assignment of the Thomas note as security for the Cordes-Niemann note, the Thomas note was executed prior to the delivery of the Cordes-Niemann note. The conclusion is that the Cordes-Niemann note could not have been delivered on the condition that appellant secure the execution of the Thomas note by reason of the parol evidence rule. It was alleged that all these instruments were prepared by an attorney employed by appellant and executed in his office. The evidence might have been conclusive that the collateral assignment was executed and delivered after the note had been delivered conditionally, or it may have been delivered on the same condition. In the absence of a statement of facts, this point of error cannot be sustained.

Appellant has presented other assignments of error which have not been specifically discussed. These assignments have been carefully considered and are denied.

The judgment of the Trial Court is affirmed.


author: DENTON, Chief Justice.

text:
    L. T. FOSTER, Appellant, v. CITY OF LUBBOCK et al., Appellees.
    No. 7681.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 6, 1967.
    Rehearing Denied March 13, 1967.

      O’Connor & Brister and Thomas J. Griffith, Jr., Lubbock, Thomas J. Griffith, Jr., Lubbock, of counsel, for appellant.
    Fred O. Senter, Jr., City Atty., and Sam C. Rodehaver, Asst. City Atty., Lubbock, for appellees.
   DENTON, Chief Justice.

Summary judgment was rendered for the defendants, City of Lubbock, Southeastern Lubbock Development Corporation, and the Urban Renewal Agency of Lubbock in appellant L. T. Foster’s suit for alleged professional services rendered.

From the pleadings, affidavits, and exhibits it appears that in July, 1960 upon the solicitation of the City Manager of Lubbock and the executive officer of the Lubbock Urban Renewal Agency, the plaintiff proceeded to prepare plans and specifications and to provide financial advice and counsel to create and construct the Lubbock Urban Renewal Project, a low income housing project, later known as the Weber Arms Project. It was alleged that for his “work product” and services he would be financially protected by the City of Lubbock and the Urban Renewal Agency. Allegations are made the city received valuable materials and services from the plaintiff, and that the obligations and agreements of the parties were performable within one year. It was further asserted that the indebtedness of the city for material and services was payable out of the available general funds of the city. No written contract was entered into by the parties. Plaintiff bases his cause of action on an implied contract and quantum meruit. Upon hearing and consideration of the pleadings, plaintiff’s deposition and affidavits, the trial court granted the defendants’ motion for summary judgment.

One of the exhibits attached to the pleadings was a letter written by Foster to the Mayor of the City of Lubbock dated April 18, 1964. In this letter he detailed the history of his activities with the Urban Renewal Project and his dealings with the City Manager and director of the Urban Renewal Agency. This letter, together with his deposition, discloses his proposal could not go forward without the approval of the Federal Housing Authority; and that this approval was never given to the corporation formed by Foster and Associates. It became evident during the months he dealt with the city officials and F.H.A., that approval would be given only to an “existing non-profit corporation” to sponsor the project. Foster’s corporation apparently did not qualify. ¿The Southeastern Lubbock Development Corporation was subsequently approved to sponsor the Weber Arms Project which was later built under that corporation’s sponsorship. Foster stated that after he had repeatedly asked for a written contract the City Manager and an Urban Renewal official told him that “neither the U.R.A. nor the city could legally give a contract, but that they, the city and U.R.A., could and would guarantee that no other group would be allowed to take over or destroy the investment that he was pouring into this Project”. Admittedly no contract was entered into between these parties, thus plaintiff’s recovery can only be based on an implied contract or quantum meruit. A recovery on an implied contract cannot be sustained in the absence of the city’s power or authority to enter into a contract sought to be implied. Nunn-Warren Publishing Co. v. Hutchinson County (Tex.Civ.App.) 45 S.W.2d 651 (Writ Ref.). Pritchard & Abbott v. McKenna, Tex.Civ.App., 343 S.W.2d 752 reversed on other grounds, 162 Tex. 617, 350 S.W.2d 333.

The alleged oral agreement to reimburse Foster for his professional services can be enforced only if the implied contract was authorized by the city at the time it was entered into. Article 11, Section 7 of the Texas Constitution, Vernon’s Ann.St. provides in part “no debt for any purposes shall be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent (2%) as a sinking fund”. The word “debt” as used in this Constitutional provision has been held to mean any pecuniary obligation imposed by contract, except such as was, at the time of the agreement, within the law and reasonable contemplation of the parties, to be satisfied out of the current revenues for the year or out of some fund then within the immediate control of the county or municipality. Texas & N. R. R. Co. v. Galveston County, 141 Tex. 34, 169 S.W.2d 713. Ochiltree County v. Hedrick (Tex.Civ.App.) 366 S.W.2d 866 (Ref. N.R.E.). Under the pleadings, plaintiff’s affidavit and exhibits, there had been no agreement between the parties as to when the defendants would become obligated or the extent of such obligation. The plaintiff’s assertion that the indebtedness was readily payable out of the general funds of the City of Lubbock and that it was “always contemplated that such payment would be made within the fiscal year in which the obligation was made” are legal conclusions and are insufficient to raise a material fact issue. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557. Duffard v. City of Corpus Christi (Tex.Civ.App.) 332 S.W.2d 447.

