author: WERLEIN, Justice.

text:
    The STATE of Texas, Appellant, v. Everett C. REECE et ux., Appellees.
    No. 14273.
    Court of Civil Appeals of Texas. Houston.
    Jan. 9, 1964.

      Waggoner Carr, Atty. Gen., T. B. Wright, Watson C. Arnold, Woodrow Curtis, Carroll R. Graham, Asst. Attys. Gen., Austin, for appellant.
    L. L. Warner, League City, for appellees.
   WERLEIN, Justice.

This is a condemnation suit brought by the State of Texas to condemn appellees’ improved residential property, Lot No. 1 in Block No. 2, of Brookhaven Addition, an addition in the City of Houston, Harris County, Texas, for highway purposes. The parties stipulated as to the issues involved in the suit with the exception of the market value of the property. Judgment was entered in favor of appellees for $18,900.00 based on the jury verdict.

Appellant assigns as error the action of the trial court in striking from the record all of the evidence concerning restrictions imposed upon Brookhaven Subdivision by instrument duly filed for record and recorded in Vol. 1006, p. 560, et seq., Harris County Deed Records, and instructing the jury not to consider for any purposes any of the restrictions testified about, and to conduct themselves in their deliberations as though there were no restrictions on the subject property.

A photographic copy of the recorded restrictions, duly certified by the County Clerk of Harris County, was adduced in evidence and later stricken from the record. All of the lots and blocks in Brookhaven Subdivision, including appellees’ lot, with the exception of a defined portion of the subdivision having an exposure or frontage on Holmes Road, a much-traveled highway, are restricted to residential use and to the construction and maintenance of only one main residence for one family occupancy on each lot. There is no evidence that such restrictions have ever been terminated, changed or modified in the manner provided in the recorded instrument containing such restrictions, or in any other legal manner. Appellees assert that the evidence shows there were a number of violations of the restrictions and that some of the residential lots in the subdivision at the time of the condemnation proceedings were being used for commercial purposes in whole or in part. Even if there were some violations of the restrictions, as contended by appel-lees, the record shows that the question as to whether the restrictions were still in effect had never been adjudicated, and that no one could say whether they would or would not be upheld if attacked in court.

Appellees contend that the restrictions were not sufficiently proven and that it was not shown that they were imposed upon the property in question as part of a general scheme. We do not agree. The recorded instrument containing the restrictions was executed by Ben Taub, the reputed owner of the property. The restrictions, as shown by said instrument, were imposed upon the property for the benefit of all the owners of property in Brookhaven. Appellees accepted a deed from Ben Taub conveying to them the lot in question. Appellee, Everett C. Reece, testified that when he moved out on the property in question there were restrictions “out there”; that Brookhaven Addition was restricted for use as residential property only, with the exception of the portion of the property fronting Holmes Road which was commercial property; and that when he bought the property, Ben Taub told him that it was restricted.

When appellant proposed to introduce in evidence a certified copy of the recorded instrument containing the restrictions, appel-lees’ attorney stated:

“I wish to reserve an objection concerning these restrictions and will urge as a matter of law among'other things as to their original legality. I understand that there is an instrument of record and I don’t wish my objection to prevent any inquiry into that instrument, but I would like'to have the jury to be instructed as to the legal effect of that instrument whatever it might be.”

Following such statement, the attorney for appellees stipulated that the instrument containing the restrictions offered in evidence by appellant was the instrument purporting to be restrictions for the Brookhaven Addition as it appears in the records of the County Clerk’s office of Harris County, Texas. After the copy of the restrictions was introduced in evidence, counsel for appellees stated:

1 “If it please the Court, continuing my objection in that'the fact that it appears of record does not go to its being proved as a general plan and scheme, having been brought to the knowledge of this particular witness and I wish to reserve the right to strike that instrument as the testimony develops.”

It is our view that the restrictions were sufficiently established and proven by the evidence and the stipulation of counsel for áppélleesi This suit does not involve 'the“title to' the property in question but merely the condemnation of property which appellees claim to have bought from Ben Taub and which they knew was restricted to residential use át the time they purchased it. The County Court at Law would have no jurisdiction tó determine the title to the property or to determine the validity vel non of the restrictions. Thompson v. Janes, 1952, 151 Tex. 495, 251 S.W.2d 953; Coughran v. Nunez, 133 Tex. 303, 127 S.W.2d 885. The market value of the property would be affected by such restrictions in all probability so long as they had not been terminated as provided in the instrument creating them, or otherwise legally terminated.

Appellees contend that the restrictions in question áre in violation of- the rule against perpetuities. The restriction instrument provides:

“All of above restrictions and reservations shall remain in full, force and effect perpetually, and shall not be changed or modified in any degree, unless, after the expiration of fifteen (15) years from January 1, 1936, 75% of the owners of the lots hereby subject to these restrictions desire to change, modify, add to or eliminate any one or more of said restrictions.”

The instrument then provides -as to the manner of proceeding in connection with the change, modification or removal of the restrictions.

It is thus seen, that a procedure is provided for the elimination of the restrictions by a 75% vote of the owners of lots in the subdivision, but if this were not so, the restrictions, being covenants running with the land, although described as perpetual, are not in violation of the rule against perpetuities which, in the- final analysis, is merely a rule against the -top .remote vesting of the title to real property. The purchaser buying the property would take title to same though burdened with' the restrictions. A restriction'may be valid although unlimited in point of'time. 26' C. J.S. Deeds § 162(3), p. 1094. In 26 C.J.S. Deeds § 170, at page 1170, it is stated that, “A building.restriction, unless made perpetual, terminates with the expiration of the time limited for its duration, * * *.” In Butler v. Southwest Dairy Products Co., Tex.Civ.App., 146 S.W.2d 1036, 1941, dism., judg. cor., the court said:

“In the instant case, all right and title to the lots in said addition vested in the purchasers thereof, and the restrictions in question, as covenants running with the land, necessarily passed by conveyance of the title to the property and vested in the purchasers of the property as the title thereto vested.”

See also Abernathy v. Adoue et al., Tex.Civ.App., 49 S.W.2d 476; Strong v. Shatto, 45 Cal.App. 29, 187 P. 159; Harris v. Pease, 1949, 135 Conn. 535, 66 A.2d 590, 10 A.L.R..2d 819. In any event, the recorded restrictions, even if invalid, would in all probability have a direct bearing upon the market value of the lot in question at least until they had been adjudged invalid by a court of competent jurisdiction.

We have concluded that the trial court erred in striking the restrictions from the record and in instructing the jury in connection with the definition of market value not to take into consideration any restrictions of any kind or nature controlling the property being condemned.

Such instruction completely excluded from the consideration of the jury any effect that the existence and recordation of the restrictions might have upon the market value of the property in question, and was contrary to the governing rules of law applicable in such case as enunciated by our Supreme Court in City of Austin v. Cannizzo, 1954, 153 Tex. 324, 267 S.W.2d 808. In that case the property had been zoned for residential purposes but the evidence indicated a probability of a change in the zoning in the near future to permit commercial use. The court quoted from Nichols on Eminent Domain, 2d Ed., Vol. 1, p. 669, Sec. 219, as follows:

“ ‘When however a particular use of property is prohibited or restricted by law, but there is a reasonable probability that the prohibition or restriction will be modified or removed in the near future, the effect of such probability upon the value of the property may be taken into consideration.’ ”

The court said:

“If the trial judge is satisfied from the evidence as a whole that there is no reasonable probability that existing restrictions may be lifted within a reasonable time, he should exclude evidence of value based on use for any purposes other than those to which it is restricted. On the other hand, if it appears reasonably probable to the trial judge that the wants and needs of the particular community may result, within a reasonable time, in the lifting of restrictions, he should admit testimony of present value based on prospective use of the property for purposes not then available.”

If the trial judge in the instant case concluded that the restrictions in question would in reasonable probability be removed within the near future, it was probably not error to permit the witnesses to testify as to the values of the property in question for residential use and also for commercial use. It was error, however, to instruct the jury not to consider the restrictions for any purpose. Although there was evidence of some violations of the restrictions, there was also evidence that the property in question and all of the lots in Brookhaven other than the portion thereof fronting on Holmes Road, had been restricted for many years and were still restricted to residential use. The jury should have been permitted to consider such evidence. Appellees’ witness, Duncan Allen, testified that the fair market value of the premises in question was $21,200.00, and that its highest and best value was for business and apartments. Since the jury were instructed not to consider the restrictions for any purpose, it seems quite likely that they gave little or no credence to appellant’s witness, Mr. Favela, who testified that the market value of the property at the time of taking was $10,-650.00, and that such property had always been residential, and that its highest and best use would be as residential property, “that is, without breaking the restrictions. In residential areas you have to consider the restrictions.” We have concluded that the instruction given the jury by the court was calculated to cause and probably did cause the rendition of an improper verdict and judgment.

