author: BELL, Chief Justice.

text:
    J. W. LUVUAL et ux., Appellants, v. HENKE & PILLOT, DIVISION OF the KROGER COMPANY, et al., Appellees.
    No. 13924.
    Court of Civil Appeals of Texas. Houston.
    Jan. 31, 1963.
    Rehearing Denied March 28, 1963.
    Second Rehearing Denied April 18, 1963.

      Carl Waldman, Ernest L. Sample, Beaumont, for appellants.
    Keith, Mehaffy, McNicholas & Weber, Beaumont, James W. Mehaffy, Dewey J. Gonsoulin, Beaumont, of counsel, for ap-pellee.
   BELL, Chief Justice.

Appellant, J. W. Luvual, sued appellee to recover damages that resulted from injuries received by his wife, Ann, when an automobile in which she was riding was in collision with a truck belonging to Henke & Pillot which was being driven by Kinsey Whitfield, an agent of Henke & Pillot. Trial was to a jury and based on the jury verdict the court rendered judgment that plaintiff take nothing.

Appellant’s theory of recovery against Henke & Pillot was that Kinsey Whitfield as its agent, acting in the course and scope of his employment, was negligent and his negligence was a proximate cause of the collision. Another theory of recovery was that Henke & Pillot was negligent in entrusting its truck to Whitfield who was an incompetent driver, which fact was known to it or could have been known in the exercise of reasonable diligence. This latter theory was not submitted to the jury because Henke & Pillot had judicially admitted that Whitfield at the time of the accident was its employee and was acting in the course and scope of his employment.

The court in its main charge before the submission of the special issues defined certain legal terms, two of which we will notice. He defined the term “proper control” as meaning “that control exercised by a person of ordinary prudence, in the exercise of ordinary care, under the same or similar circumstances.” He defined “excessive speed” as “a greater rate of speed than that at which a person of ordinary prudence in the exercise of ordinary care would have operated a vehicle under the same or similar circumstances.” “Ordinary” and “negligence” were defined in the usual manner. The court then submitted special issues inquiring as to alleged acts of negligence on the part of Whitfield. There was no contention that any contributory negligence existed. We need notice only the following issues and the jury’s answers to them:

Special Issue No. 3 inquired as to whether Whitfield, as he approached the intersection in question and immediately prior to the collision, was driving his truck at an “excessive rate of speed.” The jury answered, “We do.”

Special Issue No. 4 inquired if the jury found his driving at an excessive rate of speed was negligence. The jury answered, “We do not.” Special Issue No. 5 was predicated on a “We do” answer to Special Issue No. 3 and inquired if such negligence was a proximate cause of the collision. The jury answered, “We do not.” Special Issue No. 6 inquired whether immediately prior to the collision Whitfield failed to keep the truck under “proper control.” The jury answered, “We do.” Special Issue No. 7 asked whether such failure was negligence and the jury answered “We do not.” Special Issue No. 8 was predicated on a “We do” answer to Special Issue No. 6 and inquired as to whether the jury found the failure to keep the truck under proper control was a proximate cause of the collision and the jury answered “We do not.” Special Issue No. 9 inquired as to whether the jury found Whitfield, immediately before the collision, was driving in excess of 30 miles per hour. The jury answered “We do.” By its answer to Special Issue No. 10 the jury found such was negligence, but in answer to Special Issue No. 11 found such was not a proximate cause of the collision. In answer to Special Issue No. IS the jury found the collision was the result of an unavoidable accident.

Appellant here takes the position that the jury found the defendant Whitfield guilt}' of negligence in driving at an excessive rate of speed, in driving at a speed in excess of 30 miles per hour, and in failing to keep the truck under proper control, and that while the jury found that none of these acts was a proximate cause of the collision, each act was, as a matter of law, a proximate cause of the collision. He also takes the position that unavoidable accident was not raised by the evidence.