In order to recover against the city, facts must be alleged which show a compliance with the Constitutional and statutory provisions. McNeal v. City of Waco, 89 Tex. 83, 33 S.W. 322. The alleged agreement was invalid because it violates Article 11, Section 7 of the Texas Constitution. Under this record it would have exceeded the powers of the city. This is evident because a debt was sought to be created without complying with the requirements of the Constitutional provision and there were no allegations sufficient to bring it within the exception stated in the definition of the word “debt”.

The plaintiff also relies on the theory of quantum meruit for recovery. It is well settled that recovery can be had for services furnished a city where the city knowingly receives such services or property on an agreement which it had power to enter into, but which was not legally entered into. City of Houston v. Finn, 139 Tex. 111, 161 S.W.2d 776. This rule is based upon the equitable principal a city should not be permitted to receive and sustain benefits of an agreement without paying the reasonable value of such benefits. City of Corpus Christi v. Drought (Tex.Civ.App.) 380 S.W.2d 645 (Ref. N. R.E.). The record fails to reveal such benefits were received by the city or the Urban Renewal Agency. There is no showing plaintiff’s “working products” in formulating the housing project was utilized by the defendants. By deposition, plaintiff does not contend his plans and specifications were used, but testifies he did think “many of the ideas that we spent two years digging out were incorporated” in carrying out the Weber Arms Project. This is not sufficient to invoke the equitable principal sought to be invoked by the plaintiff. He strongly relies on City of Corpus Christi v. Drought (supra) among others, to support his position. In that case recovery for engineering services was permitted against the city upon the principal of quantum meruit, but the case is not controlling here. There the city conceded the plaintiff performed the services, and that the city derived some benefit from such services, but asserted the jury verdict was excessive. Such is not the case here. The plaintiff realized he would be unable to proceed without the approval of F.H.A. The corporation he organized failed to receive this approval. This was a contingency he was aware of from the beginning. If approval had been gained, the plaintiff expected to realize what he referred to as a “builder’s profit” from the project. We thus conclude the implied contract is unenforceable and there can be no recovery under this record by quantum meruit.

A review of the record shows there is no genuine issue of material fact to be determined. In so doing, we reviewed the record in the light most favorable to the appellant, indulging in his favor every in-tendment reasonably deducible from the record and resolving all doubts as to the existence of a genuine issue of material fact against the defendants. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. We therefore conclude the trial court was correct in entering the summary judgment for the defendants.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    W & W FLOOR COVERING COMPANY, Appellant, v. PROJECT ACCEPTANCE COMPANY et al., Appellees.
    No. 11463.
    Court of Civil Appeals of Texas. Austin.
    Feb. 15, 1967.
    Rehearing Denied March 15, 1967.

      McKay & Avery, Charlie D. Dye, Austin, for appellant.
    Shefman & Starcke, Benjamin Shefman, New Braunfels, for appellees.
   HUGHES, Justice.

This suit involves the validity and priority of liens against a homestead. A summary judgment was rendered from which W & W Floor Covering Company appeals. The material facts are undisputed.

On July 25, 1964, Gail M. Gafford and wife, Mary G. Gafford, entered into a contract with James A. Sterling for the construction of a residence on property owned by them, and which they intended to occupy as their homestead in San Marcos, Hays County, Texas. This contract was in the form of a mechanic’s and materialmen’s lien contract and was properly executed and acknowledged by the Gaffords before any work was done or materials furnished under it. The lien given was to secure payment of a negotiable promissory note of even date with the lien contract in the sum of $17,627.00, the full contract price, payable to Sterling, signed by the Gaffords and delivered to Sterling. The lien contract was filed for record in Hays County on July 25, 1964, and was duly recorded in the mechanic’s and ma-terialmen’s lien records of that County.

The note and lien contract were, on September 22, 1964, and before maturity of the note, and for a valuable consideration, transferred and assigned by Sterling to Project Acceptance Company, an appellee.

Sterling undertook construction of the residence under his contract with the Gaf-fords, and appellant, at the instance and request of Sterling, furnished labor and materials for the installation of nylon carpet and asphalt tile in the Gafford residence.

Sterling abandoned his contract and construction of the Gafford residence and Project Acceptance Company completed its construction.