Appellant further asserts that the trial court erred in permitting appellees’ appraiser, Duncan Allen, to testify that sales of Lot 21 in Block 2 and Lots 19 and 20 in Block 2 of the Bert Wheeler Addition to the City of Houston, were of lots comparable to the subject matter in the instant case. After said witness had without objection testified as to his qualifications as an appraiser and had also testified to certain facts which he considered in arriving at market value, he was asked to testify as to comparable tracts and their location with respect to the location of the subject property. His first comparable tract was Lot 21 in Block 2 in the Bert Wheeler Business Addition, located several hundred feet from the property being condemned. Thereupon appellant’s counsel took the witness on voir dire examination at considerable length. The witness testified that some of the restricted lots in Brookhaven had been used for commercial purposes. Lot 21 in Block 2 of the Bert Wheeler Addition and the property in question were both improved lots in 1958 when said Lot 21, which fronts on Holmes Road, was sold. Such lot was in a business addition, whereas the subject lot was residential property.

In view of the testimony of the witness as to violations of the restrictions, and in light of what has been said herein-above with reference to appellant’s other Points, we cannot say that the court committed reversible error in permitting the witness to testify as to the comparability of the lots. The degree of similarity of land is largely within the trial court’s discretion in determining the admissibility of evidence concerning other sales. Austin v. Cannizzo, Tex.Civ.App., 260 S.W.2d 54, rev. on other grounds, 153 Tex. 324, 267 S.W.2d 808; Holcombe v. Houston, Tex.Civ.App., 351 S.W.2d 69.

What has been said with respect to Lot 21 in Block 2 is in the main part applicable to appellant’s Point concerning Lots 19 and 20 in Block 2 of the Bert Wheeler Addition. In view of another trial, however, it should be observed that the witness’ testimony as to the improvements upon comparable property should generally be based upon his personal examination of such improvements, and that as a prerequisite of proof of value of other land in the vicinity, it should be shown that the land in question is similar in respect of improvements and other elements of value. Chaney v. Coleman, 77 Tex. 100, 13 S.W. 850; Sullivan v. Missouri, Kansas & T. R. Co. of Texas, 29 Tex.Civ.App. 429, 68 S.W. 745; Newbold v. International & G. N. R. Co., 34 Tex.Civ.App., 525, 78 S.W. 1079; Hays v. State, Tex.Civ.App., 342 S.W.2d 167, writ ref., n. r. e.; 22 Tex.Jur.2d, p. 425, Eminent Domain, Sec. 301.

Depending on the facts that may be developed upon a new trial, it may become necessary for the trial court in defining market value, not only to include in the definition language analogous to that suggested by the Supreme Court in the Can-nizzo case, but also to instruct the jury with respect to the law applicable to waiver and abandonment of restrictions and estoppel.

Reversed and remanded.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Pierce A. HOGGETT et ux., Appellants, v. Howell WRIGHT et al., Appellees.
    No. 14160.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1963.
    Rehearing Denied Jan. 29, 1964.

      Claud H. Gilmer, Rocksprings, Coke R. Stevenson, Pierce Stevenson, Junction, for appellants.
    M. C. Blackburn, Junction, for appellees.
   BARROW, Justice.

This suit was filed by appellants, Pierce A. Hoggett and wife, Marguerite Hoggett, to reform and correct the field notes in their deed of September 20, 1950, which purported to convey a forty-acre tract of land to Howell Wright. Appellants alleged that the description in the deed erroneously conveyed more than forty acres. In the alternative appellants sued in trespass to try title to recover 10.97 acres. Wright, on April 17, 1959, conveyed twenty acres out of the forty-acre tract to Joe H. Parker, and on March 23, 1960, Parker conveyed 17.6 acres of this land to William H. Moore. Appellants filed their suit on September 16, 1960, against Wright and his wife, Parker and Moore. After a trial before a jury, the trial court rendered judgment that appellants take nothing by their suit and they have perfected this appeal.

Mrs. Hoggett is the sister of Howell Wright. In 1927, their father died intestate and each of his seven children inherited an undivided Yuth interest in the Wright Ranch, consisting of 2871 acres, located in Kimble County. Hoggett and wife subsequently acquired all interest in this ranch except that of Wright. On May 5, 1950, Hoggett and Wright entered into an agreement whereby Wright agreed to convey his undivided Jirih interest in the ranch to Hog-gett for the sum of $5,000.00 and the re-conveyance by Hoggett to Wright of forty acres of land in the northeastern end of the ranch, located between the north hank of the Llano River and U. S. Highway No. 377. Wright and Hoggett located the northwest corner of the tract to be reconveyed, at a designated place on the Highway, and agreed that Wright would have the land surveyed to determine the location of the west boundary line, so that the tract would contain forty acres. A surveyor was employed by Wright and the division fence erected in accordance with his survey, and his metes and bounds description was contained in the deed executed by appellants on September 20, 1950. On July 31, 1950, Wright conveyed his undivided %4th interest in the ranch to Hoggett et ux.

Appellants .alleged that in July, 1960, a question arose with the State Highway Department over the ownership of a 3.09-acre gravel bed in the northeastern part of the Wright Ranch. At this time Hoggett had the tract conveyed by the September 20, 1950, deed surveyed, and this survey determined that there were 54.06 acres in the tract. Appellants do not assert claim to the 3.09-acre gravel bed, alleged to adjoin the forty-acre tract, but brought this suit to recover the alleged excess of 10.97 acres erroneously included in the description of the September, 1950 deed. Appellants alleged that they signed the erroneous deed because of the false representation by Wright that the description contained only forty acres. Appellees answered by a plea of not guilty and affirmatively pleaded that appellants’ claim was barred by appellees’ ten-years adverse possession. Art. 5510, Vernon’s Ann. Civ.Stats. Appellees further pleaded that the suit for reformation was barred by the four-year statute of limitation. Art. 5529, Vernon’s Ann.Civ.Stats. Moore was alleged to he an innocent purchaser for value.

It is our opinion that the trial court erred in not granting appellants’ motion for instructed verdict on their plea in trespass to try title to the 10.97 acres of land. The verdict of the jury is therefore not controlling and is substantially set out in footnote 1. The parties stipulated that Hoggett and wife were the common source of title. This stipulation made out a prima facie case for appellants on their plea in trespass to try-title and the burden of proof shifted to ap-pellees to show superior title under the common source, or to show that they hold under a superior title not connected with the common source, or that the true title is outstanding. Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610; Yates v. Jones, Tex.Civ.App., 364 S.W.2d 872; Moran Corp. v. Brashear, Tex.Civ.App., 339 S.W.2d 557, writ refused.

It is seen that the deed of September 20, 1950, from appellants to Wright was not introduced in evidence as a muniment of title. Appellants expressly offered same for the limited purpose of showing the alleged misdescription and specifically stated that it was not being offered as a muniment of title. Appellees objected to this procedure, but their objection was overruled by the trial court with the observation that appel-lees could offer the deed for all purposes in connection with the presentation of their case. This was not done and therefore ap-pellees failed to prove their title from the agreed common source. Davis v. Gale, supra.

Appellees concede in their brief that appellants’ suit was filed prior to the running of ten years adverse possession of the land and that there is no basis in evidence to support the jury finding that Wright and his wife, prior to September 16, 1960, had ten years adverse possession of the land. The judgment for appellees therefore cannot be supported by the ten-year statute of limita■tion.

We sustain appellees’ counter point that appellants’ suit to reform and correct the deed is barred by the four-year statute of limitation. Davis v. Andrews, Tex.Civ.App., 361 S.W.2d 419; Hogan v. Price, Tex.Civ.App., 274 S.W.2d 745; Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174; VII Baylor Law Review 241. The four-year statute of limitation has no application, however, to appellants’ alternative plea in trespass to try title to the 10.97-acre tract described in their supplemental petition. Tijerina v. Tijerina, Tex.Civ.App., 290 S.W.2d 277.