Appellant, not having been paid for its labor and materials, gave notice of its claim and lien to Sterling and the Gaffords, May 10, 1965, and May 7, 1965, respectively, which was before completion of the residence. On June 2, 1965, appellant filed its lien in the mechanic’s and materialmen’s lien records of Hays County.

Appellant sued Sterling, the Gaffords and Project Acceptance Company to recover its debt in the sum of $703.85, and to foreclose its lien against the Gafford residence and to establish its lien as superior to the lien of Project.

In a separate suit Project sued Sterling, the Gaffords and appellant to recover on the Gafford note and to foreclose its lien as a first lien on the property.

The above mentioned suits were consolidated for trial.

On the trial, Sterling defaulted. The Gaffords pleaded the property was their homestead.

Motions for summary judgment were filed by appellant and Project. The trial court rendered judgment for appellant against Sterling for $703.85, for Project against the Gaffords for $20,236.85, and for a lien foreclosure against the Gaffords to the extent of $17,627.00, and denying appellant any lien against the Gafford property. Only appellant appealed from this judgment. No brief has been filed on behalf of the Gaffords.

Appellant contends that it is entitled to a lien under the provisions of Arts. 5452, 5453, 5460 and 5469, Vernon’s Ann.Tex.Civ. St.

It is admitted by Project that appellant has complied with the statutes, above cited, and that it would have a lien on the Gafford property for the labor and materials furnished by it but for the fact that the Gaf-ford property was a homestead and the note given by the Gaffords for construction of the improvements was assigned before maturity. The applicable statute, Project contends, is Art. 5460, V.T.C.S., which we quote:

“Art. 5460. [5631] [3304] Lien on homestead
When material is furnished, labor performed, or improvements as defined in this title are made, or when erections or repairs are made upon homesteads, if the owner thereof is a married man, then to fix and secure the lien upon the same it shall be necessary for the person or persons who furnish the material or perform the labor, before such material is furnished or such labor is performed, to make and enter into a contract in writing, setting forth the terms thereof, which shall be signed by the owner and his wife, and privily acknowledged by her, as is required in making sale of homestead. And such contract shall be recorded in the office of the county clerk in the county where such homestead is situated, in a well bound book to be kept for that purpose. When such contract has been made and entered into by the husband and wife and the contractor or builder, and the same has been recorded, as heretofore provided, then the same shall inure to the benefit of any and all persons who shall furnish material or labor thereon for such contractor or builder. Acts 1889, p. 110; G.L. vol. 9, p. 1138; Acts 1917, p. 383.”

Concededly, appellant had no written contract with the Gaffords but it relies upon that portion of Art. 5460 which provides that the contract with the owner shall inure to the benefit of all persons who furnish labor or material for the improvements for the contractor. Wilson v. Hinton, 131 Tex. 593, 116 S.W.2d 365, supports appellant’s reliance upon such statute and would be conclusive were it not for the fact that here the note given in full payment for the improvements was transferred before maturity by the contractor. In this situation the courts hold that the lien of the contractor having been transferred does not inure to the benefit of persons subsequently furnishing labor or materials to or for him for performance of his contract. McCutcheon v. Union Mercantile Company, 267 S.W.2d 916, Tex.Civ.App., El Paso, writ ref., Borden v. Tapp, 333 S.W.2d 417, Tex.Civ.App., Waco, n. w. h., First National Bank of Lubbock v. Jenkins, 350 S.W.2d 52, Tex.Civ.App., Amarillo, n. w. h.

We quote from McCutcheon the law which is applicable to this case:

“The owners, the Dinglers, had therefore paid the full amount of the lien contract by execution and delivery of the negotiable promissory note to the contractor. They owed him nothing at the time the notices were served on them, since at that time he had transferred the note and lien contract to the bank. Ap-pellees (materialmen) could fix no liens against the homestead except by contract executed as prescribed by Section 50 of Article 16 of the Constitution, Vernon’s Ann.St. They had no such contract. Therefore, any right to a lien in their favor could be only derivative from the lien created by the contract which the owners executed with Jack McCutcheon. Since that contract had been assigned by Jack McCutcheon to the bank to secure the $16,950 negotiable note the owners owed Jack McCutcheon nothing. Their debt was to the bank, the holder in due course of the $16,950 note. Therefore ap-pellees acquired no lien against the property.”

Appellant also contends that under Art. 5469 it was the duty of the Gaffords, as owners, to retain for the time specified 10% of the contract price, and that not having done so and appellant having complied with the statute it has a claim for its debt against the Gaffords and a lien on their property up to 10% of the contract price.

Art. 5469, standing alone, would give appellant the lien it seeks. The Gaf-fords, however, failed to retain the 10% which they were required to do under Art. 5469, hence there were no funds in their hands when appellant furnished materials and performed labor to which the lien could attach. The lien could not attach to the homestead because appellant had no written contract with the owners and it could obtain no derivative benefits under the contract with Sterling because Sterling had assigned his note and lien to appellee which acquired the benefits accruing to a bona fide purchaser of negotiable paper. Appellant had no dealings with Project which are relied upon to establish its liability to pay appellant’s claim.

Insofar as the judgment in favor of Project is concerned, we affirm the judgment.

There was, we believe, error in the judgment wherein it denied appellant a personal judgment against the Gaffords for the amount of appellant’s claim, the amount being $703.85. We believe this conclusion follows from the provisions of Art. 5463, V.T.C.S., Sec. 2, which reads in part:

“The owner shall in no case be required to pay, nor his property be liable for, any money, other than that required to be retained by him under the provisions of Article 5469 hereof, that he may have paid to the contractor before he is authorized under this Article to retain the money. If the notices prescribed in Article 5453 have been received by the owner and claimant’s lien has been secured in accordance with Article 5453 and the claim or any part thereof is reduced to final judgment, the owner shall be required to pay, and his property shall be liable for, any money that he may have paid to the contractor after he is authorized to retain such money by virtue of this Article, as well as any money he is required to retain by the provisions of Article 5469 hereof.”

The Gaffords violated these statutes when they paid the contract in full by execution and delivery of the note to Project thus invoking the liability prescribed by the statutes. The amount of .appellant’s claim is within 10% of the contract price, and there is no evidence of other claims.

We reform the judgment by decreeing in favor of appellant a joint and several judgment against the Gaffords and Sterling for $703.85, with 6% interest from May 27, 1966.

The costs of appeal are assessed one third against the Gaffords and two thirds against appellant.

Reformed and as reformed, affirmed.

      . See Art. 16, See. 60, Texas Constitution, Vernon’s Ann.St.


author: NORTHCUTT, Justice.

text:
    Landrum OSBORNE, Appellant, v. Jo Murrae DURNELL, Appellee.
    No. 7683.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 13, 1967.
    Rehearing Denied March 13, 1967.
    Henry T. Ray, Amarillo, for appellant.
    Boyd Knudtson, Amarillo, for appellee.
   NORTHCUTT, Justice.

Jo Murrae Durnell, hereinafter referred to as plaintiff, the surviving wife of Melvin H. Durnell, brought this suit against Landrum Osborne, hereinafter referred to as defendant, to recover the principal, interest and attorney’s fees as provided for in a note executed by Osborne and payable to Mrs. Durnell. Durnell and Osborne had been associated together in business for some time. Durnell had been killed in an accident some time before the execution of the note here in question. Durnell had an insurance policy in the sum of $10,000 payable to his wife. Mrs. Durnell had collected the $10,000 and on July 31, 1964, loaned $2,000 to Osborne as evidenced by the note sued upon herein. Osborne failed and refused to pay the note when it became due and Mrs. Durnell placed the note in the hands of her attorney to bring this suit. Osborne answered contending Melvin H. Durnell owed him money and that Mrs. Durnell was community survivor of the estate of Melvin H. Durnell and that she had not taken out any administration on the estate of Mr. Durnell. Osborne further pleaded that on March 15, 1964, Melvin H. Durnell executed a note in favor of Osborne in the sum of $2,300 and sought to be discharged on the note sued on herein because of the indebtedness due him by Dur-nell as evidenced by the $2,300 note executed by Durnell. Osborne swore to that part of his pleadings, but Osborne’s ac-knowledgement that on the same day he borrowed the $2,000 from Mrs. Durnell he marked and signed on the $2,300 note “Paid in Full” and delivered the note to Mrs. Dur-nell is contrary to his sworn contention. After the plaintiff filed her motion for summary judgment the defendant in no way replied thereto and summary judgment was granted in favor of the plaintiff for the principal, interest and attorney’s fees as provided in the note.

Although the judgment entered herein is shown to be a summary judgment granting the plaintiff judgment for principal, interest and attorneys fees and that the defendant take nothing by his suit against the plaintiff, the case was heard and evidence introduced as to the contention of the parties. We are familiar with the rule that one who seeks to avoid liability on a written obligation such as a note or check must plead and prove his defense. Aydelotte v. Anderson, 280 S.W.2d 945 (Tex.Civ.App.—Amarillo, 1955); Butler v. Price, 138 S.W.2d 301 (Tex.Civ.App.—Galveston, 1940) ; Friddell v. Greathouse, 230 S.W.2d 579 (Tex.Civ.App.—Dallas, 1950).

The defendant in this case does not deny borrowing the money from the plaintiff as evidenced by the note sued upon herein and acknowledges that the $2,300 note that he bases his main contention upon was marked by him “Paid in Full” and delivered to the plaintiff and that he contracted in writing at the time he borrowed the $2,000 to release the $2,300 note.