Appellees urge that the four-year statute of limitation should apply to the plea in trespass to try title and cite the cases of Cleveland State Bank v. Gardner, Tex.Com. of App., 286 S.W. 173; Tijerina v. Tijerina, Tex.Civ.App., 77 S.W.2d 706, and Hamilton v. Green, Tex.Civ.App., 166 S.W. 97. These cases are distinguishable from our case in that in each of those cases it was necessary to reform or correct a deed before the party asserting plea in trespass to try title would have legal or equitable title. In our case the parties stipulated that appellants had legal title before the execution of the deed of September 20, 1950.

Since appellees failed to prove ten years adverse possession and the four-year statute of limitation is inapplicable, the court erred in failing to grant appellants’ motion for an instructed verdict on appellants’ motion for an instructed verdict on appellants’ plea in trespass to try title to the 10.97 acres of land. Davis v. Gale, supra; Sherman v. Whittenburg, Tex.Civ.App., 357 S.W.2d 172; Dixon v. Bennett, Tex.Civ.App., 260 S.W.2d 372; Fauth v. First Nat. Bank of Granbury, Tex.Civ.App., 214 S.W.2d 168; Dominguez v. Garcia, Tex.Com.App., 53 S.W.2d 459.

Moore’s plea that he is an innocent purchaser for value must fail also, as he claims title through Wright. The deed from Hog-gett to Wright was not introduced in evidence as a muniment of title and therefore Moore has shown no title from the common source.

The judgment of the trial court is reversed and here rendered that appellants, Pierce A. Hoggett and wife, Marguerite Hoggett, recover title to the 10.97 acres of land described in their first supplemental petition.

On Motion for Rehearing.

Appellees urge in their motion for rehearing, that they were not required to introduce their deed from the common source into evidence as a muniment of title, for the reason that appellants had pleaded this deed in connection with their plea to reform same. Appellees assert that since the execution of this deed was averred in appellants’ petition, there was no necessity for them to produce it in evidence. Lafield v. Maryland Casualty Co., 119 Tex. 466, 33 S.W.2d 187; Graham v. Henry, 17 Tex. 164; Jansen v. Kelley, Tex.Civ.App., 206 S.W.2d 856.

This rule has no application here, because the deed was not pleaded by appellants as a muniment of title in appellees, but for the express purpose of showing that the description of the property conveyed was in error and should be reformed. Our case is similar to that of Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610, where the plaintiff pleaded that a described deed created a cloud on his title and sought to remove the cloud. The deed was not introduced as a muniment of title by the plaintiff, but only for the limited purpose of showing the cloud on his title. The Supreme Court held that the deed did not inure to the benefit of the defendant in proof of his title. Rule 798, Texas Rules of Civil Procedure; 41-A Tex.Jur. 710.

It is therefore our opinion that appellees failed to prove their title in the trespass to try title .action when they did not introduce their deed from the stipulated common source into evidence.

Appellees also urge that in the interest of justice the case should be remanded rather than rendered. It is the rule that where the ends of justice will be better sub-served by remand to the trial court for new trial, than by rendition, the Court should remand the case. Davis v. Gale, supra; Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846. We have therefore reviewed the entire record in consideration of this point.

The primary dispute between the parties is over the accuracy of the survey made for appellees. Appellees agree that they are entitled to only forty acres, but assert that they have this amount in their survey. Appellants assert that the survey contains an excess of 10.97 acres. Neither party requested the court to appoint a surveyor, as provided in Rule 796, T.R.C.P. This dispute between the surveyors was not resolved by the jury. The jury found that the appellees’ survey contained more than forty acres. How much excess and where it is located is still unknown. The jury found that appellees’ surveyor correctly surveyed only to the cut bank of the river rather than to the water, as was done by appellants’ surveyor. The appellees asserted the ten-year statute of limitation in the trial court, but, despite favorable jury findings, now concede that they failed in this defense. These were the controverted issues in the trial court and both parties failed to prove their contentions.

Appellants pleaded a formal trespass to try title action in the alternative. Common source in appellants was stipulated. The record does not indicate why appellees failed to formally introduce their deed from appellants in evidence as a muniment of title. It is our opinion that justice will he better served by a remand of this case for new trial for determination of the correct west boundary line of appellees’ forty acres.

The motion for rehearing is therefore granted and our judgment of November 13, 1963, is set aside. The judgment of the trial court is reversed and the cause remanded for a new trial.

      .The jury returned a verdict substantially as follows:
      1. That Wright and Hoggett did not intend for their contract of May 5, 1950, to cover and include all of the Wright Ranch within the boundaries and limits as described in said contract.
      1-A. That Wright and Hoggett upon signing the contract of May 5, 1950, did not each intend that Wright take the same land.
      2. That the division fence line constructed by Wright along the west side of the land in controversy segregated more than 40 acres of the Wright Ranch.
      3. That Wright at the time of the execution of the deed on September 20, 1950, did not represent to Hoggett or Ms wife that the division fence line would segregate only 40 acres of the Wright Ranch. (Issues 4, 5 and 6, inquiring respectively as to whether such representation was false, relied upon, and induced Hoggett and his wife to execute the deed, were conditioned on an affirmative answer to Question No. 3, and were therefore not answered.)
      7. That some or all of the three and one-fifth acres of the gravel bed lies within the banks of the Llano River.
      8. Plaintiffs Hoggett and wife did not use ordinary diligence to discover any misrepresentation of a material fact made to either of them by Wright.
      8-A. That by the exercise of reasonable diligence Hoggett or his wife should have discovered any misrepresentation by Wright on September 20, 1950.
      9. That William M. Moore was an innocent purchaser for value of 17.6 acres ■of land conveyed to him by Parker.
      10. That Wright and wife hold exclusive, peaceful and adverse possession of the land for a period of ten years prior ■to September 16,1960.
      11. That neither Hoggett nor liis wife knew that the Wrights were claiming the land in controversy adverse to them.
      12. That the defendants did not assert such adverso possession of the property in controversy with such unequivocal notoriety that plaintiffs would be presumed to have notice of such adverse claim and possession.
      13. That the metes and bounds description of the river bank boundary line as made by Wright’s surveyor affixed the river bank where it is actually located.


author: DUNAGAN, Chief Justice.

text:
    TARRANT COUNTY et al., Appellants, v. Carlos ROBERTS et al., Appellees.
    No. 1.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 9, 1964.
    Rehearing Denied Jan. 30,1964.
    Doug Crouch, Dist. Atty., Fred Fick, Asst. Dist. Atty., Fort Worth, for appellants.
    Martin & Tackett, Elvin E. Tackett, Fort Worth, for appellees.
   DUNAGAN, Chief Justice.

Appellees, five employees or appointive officers of Tarrant County, filed a class suit in behalf of themselves and all employees and appointive officers of the county, praying in effect, for a declaratory judgment requiring and obligating the county of Tar-rant to establish and put into effect a retirement, disability and death compensation fund in accordance with the provisions of Article 16, Sec. 62, para, (b) of the Constitution of Texas, Vernon’s Ann.St. Upon the trial before the court without the intervention of a jury, the trial court rendered judgment for appellees' (plaintiffs in the court below) requiring and obligating appellants to establish and put into effect such retirement, disability and death compensation fund. The appellants have brought forward two assignments of error.

ASSIGNMENT NO. 1

The trial court erred in rendering judgment for appellees since everything required by law to create an obligation on the part of Tarrant County and its Commissioners Court to put “into effect such retirement, disability and death compensation fund for its appointive officers and employees has not been done.”

ASSIGNMENT NO. 2

The trial court erred in rendering judgment for appellees since the County Commissioners of Tarrant County are not under any obligation to put such a plan into effect.

The trial court’s finding of facts as set out in its judgment is as follows: .

“1. The Commissioners Court of Tarrant County, by order in 1951, duly and' timely called for an election in Tarrant County on the proposition'of providing for and administering a Retirement, Disability and Death Compensation Fund for its appointive officers and employees:
“2. Such election was advertised by being published in at least one newspaper of general circulation in Tarrant County once each week for at, least four weeks.
“3. The voters of Tarrant County, in November 1951, by majority vote, authorized Tarrant County to provide for and administer a Retirement, Disability, and Death Compensation Fund for the appointive officers and employees of Tarrant County.
“4. The County Commissioners of Tarrant County duly canvassed such election returns on November 15, 1951, and by order of said date declared said proposition to have carried by a majority vote and further declared such proposition to be in full force and effect.
“5. Said order of November 15, 1951, by the Commissioners Court of Tarrant County has never been rescinded revoked, canceled, or amended.
“6. The term of court at which said order was entered has passed.
“7. Said order and said proposition' have never been carried out or put into effect by the Commissioners Court of Tarrant County.
“8. A majority of the members of the Commissioners Court of Tarrant County have taken and do now take the position that the putting into effect of such a plan is merely discretionary with them and that the Commissioners Court is not under any obligation to put such a plan into effect. * * * ”

The trial court also found that “The Commissioners of Tarrant County are under a legal duty*to put such a plan into effect.”