However, regardless of the proceedings herein, we are of the opinion that the proper result was reached in the final judgment entered. The error relied upon was that the trial court erred in granting summary judgment when there were material questions of fact to be resolved by the trial court on the merits. The case was presented to the court without a jury. The plaintiff put on her evidence and stated, “Plaintiff rests.” The defendant put on his evidence and stated, “Defendant rests.” Rebuttal evidence was given and defendant cross-examined the witness and both parties closed. There is nothing in this record to indicate that the defendant was prevented from introducing any evidence he cared to introduce. The only error we see herein, if any, is the fact that the judgment was drawn as a summary judgment. The judgment was entered after a full hearing. We do not believe such error was the denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

Judgment of the trial court is affirmed.


author: MASSEY, Chief Justice. MASSEY, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Olin PETTY et al., Appellees.
    No. 16815.
    Court of Civil Appeals of Texas. Port Worth.
    Jan. 20, 1967.
    Rehearing Denied Feb. 17, 1967.
    Second Motion for Rehearing Denied March 17, 1967.

      Simon, Crowley, Wright, Ratliff & Miller, and Wayne A. Rohne, Fort Worth, for appellant.
    Jacobs, Lipscomb & Renfro, and Kelly Jacobs, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

Reference is made to Petty v. Texas Employers’ Insurance Association, 401 S.W.2d 678 (Fort Worth Tex.Civ.App., 1966, writ ref. n. r. e.).

As will be noticed therefrom claimant Olin Petty received judgment for specific compensation under the Texas Workmen’s Compensation Act of and from Texas Employers’ Insurance Association. Claimant believed himself entitled to greater compensation benefits under the statute’s provision for general compensation. For that reason he took an appeal. He failed to prevail and the trial court’s decree of an award in money based upon specific compensation became final.

The insurance company was at all times satisfied with the judgment rendered in the case. It made a tender of the amount of the judgment, plus interest to date of the tender. Its tender, however, was conditioned upon its receipt of a release of judgment. Delivery into the registry of the court was never effected and the insurance company retained use of money tendered.

Upon claimant’s fruitless exhaustion of appellate procedure he procured a Writ of Execution in amount of his judgment plus interest to date of such writ. The insurance company delivered to the levying officer the identical amount previously tendered claimant. Claimant then secured a Writ of Execution for the deficiency. Amount thereof was the difference in the amount received under the first levy and the amount calculable because of interest accrued between the time the insurance company made tender conditioned upon receipt of claimant’s release and the date writ was issued. The insurance company filed suit for injunction to prevent levy of such execution, on the theory that the judgment against it stood fully paid and satisfied.

Following hearing on the merits of the suit for permanent injunction the trial court rendered judgment in denial of the relief sought. An appeal was perfected to this court.

During pendency of the appeal the claimant again sought to collect the deficiency under Writ of Execution. The insurance company applied to this court for a Writ of Injunction pendente lite, which it later withdrew. It then paid off the balance contended to be owing according to claimant.

Claimant, as appellee, has filed a motion to dismiss the appeal. The insurance company, as appellant, has answered in resistance to the motion. Claimant contends that the appeal is moot. The insurance company contends that the question of whether it was obligated to pay the “deficiency” in question is before the court for determination.

Adverting to the pleadings before the trial court it is noted in the prayer of the insurance company that a part of the relief there sought was: “that this court determine that all sums due on said judgment have been paid and that same is fully satisfied and released; * *

Apparently the insurance company’s position is that its action still lives as a suit for declaratory judgment. We have concluded that it does not. According to the claimant/appellee, the total amount owed has been paid. In the trial court no part of the action of the insurance company/appellant was to recover back any sum erroneously or improperly exacted of it. We cannot view the action before the trial court as having been for restitution. To do so would be to unreasonably distort the pleadings of the insurance company so as to make them fit a possible cause of action which was not in existence at time of trial before the court below. That trial, and its incidents, would be all we have authority to consider in the exercise of our appellate jurisdiction. The “deficiency” in issue below is no longer a matter of controversy in view of its payment. The subject matter there litigated has ceased to exist. The appeal is moot.

Appeal is dismissed.

RENFRO, J., not participating.

ON MOTION FOR REHEARING

MASSEY, Chief Justice.

Appellant’s motion for rehearing is overruled.

Therein appellant states that if this Court is holding that the only remedy would be by suit to recover back any sum erroneously or improperly exacted of appellant we should have dismissed the appeal without prejudice to the filing and prosecution of such an action. In disposing of the case presented to us it is not necessary to make any holding relative to what remedy, if any, would be proper to be pursued. It would, however, be unfair to so dispose of the appeal that appellant might be foreclosed from seeking by another action the relief to which it believes itself entitled.