This lawsuit is based upon Article 16, Section 62, para, (b) of the Constitution of the State of Texas which reads as follows:

“(b) Each county shall have the right to provide for and administer a Retirement, Disability and Death Compensation Fund for the appointive officers and employees of the county; provided same is authorized by a majority vote of the qualified voters of such county and after such election has been advertised by being published in at least one newspaper of general circulation in said county once each week for four consecutive weeks; provided that the amount contributed by the county to such Fund shall equal the amount paid for the same purpose from the income of each such person, and shall not exceed at any time five per centum (5%) of the compensation paid to each such person by the county, and shall in no one year exceed the sum of One Hundred and Eighty Dollars ($180) for any such person.” (Emphasis supplied)

The voters of Tarrant County in November, 1951, by a majority vote, authorized Tarrant County to provide for and administer a Retirement, Disability and Death Compensation Fund for the appointive officers and employees of Tarrant County. The official ballot in said election concerning the question before the court is as follows:

“Shall Tarrant County have the right to provide for and administer a retirement, disability and death compensation fund for the appointive officers and employees of the County; the amount contributed by the County to such fund to be equal to the amount paid for the same purpose from the income of each such person and shall not exceed at any time five (5%) per cent of the compensation paid to each such person by the County and shall in no year exceed the sum of one hundred eighty ($180.00) dollars to be paid by each such person?
“FOR Authorizing Tarrant County to provide for and administer a retirement, disability and death compensation fund for the appointive officers and employees of Tarrant County.
“AGAINST Authorizing Tarrant County to provide for and administer a retirement, disability and death compensation fund for the appointive officers and employees of Tarrant County.”

The Minutes of the Commissioner’s Court, regular term, November, A.D., 1951, in regular meeting the 15th day of November, A.D., 1951, met, canvassed the election returns and the results thereof declared. The first paragraph of said order reads:

“On this the 15th day of November, 1951, came on for consideration by the Court, the matter of canvassing the election returns of the election held on November 13th, 1951, upon five proposed Constitutional Amendments to the Constitution of the State of Texas, and upon two propositions affecting Tarrant County alone. And it appearing to the Court that the notices required by law were duly given, and that the election appeared to have been held in conformity with law, the Court proceeded to canvass the election returns and to announce the results as follows
The order further reads:
“On the proposition of giving Tar-rant County the right to provide for and administer a retirement, disability and death compensation fund for the appointive officers and employees of the County, the amount contributed by the County to such fund to be equal to the amount paid for the same purpose from the income of each such person and shall not exceed at any time five (5%) per cent of the compensation paid to each such person by the county shall in no year exceed the sum? of One Hundred Eighty ($180.00) Dollars to be paid by such person. 4,065 votes for, and 3,843 votes against.
“On motion of Commissioner Hoven-kamp, seconded by Commissioner Henderson, said results were canvassed, and based upon such votes it is hereby declared by the Commissioners Court of Tarrant County that said propositions above set out affecting Tarrant County alone, are declared to have carried by a majority vote and such propositions are declared to be in full force and effect. Said motion carried and it is so ordered.”

It is without dispute in the record or briefs of either party that the election on the proposition providing for and administering a retirement, disability and death compensation fund for the appointive officers and employees of Tarrant County has been duly and timely called for, that such election was advertised as required by Statute ; that the voters of Tarrant County November, 1951, by a majority vote authorized Tarrant County to provide for and administer such plan; that the County Commissioners of Tarrant County canvassed such election returns on November 15, 1951, and by order of said date declared said proposition to have carried by majority vote and such proposition was declared to be in full force and effect; that said order has never been rescinded; that the term of court which said order was entered has passed.

The appellees contend that due to the portion of the order declaring said proposition to have carried by a majority vote and to be in full force and effect; that everything necessary to have been done to put such a plan into effect has been done with the exception that the County Commissioners of Tarrant County have never put such plan into effect and by virtue of this portion of the order it becomes a legal duty of said Commissioner’s Court of Tarrant County to put such plan into effect.

It is the contention of appellants that under these facts the governing body of Tar-rant County (Commissioner’s Court) has never established a retirement, disability and death compensation fund for the appointive officers and employees of said County; it had never become legally obligated to do so nor can appellants be now obliged or required to do so. The language of the Constitution “Each county shall have the right to provide for and administer a Retirement, Disability and Death Compensation Fund for the appointive officers and employees of the county; provided same is authorised, by a majority vote of the qualified voters of such county * * (Art. XVI, Sec. 62 (b) Texas Constitution) (Emphasis supplied) clearly grants the right to the governing body of any county to establish such a system but only after the use of such right is authorized by the people. “ ‘The grant of a right,’ said the Supreme Court of Massachusetts, ‘is, by reasonable construction, a grant of power to do all the acts reasonably necessary to its enjoyment.’ ” Memphis State Line R. Co. v. Forest Hill Cemetery Co., 116 Tenn. 400, 94 S.W. 69.

This case must stand or fall upon the legal effect to be given to the order of the Commissioner’s Court on November 15, 1951. Mr. Bryan Henderson, who was one of the County Commissioners on November 15, 1951, at the time the order in question was adopted, and who was at the time of this lawsuit a member of the Commissioner’s Court of Tarrant County, testified that it was not the intention of the court in entering such order to put into effect the pension plan. We cannot look to the testimony of Commissioner Henderson, because where an order has been entered parole evidence is not admissible to prove the intention of the court in adopting the order. 15 T.J. (2d) 271, Sec. 43; Colonial Trust Co. v. Hill County, Tex.Com.App., 27 S.W.2d 144; King v. Marion County, Tex.Civ.App., 202 S.W. 1052.

Let us examine the order of November 15, 1951, to determine if such order created any obligation upon the county. The order itself bears the caption “Election Returns Canvassed and Results Declared”. It declares the results of the election on five proposed Constitutional Amendments and two county-wide propositions, second county proposition being the proposition herein involved in this lawsuit, and as to the latter recites:

“On the proposition of giving Tar-rant County the right to provide for and administer a retirement, disability and death compensation fund for the appointive officers and employees of the County, the amount contributed by the County to such fund to be equal to the amount paid for the same purpose from the income of each such person and shall not exceed at any time five (5%) per cent of the compensation paid to each such person by the county shall in no year exceed the sums of One Hundred Eighty ($180.00) Dollars to be paid by such person. 4,065 votes for, and 3,843 votes against.
“On motion of Commissioner Ho-venkamp, seconded by Commissioner Henderson, said results were canvassed, and based upon such votes it is hereby declared by the Commissioners Court of Tarrant County that said propositions above set out affecting Tarrant County alone, are declared to have carried by a majority vote and such propositions are declared to be in full force and ef-feet. Said motion carried and it is so ordered.”

It is upon the above recitation that appel-lees rest their contention that the Commissioner’s Court legally bound itself at that time to establish the retirement fund. With this contention we do not agree. The only import of such language was to announce that the proposition giving the County the right to provide for the retirement fund is in full force and effect. The court was given the right to provide for the fund but the Commissioners were in no way obligated to exercise that right. What was declared to be in full force and effect? The right of Tarrant County, through its Commissioner’s Court, to provide for and administer a retirement, disability and death compensation fund for the appointive officers and employees of Tarrant County as provided for in Article 16, Section 62, para, (b) of the Constitution of the State of Texas. Therefore, the effect of the order (of the ■Commissioner’s Court on November 15, 1951) was to authorize the Commissioner’s Court to exercise its right under Section 62, para, (b) of Article 16 of the Constitution •of the State of Texas to provide for and administer a retirement, disability and death compensation fund for the appointive officers and employees of Tarrant County. The court declared the proposition to be in full force and effect. The proposition was “shall Tarrant County have the right to provide for and administer a retirement, disability and death compensation fund for the appointive officers and employees of Tar-rant County”. Therefore, the proposition having been adopted by the voters, it became discretionary with the court to provide for said fund and did not impose upon the county a legal duty to so do.

The right to provide for this fund is not vested in the voters but in the Commissioner’s Court. The only power conferred upon the voters by virtue of the provision of the Constitution of this State under consideration herein is to authorize the Commissioner’s Court to provide for such fund which they (the voters) did and that only.