Our dismissal of the appeal is without prejudice to the filing and prosecution of further action by the appellant Texas Employers’ Insurance Association.


author: BARROW, Chief Justice.

text:
    Glennie Gorton BAKER, Appellant, v. JOHNSON & CAMPBELL MOTOR COMPANY, Appellee.
    No. 14555.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1967.

      Glennie Gorton Baker, San Antonio, for appellant.
    Patrick D. Burke, C. G. House, House, Mercer, House & Brock, San Antonio, for appellee.
   BARROW, Chief Justice.

This is a venue action. Appellant, Glen-nie Gorton Baker, appeals from an order sustaining the plea of privilege of appellee, Johnson & Campbell Motor Company, to be sued in Webb County, the county of its residence. No controverting affidavit was filed by appellant.

On February 23, 1965, appellant filed suit in the 131st Judicial District Court of Bexar County, seeking damages from General Motors Corporation, Superior Pontiac Company, and appellee. On March 12, 1965, appellee filed a plea of privilege in the form and manner required by Rule 86, Texas Rules of Civil Procedure. There is no certificate of service, however the record reflects without contradiction that a copy of this plea of privilege was duly received by appellant’s attorneys of record. On August 17, 1966, an order was signed sustaining the plea of privilege because it had not been controverted as required by law.

Appellant urges that the plea was erroneously sustained in that she was not given a copy of the plea of privilege after her attorneys of record withdrew from the case on October 22, 1965. Although appellant is a member of the Texas Bar, she was represented in this action by other attorneys. She concedes that, until they withdrew, her attorneys’ knowledge of the plea was imputed to her.

The trial court did not err in sustaining this plea of privilege where no controverting affidavit was timely filed and good cause was not shown for failure to so file same. Rogers v. Barbee, Tex.Civ.App., 359 S.W.2d 101, no writ; Southern Ins. Co. v. Rogers, Tex.Civ.App., 342 S.W.2d 135, no writ; Farr v. Weeden, Tex.Civ.App., 308 S.W.2d 74, no writ; Bell v. Jasper Lumber Corp., Tex.Civ.App., 287 S.W.2d 746, writ dism’d. Here appellant has not asserted any cause for not controverting the plea of privilege during the six months before her attorneys withdrew. Nor has she asserted good cause for not thereafter controverting same, although she admits in her brief that she had notice of the plea of privilege several months before the order sustaining same was actually signed.

The order sustaining the plea of privilege is affirmed.


author: DENTON, Chief Justice. NORTHCUTT, Justice.

text:
    Judy Rae ANDERSON et vir, Appellants, v. CANYON INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 7751.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 28, 1967.

      Walter P. Wolfram, Amarillo, for appellants.
    Lair, Williams & Cox, Canyon, A. W. Lair, Canyon, of counsel, for appellees.
   DENTON, Chief Justice.

This is an appeal from an order denying a Writ of Mandamus to compel the officials of the Canyon Independent School District to admit Judy Rae Anderson as a student in the Junior High School of that school district.

The facts are substantially undisputed. Judy Rae Anderson is sixteen years of age. She withdrew from the ninth grade of an Amarillo Junior High School on December 21, 1966 and on December 28, following, she married James Anderson. They established their residence in Canyon, Texas on January 1, 1967. She applied for admission in the Canyon Junior High School in early January and was denied admission by the school authorities. She was denied admission solely because of a rule previously established by appellees which read: “Students who marry during the school term must withdraw from school for the remainder of the school year.” Ap-pellees concede she is qualified in all other respects to be admitted as a student.

Unquestionably, Article 2780, Vernon’s Ann.Tex.Civ.St. gives the school trustees broad powers to govern and manage the affairs of the schools under its jurisdiction. Generally the courts will not interfere with rules and regulations promulgated by school authorities unless such rules and regulations reveal a clear abuse of powers and discretion. McLean Independent School District v. Andrews (Tex.Civ.App.) 333 S.W.2d 886. The provisions of this statute must be considered in the light of other statutes to determine the authority of the trustees to enact a particular rule or regulation. Article 2902, V.A.T.S. provides: “All children, without regard to> color, over six years of age and under eighteen years of age at the beginning of any scholastic year, shall be included in the scholastic census and shall be entitled to the benefit of the public school fund for that year. The board of school trustees of any city or town or independent or common school district shall admit to the benefits of the public schools any person over six and not over twenty-one years old at the beginning of the scholastic year, if such person or his parents or legal guardian reside within said city, town or district.” This article not only names those who shall be included in the scholastic census and who are entitled to public school funds, but specifically defines those who are entitled to admission to the public schools. Those so entitled to admission are persons between six and eighteen years of age if such person or his parents or guardian reside within the school district. In interpreting this article, the Houston Court of Civil Appeals held; “Such persons are entitled to admission as a matter of law”. Alvin Independent School District v. Cooper (Tex.Civ.App.) 404 S.W.2d 76. Article 2892, V.A.T.S. requires the compulsory school attendance of “every child” who has reached the age of seven and not more than 17 years of age. It is undisputed the appellant does not come within the exception of this act, namely a high school graduate.