The Commissioner’s Court of Tarrant County by entering the order on November 15, 1951, did not declare the retirement, disability and death compensation fund in effect. The order only authorized the court to put such plan into effect.

We do not understand the appellees to contend that the voters are vested with the right to establish such plan but it is their contention that the order of the Commissioner’s Court declaring the result of the election by the use of the following language “such propositions are declared to be in full force and effect and it is so ordered” imposes a legal duty upon the Commissioner’s Court of Tarrant County to put such plan into effect. We do not construe the order to have such effect.

Judgment of the trial court should be reversed and rendered and it is so ordered.


author: LANGDON, Justice.

text:
    PARKER FOOD STORES, INC., Appellant, v. L. V. PIERCE, Appellee.
    No. 16464.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 10, 1964.
    Rehearing Denied Feb. 7,1964.

      Jackson, Walker, Winstead, Cantwell & Miller, W. B. Patterson and Jack Pew, Jr., Dallas, for appellant.
    Mock, Banner & McIntosh, and Jack Banner, Wichita Falls, for appellee.
   LANGDON, Justice.

This is a personal injury suit.

Appellee, a customer of appellant’s store, brought this suit for injuries sustained when he slipped on a purple ball point pen that was lying on the floor in the aisle of the store. The jury found that appellant’s employees did not drop the pen in the aisle and that appellant was not negligent in failing to discover and remove it. The only other liability issues submitted appellee’s theory that appellant “ * * * was negligent in having the floor of the store constructed of such dark material as to fail to properly illuminate or outline objects placed upon the floor, * * The jury found these issues against appellant. Overruling appellant’s motion to disregard the answers to such issues and its motion for judgment non obstante veredicto, the district court entered judgment, on the verdict, for appellee in the principal amount of $7,500.00.

Appellant duly filed its motion for new trial which, as amended, set out among other grounds the refusal of the trial court to suppress written interrogatories because of the failure of the deponent to answer a material cross-interrogatory, the prejudicial and inflammatory nature of the oral argument of appellee’s counsel, and the fact that the jury’s findings as to future medical expenses were not supported by the evidence. The amended motion was overruled, and appellant duly perfected its appeal to this Court.

The points of error presented here are germane to assignments in appellant’s motion to disregard answers to certain special issues, its motion for judgment non obstante veredicto, and its amended motion for new trial.

Reversed and rendered.

The case is unique in that the principal question is whether the owner of a store may be negligent and thus liable for damages because of the color of his floor.

The theory upon which appellee obtained the judgment below was pleaded by him as follows: “Further, the Defendant was negligent in having the floor of the store constructed of such dark material as to fail to properly illuminate or outline objects placed upon the floor, or left upon the floor of the store, when it knew or by the exercise of ordinary care, should have known that the dark color and condition of the floor was such as to make it extremely difficult for customers and other invitees to see objects that might have been dropped, spilled, or left on the floor in question.” Insufficient lighting was not plead and no issues were requested or submitted as to lighting.

Appellant’s merchandise manager, whose deposition was read by appellee, described the floor as “just concrete colored”. He testified that it was not even “fairly difficult” to see the pen on the floor. The only other testimony on the point was given by appellee himself. The portions of his testimony relevant to his pleadings and the issues submitted were in essence as follows: He had been in the store around 10 to 15 minutes, possibly 15 minutes before he fell. He noticed one or two, possibly two, other shoppers in the store. As to his action immediately before he fell he testified he was coming towards the front and had his basket in front of him. He reached over to get some item, “started to take a step to reach and get this when my feet went out from under me, I stepped on an object and my feet went out from under me.” He was pushing the basket with both hands, “but I turned and reached with my left hand to get the item which I was after and then is when my feet went out from under me.”

After his fall he returned to the store and observed, “the floor, the lighting and things of that nature in there” and testified it is the same or similar to the condition of the floor at the time he fell.

He saw “this” pencil placed on the floor in the area of his fall was not readily apparent, “you couldn’t see it at a glance you would have to be looking for it to find it.” He described the floor, “A. Well it is concrete and it is old and dark and you might say it is two toned it is two different colors in — * * * Well you might call it two toned, it is two different colors or three or four different colors, it is just like an old floor you know.”

On cross-examination he testified essentially that when he walked into the store the day of his fall he did not pay any attention to the floor although he was, “watching where I was going.” That the coloring of the floor could have ha'd something to do with his fall. - The floor and its color were in plain sight and he looked at the floor. He knew the store as he had been in it before and had not had any trouble before. Further he testified, “A. Well anyone knows when you are shopping that you will look where you are going, you have to raise your eyes to look for your merchandise anyone will tell you that.” According to his testimony he apparently had the cart between him and where the pencil was lying and the cart probably passed over it. The cart he was pushing in front of him as he proceeded down the aisle had merchandise in it and the cart could have kept him from seeing the pencil on the floor. Because of this it probably would not have made any difference if it had been pitch dark in there or as dark as the ace of spades.

Over the appellant’s objection special issues Nos. 8, 9 and 10 were submitted to the jury. By their answer to these issues the jury found that the floors were maintained in a dark condition or color; that a person of ordinary prudence and care would not have maintained the floors in a dark condition or color and that the maintenance of the floors in a darkened condition or color was a proximate cause of L. V. Pierce’s fall.

It is apparent from the record that appellee obtained a judgment because he slipped and fell on a ball point pen lying in the aisle of appellant’s grocery store in spite of jury findings that appellant’s employees did not drop the pen on the floor and that the pen was not on the floor for such a length of time that appellant could be charged with negligence in failing to discover and remove it. Thus since the jury absolved the appellant from any responsibility for the fact that the pen was on the floor the judgment must be based solely upon the jury’s findings that appellant was negligent in maintaining the floor in “a dark condition or color”. The judgment must therefore stand or fall upon the proposition that a store owner is negligent in having a dark colored floor because a floor of such color will not afford a sharp contrast with dark colored objects that, through no fault of the store owner, have been dropped upon it.

In our opinion such a theory of recovery is without foundation in law and is not supported by the facts of this case. To hold otherwise would commit one to the proposition that when white or light objects are dropped upon a floor the store owner is responsible unless he has a dark floor which would readily contrast with the object on the floor. This would require the store owner to have a floor that would in each instance contrast with the object or matter dropped upon it. Such a requirement would be preposterous.

It occurs to us that when the plaintiff has slipped on a foreign substance or object as in this case and he cannot show that the substance or object was on the floor through the fault of the store owner he does not raise an issue of the owner’s negligence unless he can show that there was something about the construction or condition of the floor that was inherently unsafe. The cases refer to a concealed or hidden condition or defect — conditions and defects which are not open and obvious and known only to the store owner.

The point is perhaps best illustrated by those cases in which, without the negligence of the store owner, water has collected on the floor and caused it to become wet and slippery. The leading authority is Miller v. Gimbel Bros., 1933, 262 N.Y. 107, 186 N. E. 410, in which the plaintiff, upon entering a store, slipped on a marble entrance that had become wet from the rain. A verdict and judgment in favor of the plaintiff was reversed by the New York Court of Appeals. The Court held: “The owner of a store must take reasonable care that his customers shall not be exposed to danger of injury through conditions in the store or at the entrance which he invites the public to use. He cannot prevent some water and mud being brought into an entrance way on a rainy day and he is not responsible for injuries caused thereby unless it is shown that the construction of the store is inherently dangerous or that he failed to use care to remedy conditions which had become dangerous, after actual or constructive notice of such conditions.”

Under similar facts, a directed verdict for the defendant was upheld in Fisher v. Hardesty, 1952, Ky., 252 S.W.2d 877.

The waxing or oiling of a floor is not in itself negligence. Rogers v. Collier, 1949 (Tex.Civ.App., San Antonio), 223 S.W.2d 560, writ refused. Thus, one who slips on a waxed floor cannot recover unless he can prove that the wax was negligently applied or that the floor was inherently dangerous. If the wax was not negligently applied, the plaintiff is in the same position as was appellee: he must prove that the floor is inherently dangerous. Russell v. Liggett Drug Co., 1941 (Tex.Civ.App., Dallas), 153 S.W.2d 231, writ ref., w. o. m., is such a case. In upholding a directed verdict for the owner, the court said: “ ‘The construction of the floors of the corridors of an office building with unpolished marble slabs customarily used for such purposes in like buildings does not of itself show a failure of the owner to exercise due care to render the corridors safe for those who may lawfully use them, and one lawfully in the building may not recover for injuries caused by slipping on the floor of a corridor on mere proof of the character of the floor.’ ” See also Hansen v. Ware’s, Inc., 1959 (Tex.Civ.App., San Antonio), 324 S.W.2d 909, no writ history; Kelly v. Loft, Inc., 1940, 124 N.J.L. 185, 11 A.2d 58; Lederman v. Cunningham, 1955 (Tex.Civ.App., Beaumont), 283 S.W.2d 108, no writ history; and Marshall v. San Jacinto Bldg., 1934 (Tex.Civ.App., Beaumont), 67 S.W.2d 372, writ refused.

We are of the opinion that under the authorities a dark floor is not inherently dangerous and that a store owner is not negligent solely because he maintains his floor in a dark condition or color. In Dolan v. Bry Block Mercantile Co., 1938, 23 Tenn.App. 47, 126 S.W.2d 376, cert. den., the plaintiff stumbled on a sloping aisle in a department store. The court in concluding that the store was not negligent in having an aisle that sloped stated: “We are further of the opinion that the fact that this slight incline was covered by dark green linoleum was not of itself an act of negligence, in the sense that the operator of the store could reasonably anticipate that such floor covering would create a dangerous condition.”

The appellee does not plead nor did he attempt to prove — that a dark floor is inherently dangerous, or would tend to cause the type of accident that occurred in this case. In essence his contention was that the dark colored pen did not contrast with the dark colored floor. Admittedly, dark colored objects will show up more readily on a light colored floor than on a dark colored floor and light colored obj ects will show up better on dark colored floors. Thus, appellee’s case is not merely that appellant was required to have a light colored floor, but that appellant had a duty to construct and maintain a floor of such color that it would contrast with any object that anyone might, through no fault of appellant, happen to drop on it. To accept such a theory—the only theory upon which the judgment below could possibly be sustained— would be to make the owner of a retail store an insurer of the safety of his customers. The law is well settled that he is not. Worth Food Markets v. LeBaume, 1938 (Tex.Civ.App., Fort Worth), 112 S.W.2d 1089, writ dism.; Smith v. Safeway Stores, 1943 (Tex.Civ.App., Fort Worth), 167 S.W.2d 1044, no writ history; Great Atlantic & Pacific Tea Company v. Giles, 1962 (Tex.Civ.App., Dallas), 354 S.W.2d 410, writ ref., n. r. e.

A dark colored floor is not inherently dangerous. If, however, it may be assumed that there is something dangerous about a dark colored floor, appellant nevertheless cannot be held liable to appellee for any injury resulting therefrom. The color and condition of the floor was open and obvious to appellee, and appellant had no duty to protect him against it. As said in language recently adopted as its own by our Supreme Court: “The owner of premises is not an insurer, and has no duty to protect an invitee against dangers which are well known and obvious.” McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940.

“Where the condition is open and obvious, is easily perceptible to the invitee, and there is no hidden defect, it is held no fact issue is raised.” Steele v. Slade, 1962 (Tex.Civ.App., Waco), 353 S.W.2d 329, writ refused.

The testimony shows beyond question that, at and prior to the time he was injured, appellee was perfectly aware of the dark color and condition of appellant’s floor. He knew the store from previous visits, and, as he specifically testified, he looked at the floor when he walked into the building. At the time he fell, he had been in the store about 15 minutes. The store was not crowded, and there was nothing to prevent appellee from further examining the floor. Indeed, he was sufficiently impressed by the floor that when he returned to appellant’s store shortly before the trial he was able to recognize that the condition of the floor was “the same or similar to the condition of the floor back at the time” when he fell. Upon the occasion of this latter visit, he observed, by experiment, that he could not easily see a dark colored pencil on the dark colored floor. Under Houston Nat. Bank v. Adair, 1948, 146 Tex. 387, 207 S.W.2d 374, and other Texas decisions, such testimony is conclusive proof that the “color and condition” of appellant’s floor, and any danger that might conceivably result from it, was “open and obvious, and easily perceptible to” appellee.

“If the inference might be drawn from the evidence that Mrs. Adair’s fall was due to the presence of some liquid or other substance on the stairs, the bank would not be liable because there is no proof that the bank’s employees placed it there or knew or had reasonable opportunity to know of its presence. * * * It was also obvious that the stairs were not covered or corrugated, and that no handrails existed except the balustrades on the side of the stairs. The size and shape of the top of each balustrade had not been changed since the building had been constructed, and it was apparent that such surface was too wide to be grasped or gripped from above. All of these conditions being open and obvious to Mrs. Adair when she started down the stairway, it follows as a matter of law that the evidence does not show that the bank violated its duty to Mrs. Adair, and the plaintiff is barred from, recovery because Mrs. Adair voluntarily exposed herself to such risks as existed. See authorities cited above and Restatement, Torts, Sec. 466.” (146 Tex. 390-391, 207 S.W.2d 375-376.)

The Texas Supreme Court, speaking through Justice Greenhill, in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, p. 383, said: “The Adair case (supra) may be said to stand for the proposition that when a condition is patently open and obvious and the danger apparent, and when the plaintiff has encountered it many times, he will be charged in law with knowledge and appreciation, and the occupier owes him no duty.”

The Supreme Court holding in the Adair case is applicable to the facts of this case. The appellee, like Mrs. Adair, was familiar with the premises. He had “ample opportunity to observe their condition.” Indeed, unlike Mrs. Adair, he specifically admitted that he had observed their condition. There is no evidence, pleading, or suggestion of any hidden or latent defect. Nor does the fact that the pen was on the floor establish any liability against appellant. There is no proof that appellant’s employees placed it there or knew or had reasonable opportunity to know of its presence. The jury found both of these matters in favor of appellant. The mere fact that appellee slipped and fell does not mean that appellant was negligent. There must be evidence that appellant violated its duty to protect appellee “against conditions of the premises which would involve an unreasonable risk” to his safety. See also Stephenson v. Camp, 1958 (Tex.Civ.App., El Paso), 311 S.W.2d 512, writ ref., n. r. e.; Hansen v. Ware’s, Inc., 1959 (Tex.Civ.App., San Antonio), 324 S.W.2d 909, no writ history; Contreras v. H. E. B. Grocery Company, 1959 (Tex.Civ.App., San Antonio), 328 S.W.2d 469, writ refused; Morehead v. H. E. Butt Grocery Company, 1960 (Tex.Civ.App., Austin), 333 S.W.2d 428, no writ history.

Wagner v. Lone Star Gas Company, 1961 (Tex.Civ.App., Texarkana), 346 S.W.2d 645, writ ref., n. r. e. Plaintiff slipped on a polished floor in defendant’s auditorium. A directed verdict for the defendant was affirmed. The court said: “Her observation of the floor during the time she spent in the auditorium gave her knowledge of its danger equal to any warning the company might have given.”

Lederman v. Cunningham, 1955 (Tex.Civ.App., Beaumont), 283 S.W.2d 108, no writ history.

As the foregoing cases show, and as was said in Marshall v. San Jacinto Bldg., 1934 (Tex.Civ.App., Beaumont), 67 S.W.2d 372, writ refused: “ ‘The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. * * * And, hence, there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant.’ ”

The undisputed evidence shows that ap-pellee’s knowledge of the condition and color of the floor was equal to that of appellant.

“It has been uniformly held by the courts of this State that the right of recovery for injuries resulting from negligence is based upon the violation of a duty.” A. C. Burton Co. v. Stasney, 1949, (Tex.Civ.App., Galveston), 223 S.W.2d 310, writ refused.

Assuming for a moment that appellant was guilty of negligence in having a dark floor, such negligence could not have been a proximate cause of appellee’s fall. Proximate cause embraces at least two distinct concepts, both of which must be present, namely, cause in fact,- — -a cause which produces an event and without which the events would not have occurred, and foreseeability. Baumler v. Hazelwood, 1961, 162 Tex. 361, 347 S.W.2d 560. In our opinion the “dark color or condition” of the floor was neither a cause in fact nor a foreseeable cause of appellee’s fall.

To resolve the issue of “cause in fact”, we need look no further than appellee’s own testimony. He admitted there was no causal connection between the color and condition of the floor and the fact that he slipped on the pencil. He testified: that the cart could have kept him from seeing the pencil on the floor and that even if it had been pitch dark or as dark as the ace of spades it probably would not have made any difference.