Article 2904, V.A.T.S., in addition to giving school trustees power to admit students over and under the scholastic age, under terms they deem proper and just, also provides: “They (trustees) may suspend from the privileges of schools any pupil found guilty of incorrigible conduct, but such suspension shall not extend beyond the current term of the school.” There is no suggestion here that appellant’s background, conduct or behavior was in any way questioned. As far as this record shows, she has never been enrolled in a school in the Canyon School District. She simply was denied admission because of the fact she was married.

Appellee School District relies principally upon State ex rel. Thompson v. Marion County Board of Education, 302 S.W.2d 57 (Sup.Crt. of Tennessee). There the school board adopted a rule which provided that if any student married during a school term he or she would be automatically “expelled * * * for the remainder of the current term”. If the marriage took place during vacation such student would not be “allowed to attend any county school during the term next succeeding”. The court upheld the school board’s action in suspending the eighteen year old married student. The only statutory basis cited in support of its decision was an article which made it the duty of the board “to suspend or dismiss pupils when the progress or efficiency of the school makes it necessary”. Except for the citing with approval of some of the language in the Thompson case in Kissick v. Garland Independent School District (Tex.Civ.App.) 330 S.W.2d 708 (Ref. N.R.E.), we have been cited no other case which has followed the Tennessee case above cited. The Kissick case is not in point. It involved the construction of a rule preventing married students from participating in certain extra-curricular school activities. It did not involve board action which made marriage, ipso facto, the basis for denial of a student’s right to obtain an education. In fact, the decision recognized the married student “had a constitutional right to attend the Garland School and take part in its functions subject to such reasonable rules and regulations as might be adopted by the School Board from time to time”.

We think the decisions pronounced in Board of Education of Harrodsburg v. Bentley, 383 S.W.2d 677 (Court of Appeals of Kentucky) and Alvin Independent School District v. Cooper (Tex.Civ.App.) 404 S.W.2d 76, are controlling. In the Bentley case the rule promulgated by the School District read: “Any student, either boy or girl, who marries, automatically must withdraw immediately from school and cannot re-enter school for one full year, and then only as a special student with permission of the principal. A special student cannot attend home room or study halls or enter into any class activities, social events or athletics. If, upon re-entering school after the year has elapsed, the student becomes pregnant, she will automatically withdraw until after the birth of the child.” There the High School student was required to withdraw from school when she married during the school term. She was later denied re-admission. The trial court granted a temporary injunction requiring the school board to admit her as a student. In affirming the trial court the court reviewed the pertinent statutes and held: “It is our conclusion that the decision of the trial court is correct; the instant regulation is arbitrary and unreasonable, and therefore void. The fatal vise of the regulation lies in its sweeping, advance determination that every married student, regardless of the circumstances, must lose at least a year’s schooling.” The court concluded: “The Board’s discretion is foreclosed in advance, no matter what the facts. Such prejudgment is unreasonable and arbitrary.”

In Alvin Independent School District v. Cooper (supra), the rule under consideration read: “A pupil who marries can no longer be considered a youth. By the very act of getting married, he or she becomes an adult and assumes the responsibility of adulthood. As a married student he or she shall not serve as an officer of the student body or any class' or school organization. A married pupil shall not represent the school in an interschool contest or activity and shall not participate in school activities other than regular classes. If a married pupil wants to start her family, she must withdraw from public school. Such a pupil will, however, be encouraged to continue her education in the local adult education program and correspondence courses.” In affirming the trial court which required the School District to admit the student, the Houston Court of Civil Appeals reviewed the relative statutes which we have referred to above and held: “We are of the view that appellants were without legal authority to adopt the rule or policy that excludes the mother of a child from admission to the school if she is of an age for which the State furnishes school funds. Appellee was when this suit was filed and tried and is now under 18 years of age.” The court concluded the school board had no legal authority to pass and enforce the rule and that the effect of Article 2902 was to entitle persons, otherwise qualified under the statutes, the right to admission as a matter of law.

The school board in the instant case contends the Cooper case is distinguishable in that the rule in that case had the effect of permanently excluding a person coming under such rule from admission in school, while the rule here merely excludes a student temporarily. This is simply a matter of degree and we do not interpret the Cooper case to base its decision on the basis of permanence. The court held the school board had no legal authority to pass the rule for the reason otherwise qualified persons were “entitled to admission as a matter of law”. If a student is entitled to admission, the question of the length of exclusion is not material.