In determining whether a defendant could reasonably have foreseen that injury to the plaintiff would result from his negligence, Texas courts have followed the opinion of Judge Gaines in Texas & P. Ry. Co. v. Bigham, 1896, 90 Tex. 223, 38 S.W. 162. The court said, “The act of the defendant in permitting the fastening to its gate to become insecure was in itself lawful; and, since it was clearly out of the range of reasonable probability that an injury to the person of any one should result, it should be held, as a matter of law, that the negligence of the company gave no right of action for such injuries.”

The court also quoted with approval from a Michigan case, Sjogren v. Hall, 1884, 53 Mich. 274, 18 N.W. 812.

In Bledsoe v. City of Amarillo, 1940 (Tex.Civ.App., Amarillo), 143 S.W.2d 215. There the court said, “Measured by the rules announced in the above authorities, and viewing the pleadings of the appellant in their most favorable light, we think it would be highly speculative to assert that the necessary element of foreseeableness and anticipation of injury is present in the instant case.”

See Corpus Christi Speedway v. Morton, 1955 (Tex.Civ.App., San Antonio), 279 S.W.2d 903, no writ history.

See also Houston Lighting & Power Company v. Brooks, 1960, 161 Tex. 32, 336 S.W.2d 603; Davidson v. Methodist Hospital of Dallas, 1961 (Tex.Civ.App., Dallas), 348 S.W.2d 400, writ ref., n: r. e., and City of Bryan v. Jenkins, 1952 (Tex.Civ.App., Waco), 247 S.W.2d 925, writ ref., n. r. e. In the case last cited it is stated, “We find no evidence which, in our opinion, shows that appellant should have reasonably foreseen or anticipated that its omission to perform any of the acts alleged by appellees would, in a continuous sequence unbroken by any new or intervening agency, probably result in the injury, or some similar injury, * * * of which complaint is made.” (Emphasis added).

While the facts are somewhat different, the principles announced in the foregoing decisions are controlling here. The act of having a dark floor is not in itself unlawful. Texas & P. Ry. Co. v. Bigham, 1896, 90 Tex. 223, 38 S.W. 162. There is no evidence that anything other than the particular ball point pen in question would not have shown up on the dark floor. The verdict is that appellant’s employees did not drop the pencil on the floor. Appellant had no duty to control persons other than his own employees, Corpus Christi Speedway v. Morton, 1955 (Tex.Civ.App., San Antonio), 279 S.W.2d 903, no writ history, much less to see that they did not drop dark colored objects on the floor. To hold appellant liable in this case, it would be necessary to charge appellant with the ability to foresee that persons not under its control would drop an object that would be approximately the same color as the floor and that someone would slip on the object before appellant, in the exercise of ordinary care, could discover and remove it. “ * * * nothing short of prophetic ken could have anticipated the happening of the combination of events which resulted in the injury of the person of the plaintiff.” Texas & P. Ry. Co. v. Bigham, 1896, 90 Tex. 223, 38 S.W. 162. Appellant had “neither a legal nor a moral obligation to guard against that which cannot be foreseen.”

In our judgment the learned trial court erred in overruling the appellant’s motion to disregard the jury’s answer to the liability issues and its motion for judgment non obstante veredicto. Since the case is being reversed and rendered it is unnecessary to discuss other points raised by the appellant, as it would unduly lengthen the opinion and serve no useful purpose in the disposition of this case.

The judgment awarding damages to the appellee is reversed and judgment is here rendered for the appellant that appellee take nothing by his suit.

Reversed and rendered.


author: BATEMAN, Justice.

text:
    Sheppard W. KING, III, Appellant, v. CITY OF DALLAS, Appellee.
    No. 16301.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 3, 1964.
    Rehearing Denied Jan. 31,1964.

      Brady, Drake & Wilson, Dallas, for appellant.
    H. P. Kucera, City Atty., and N. Alex Bickley and Kenneth C. Dippel, Asst. City Attys., Dallas, for appellee.
   BATEMAN, Justice.

In this trespass to try title action appellant sought to recover certain land conveyed by his parents to appellee on an express condition subsequent which he says was breached. He also sued for damages. At the conclusion of a non-jury trial the court rendered judgment denying appellant any relief. We have concluded that the judgment must be affirmed.

The deed in question is dated April 13, 1914, and recites that it is given “for and in consideration of the City of Dallas using the land hereafter described for public park purposes,” and that it is made upon and subject to the condition that the property shall be used by the City of Dallas exclusively for public park purposes, and that said condition shall run with said property, and that “should the same, at any time be violated, the title to said lot shall ipso facto, revert to and revest in us, the grantors, or our heirs or assigns, as the case may be.” Appellant succeeded to the interest of the grantors.

By his first point of error on appeal the appellant says the court below erred in failing to hold that the language of the deed in question created a condition subsequent which was violated, and that such violation caused the title to revert to him.

Findings of fact and conclusions of law, filed in response to appellant’s request, were to the effect that after the subject property was conveyed to the City it was included in the park system as a part of the Turtle Creek Parkway, which was developed as a system of larger parks, having recreational and auditorium facilities, connected by a smaller elongated park along Turtle Creek, consisting of “joinder strips,” such as subject property, mainly for beauty and preservation of natural terrain for the traveling public and neighboring property. Due to the topographical conditions and the size and location of the property, except as a part of this park system, the subject property would not justify development as a park or for park purposes, its use as a park being dependent upon the other properties developed in connection therewith; and were it not for the widening of Cedar Springs Road and Turtle Creek Boulevard the subject property could not have been developed to its highest use for park purposes without creating a traffic hazard; and since such widening of the streets and bridge the subject property is more useful and beneficial for park purposes than it was before.

The court also found that at the date of the deed appellant’s parents owned the property across the street, upon which they built their home in 1925, and that prior to 1942 they had sold all of their interest in the properties in the area. The court further found that the Kessler Plan of 1911 showed the system of parks and parkways in the city and recommended the widening of Turtle Creek Boulevard and Cedar Springs Road in conjunction with the development of Turtle Creek Parkway as a park; that this plan was carried forward and adopted by the “Ulrichson Report” in the year 1927; that S. W. King, Jr., one of the grantors in the deed in question, served on the Chamber of Commerce committee that approved the Ulrichson Report and that he knew or should have known that the subject property would be used, and was being used prior to his death in 1946, as a part of the Turtle Creek Parkway and that the master plan of the City of Dallas for this area, as carried forward in subsequent reports, anticipated and provided for the widening of Turtle Creek Boulevard and Cedar Springs Road in this area; that at the time of the conveyance in 1914 the general park plan for the City, including the Turtle Creek Parkway, was in existence and purchases had been made and were being made by the City in conformity therewith ; that the City has used and maintained subject property for public park purposes continuously from the time of its acquisition.

The court further found that prior to 1932 the City had incorporated into the paved portion of the street 70 square feet of subject property, since which time the City has held peaceful, continuous and adverse possession of the property, exempt from taxes, under a deed duly registered; that though appellant and his predecessors in title knew or should have known of the use of the 70 square feet, they made no attempt to exercise the right of re-entry on account thereof; and that for more than ten years prior to the filing of this suit a portion of subject property had been used for utilities and utility lines, as well as for a well defined pathway, but that no right of re-entry had been asserted by appellant or his predecessors in title on account thereof; that the subject property sloped very steeply from Gillespie Avenue down to the center of Turtle Creek, with a drop of over ten feet down to the edge of the water, only a small portion being at ground or street level; that Turtle Creek itself is a part of the storm sewer system of the City of Dallas, and a portion of subject property, together with Turtle Creek itself, constitutes the catch basin for the pressure sewer constructed to alleviate flooding, and that a portion of subject property floods periodically as a result of drainage and local rains.

The court also found that, commencing on or about May 1, 1960, the City utilized approximately 5,870 of the 17,400 square feet of subject property for the bridge, roadway area and sidewalks in and around the property, together with the retaining wall in connection with the bridge; that the traffic at the intersection of Gillespie Avenue and Cedar Springs Road was such as to constitute a hazard to those who would stop or park or slow down to view the premises, but that the widening of Cedar-Springs Road and the bridge, and the utilization of a portion of the subject property for the same, have resulted in an increased use of the property for park and parkway purposes, made it available to a greater number of people and allowed the utilization of additional areas in the center part of the boulevard area for park purposes and for beautification, so that the total parkway project has been enhanced insofar as its utilization by the public is concerned; and that the property is more valuable for park purposes and usable by a larger number of citizens than before the widening.

A careful examination of the entire record demonstrates that the foregoing fact findings are amply supported by the evidence. Hence, they are binding on us and we are not authorized to substitute our findings therefor even if we were disposed to do so. Bavousett v. Bradshaw, Tex.Civ.App., 332 S.W.2d 155, err. ref. n. r. e.; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 621, 23 A.L.R.2d 1114.