A so-called temporary exclusion was passed by the school board in Board of Education of Harrodsburg v. Bentley (supra). As shown above, both the trial court and appellate court denied enforcement of that regulation. It is to be noted the court in the Bentley case also refused to follow State ex rel. Thompson v. Marion County Board of Education (supra) after citing cases from some six states. The court observed: “It may be observed the Tennessee decision just cited is the only one which may be said to lend support to the position of the Board here”.

When the applicable statutes are considered together, their clear intent is to require a school board to admit persons six years of age and under twenty-one years of age, provided they, their parents or guardian reside in the district. The rule adopted by the school board here is in violation of these statutory requirements. Whatever our personal views may be, we conclude the Board was without legal authority to adopt and enforce the rule in question. The rule had the sweeping effect of denying every married student, regardless of the facts or circumstances, at least a portion of a year’s education. The rule takes effect immediately upon marriage. The student then “must withdraw from school for the remainder of the school year”, without regard to when the marriage took place. We conclude the rule is not in conformity with applicable statutes and is unreasonable and arbitrary.

The judgment of the trial court is reversed and judgment is here rendered that the defendants below be enjoined from enforcing the rule under consideration as it applies to Judy Rae Anderson; and that the defendants admit the said Judy Rae Anderson as a student in the Junior High School of that district.

Reversed and rendered.

DISSENTING OPINION

NORTHCUTT, Justice.

I respectfully dissent. I regret very much the position this young lady has brought upon herself, but as I view this case the sole question to be determined is whether the rule here involved is unreasonable and arbitrary. The trial court agreed in the hearing of this case that he would consider the testimony of Mr. Huelyn Laycock, Mr. Easton Wall and Mr. Hobart McDonald as being substantially the same as the testimony offered by the school officials in State ex rel. Thompson v. Marion County Board of Education, 202 Tenn. 29, 302 S.W.2d 57 (Tenn.1957). Mr. Wall is principal of Canyon Junior High School. Mr. Laycock is superintendent of schools at Canyon Independent School District, but I do not find in this record just what Mr. McDonald’s business is. Mr. Laycock had been in the school business for thirty-five years as a teacher, principal and superintendent. The record does not show Mr. Wall’s school teaching experience.

The substance of the testimony given in the Tennessee case above mentioned was that for a period of years previous to the adoption of the resolution there had been a deterioration of discipline and decorum in the schools due to student marriages and that the situation had become such that each of the principals requested the board to adopt the resolution in question. It was further represented to the board by these principals that confusion, disorder, etc. caused by student marriages mostly occurred immediately after the marriage and during the period of readjustment and the influence of married students on the other students is also greatest at that time.

Marriage is an institution in which the public has an interest. For the purpose of protecting children as a whole, the requirement as provided by statute that a child under a certain age must secure the paren s’ consent, was the reason the law was passed. We do not believe the question here involved is based solely upon the rights of one student to go to school but that we must consider also the effect the action of one child might have upon the other hundreds of children in that school system. We do not believe that Article 2892, V.T.C.S., has any application to the matter here involved. Surely it cannot be contended that a child could not be removed from a certain school if his conduct was such as to disrupt the best interest of the entire school. There is no contention, and I do not even intimate, that this young lady has done anything wrong, but what I am saying is that I believe the rights and interest of the entire student body is to be considered paramount to the rights and interest of one student.

Article 2780, V.T.C.S., provides in part as follows: “Said trustees shall adopt such rules, regulations and by-laws as they may deem proper; and the public free schools of such independent district shall be under their control; and that they shall have the exclusive power to manage and govern said schools * * If the regulation passed was not arbitrary and unreasonable, then it may be enforced. Personally, I believe that the school principals, superintendents, and school officials who deal with the pupils daily and plan for their different courses and general welfare are more competent to say what is reasonable, proper and to the best interest of the whole student body than I am when there is no showing that this rule was passed without due discussion and consideration. If due consideration was given as to why such a rule should be adopted for the best interest of the entire student body, then such action would not be arbitrary. It is stated in the Tennessee case above referred to as follows:

“We are accustomed to accept the testimony of experts in the various fields of human activity as to what is reasonably necessary for the welfare of the particular activity as to which this expert therein is testifying. No reason is suggested as to why this practice should not be followed when the witness is an expert in the field of operating public high schools. Certainly the principals of the high schools in question should be regarded by reason of training, experience and observation as possessing particular knowledge as to the problem which they say is made by the marriage and uninterrupted attendance of students in their respective schools.”

I would affirm the judgment of the trial court.