It seems clear to us from the record before us that the covering up of a portion of the subject property by the widening of the paved streets and bridge adjacent to it, and the necessary retaining wall and sidewalks, did not constitute a diversion or departure from the use of the property to which it was dedicated by the deed of gift. Incidentally, it will be noted that the deed required the property to be used “for public park purposes,” not “as a park.” It seems to us that the phrase used would permit almost any use of the property that would reasonably and probably contribute materially to the enjoyment of the remainder of the donated area or adjacent park properties by members of the public. Could it be contended that the gift of a tract of land on condition that it be used exclusively for park purposes would be defeated merely because the City constructed footpaths through the property in order that the public might walk through it and enjoy the beauty thereof? Would there be any difference in principle if those footpaths were later graveled, or even paved? Would the clearing of bridle paths through the donated park area be considered as withdrawing the area covered by the paths from “park purposes”? Assuming that negative answers to these questions are inevitable, then we opine that it would be proper for the City to construct graveled or paved roadways through the park area in order to permit motorists to enjoy the same; and if that opinion is well grounded, then it is but a short step further to say that the widening of a paved roadway or bridge along the edge of the area in question, whereby the enjoyment of the remaining area as a park or parkway would be enhanced, would actually be a use for park purposes.

“Park purposes are not confined to a tract of land with trees, grass, and seats, but mean a tract of land ornamented and improved as a place of resort for the public, for recreation and amusement of the public. The construction and maintenance of a building for museums, art galleries, botanical and zoological gardens, and many other purposes, for the public benefit, are recognzed as legitimate purposes.” Furlong v. South Park Com’rs, 320 Ill. 507, 151 N.E. 510, 511.

The Supreme Court of Florida used this language in Ocean Beach Realty Co. v. City of Miami Beach, 106 Fla. 392, 143 So. 301, 302:

“It is not contended that any of the property has been abandoned for park purposes, except that strip along the edge farthest from the Ocean which was used in the widening of the street, and the record further shows that the widening of the street was necessary and essential to make the park available for the pleasure and recreation of the great number of people who visit it.
“It has been held that the laying out of walks and even streets around or through a park is not at all inconsistent with the dedication for park purposes where the same are necessary or contribute to the full enjoyment of the property for park purposes.”

We are also impressed with the conclusion reached and the language used in the California case of Griffith v. City of Los Angeles, 175 Cal.App.2d 331, 346 P.2d 49, 56. There a tract of 3,800 acres was donated to the City on condition that it be used exclusively “as a public park and pleasure ground, for the amusement, recreation, health and pleasure of its inhabitants.” In the area was a canyon which the City filled and leveled to produce 40 acres of level land for recreational use, and the donors’ son and heir sued to enforce the reverter clause in the deed. In overruling his contention the court said, in part:

“However, a dedication must be understood and construed with reference to its primary object and purpose. Nothing is improper which conduces to that object. The real question is whether the use in a particular case, and for a designated purpose, is consistent or inconsistent with such primary object. Such use is authorized as is fairly within the terms of the dedication and reasonably serves to fit the property for enjoyment by the public in the manner contemplated. The dedicator is presumed to have intended the property to be used by the public in such way as will be most convenient and comfortable, and according to not only the proprieties ,and uses known at the time of the dedication, but also to those justified by lapse of time and change of conditions. Wattson v. Eldridge, 207 Cal. 314, 320, 278 P. 236. It cannot reasonably be supposed that the dedicators intended otherwise than that Griffith Park should respond to whatever demands new improvements and increased facilities might make on it, so long as such demands always be consistent with the conditions stated in the grant.”

That is substantially what the trial court held, and we agree with this holding.

Appellant relies upon City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640, and Lawyers Trust Co. v. City of Houston, Tex., 359 S.W.2d 887, but we do not regard either of these cases as controlling here. In the Etheridge case the grant was to the City of Dallas on condition that the land be used for park purposes only, and it was shown that the City had cut a public road through the property which it kept graveled and otherwise suited to public use. As stated in the opinion of the Supreme Court, “There is no evidence in the record that this road was built to further the public’s use and enjoyment of the property as a park. On the contrary the evidence in the record shows conclusively that such was not the purpose of the road. The use of a part of the property as a public road under the facts shown was inconsistent with the purpose to which the City was required to devote the property and was a breach of the condition of the easement.” In the case before us, however, it was shown, and the court found, that the widening of the streets and bridge and the construction of the retaining wall and sidewalks resulted in an increased use of the property for park and parkway purposes, making it available to a greater number of people, and allowed the utilization of additional areas in the center part of the boulevard area for park purposes and for beautification.

In Lawyers Trust Co. v. City of Houston, supra, it appeared that certain property was conveyed to the City on condition that it be used for parks, civic centers, schools or community places. The jury held that the land had ceased to be used for park purposes and had been abandoned as a public park. Those jury findings clearly authorized the holding that the condition had been breached, and also clearly distinguish that case from this.

Appellant’s first point is accordingly overruled.

His second and third points assert that the court erred in admitting in evidence certain facts and circumstances in existence before and after the execution of the deed in question, including various city plans, newspaper clippings, magazine articles, committee reports, drawings, plats, maps and excerpts from books, all of which are said to be hearsay and to have the effect of varying the express terms of the deed in question. It is argued thereunder that the deed is unambiguous and should be so construed as to give effect to the parties’ intention, as gathered from the four corners of the instrument, which alone should be considered. City of Corpus Christi v. McCarver, Tex.Civ.App., 275 S.W.2d 194, reversed on other grounds McCarver v. City of Corpus Christi, 155 Tex. 153, 284 S.W.2d 142; Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166. We recognize this principle of law and also agree that the deed involved here is unambiguous. However, we do not understand that the testimony and other evidence complained of were offered for the purpose, or had the effect, of varying, enlarging or contradicting the terms of the deed. Rather, they were obviously offered for the purpose of demonstrating that the City’s acts actually carried out and made effective the real intentions of the donors. To do so it was reasonably necessary and proper for the City to show the surrounding circumstances.

Our courts have held numerous times that even in the case of an unambiguous deed it is not improper for the court to admit evidence of the existing facts and circumstances for the purpose of ascertaining the real intention of the parties. Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004; Scott v. Walden, 140 Tex. 31, 165 S.W.2d 449, 154 A.L.R. 1; Stevens v. Galveston, H. & S. A. Ry. Co., Tex.Com.App., 212 S.W. 639. The following language used by Chief Justice Alexander in Murphy v. Dilworth, supra, is applicable here:

“In other words, if the meaning of the language used in a written contract becomes uncertain when an attempt is made to apply it to the subject matter of the contract, though not otherwise uncertain, parol evidence is permissible to aid in making the application. First National Bank v. Rush, Tex.Com.App., 210 S.W. 521; Klueter v. Joseph Schlitz Brewing Co., 143 Wis. 347, 128 N.W. 43, 32 L.R.A.,N.S., 383; 22 C.J. 1192. This does not mean, however, that the parties may prove the making of an agreement different from that expressed in the written contract, nor that the unambiguous language used in the contract may be violated or the legal effect thereof changed. It merely permits proof of the then existing circumstances, in order to enable the court to apply the language used therein to the facts as they then existed. Reynolds v. McMan Oil & Gas Co., Tex. Com.App., 11 S.W.2d 778; Southern Gas & Gasoline Engine Co. v. Richolson, Tex.Com.App., 216 S.W. 158.”

As said by Judge Hickman, then a member of the Commission of Appeals, in Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579, 583:

“It is proper to consider parol testimony as to the circumstances surrounding the parties out of which the contracts grew, not to add to or vary their terms, but to apply the contracts to the subjects with which they deal for the purpose of ascertaining the real intention of the parties. First National Bank of Amarillo v. Rush, Tex.Com.App., 210 S.W. 521; Ryan v. Kent, Tex.Com.App., 36 S.W.2d 1007.”

Appellant complains that many of the documents offered by appellee were admitted in violation of the hearsay rule. None of them even purported to prove any controverted fact, but only to show circumstances surrounding the formation and maintenance of that part of the park system which included the subject property. If any of such documents contained statements that could be said to be hearsay, the error in admitting them was harmless in that the exclusion or admission thereof could not have changed the result. A careful study of the entire record before us indicates that a correct and proper result was reached and that nothing occurred in the trial which amounted to such a 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. Points two and three are overruled.

Affirmed.