The collision in question occurred July 2, 1960, in Chambers County, at the intersection of State Highways 124 and 73. At this point Highway 73 runs in a southwesterly direction. Highway 124 runs in approximately an east-west direction at this point. At that time Highway 73 ran from Pt. Arthur west and ended at Highway 124. The truck owned by Henke & Pillot and driven by its employee Whitfield was coming from Pt. Arthur to Houston. When Whitfield reached the intersection it would be necessary for him to turn left on Highway 124 to proceed to Houston. Actually Highway 73 runs approximately southwest but about 100 feet before it intersects Highway 124 it curves toward the north, so that the intersection with Highway 124 is almost at a right angle. At the intersection there is a stop sign controlling traffic on Highway 73 as it comes into Highway 124. Approximately 300 feet easterly from the intersection there is on Highway 73 a slightly raised 4 foot wide concrete median that runs to a point about 60 feet from the intersection. At a point about 80 feet from its southwesterly terminus the esplanade or median begins to curve to the right as one is coming from Pt. Arthur as was Whitfield.

We need not detail the various warning signs and speed signs. It suffices to say that Whitfield was well acquainted with the signs and the intersection. Also the collision occurred about 11 o’clock in the morning and under the testimony Whitfield was exceeding the 30 mile speed limit.

There were no witnesses to the accident who could relate material facts concerning what led up to the collision, other than Whitfield. A highway patrolman who investigated the accident gave evidence of what he found on the ground, but his testimony sheds little light on the problem before us, except as we shall hereafter notice.

Whitfield testified he was proceeding from Pt. Arthur to Houston. He had a rash on his right foot that he referred to as “Pacific Rot” because he got it while serving with the armed forces in the Pacific Theatre of operations. Because of this he had cut the top part of the shoe from the lower part of the place where the shoe laces begin so that below that point his foot was exposed and there was only the sole of the shoe remaining below the laces. About 200 feet before he got to the stop sign he was driving at 35 or 36 miles per hour. He had been going about 45 miles an hour but had slowed down. At the 200 foot point he thought the truck would not reach the intersection so he placed his foot lightly on the accelerator to “goose” the speed up. He said he barely increased the speed. At a point about 150 feet from the stop sign he attempted to lift his foot from the accelerator and found it was caught on the sole of his shoe. He had been using this shoe in this condition for some time and had had no trouble with it. As he attempted to “snatch” it loose, the truck hit the esplanade and he lost control of the truck. The truck jumped the esplanade and went over to the left side of the Highway 73 and on across Highway 124. The truck jumped the esplanade about 3 or 4 feet from the end of it and 20 or 25 feet from the stop sign. He kept trying to get control of his truck because he was on the wrong side of the road and he knew he might have a head-on collision. He was unable to get control. He knew about the stop sign. He was going to turn left on Highway 124 to go to Houston. He could not make the turn at 30 miles per hour without turning over. At the speed he was going, had he not lost control of the truck, he could have stopped at the stop sign. There is no evidence he could not have done so. The tachometer showed the speed to have been 45 miles per hour at a time before the accident, but Whitfield testified he had complained to his employers that it was working incorrectly. Too, Officer Manning said he could not say what the last reading on the tachometer was immediately before the accident, because he didn’t remember. He looked at it at the scene of the accident. Whitfield said someone told him it showed 45 miles per hour. A copy of the tachometer in evidence shows 45 miles per hour and then an abrupt drop to zero. Mr. Manning, the investigating officer, testified the fact that the tachometer showed 45 miles per hour and then an abrupt drop to zero would not, because of the short time interval, necessarily mean the driver was not slowing to 30 miles per hour as he testified.

As the truck went across Highway 124 it was hit by the automobile occupied by Mrs. Luvual.

Appellant filed his motion asking the court to render judgment notwithstanding the verdict. The position taken was that the jury’s finding that Whitfield’s negligence in driving at an excessive rate of speed, at a speed in excess of 30 miles per hour, and in failing to keep the truck under proper control, were not a proximate cause of the collision, had no support in the evidence, but to the contrary, as a matter of law, each was a proximate cause. Too, he contended there was no evidence to support the finding of unavoidable accident and the issue should not have been submitted. Also, on motion for new trial, the position taken was that such answers were contrary to the overwhelming weight and preponderance of the evidence.

In determining whether the trial court should disregard the jury’s answers to certain issues and then render judgment in favor of the movant, it must appear there is no evidence of probative value supporting the jury’s answers. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194. We must view the evidence most favorable to the party against whom such judgment is sought. Texas Employers Ins. Ass’n v. Smith, Tex. Civ.App., 235 S.W.2d 234, C.C.A., writ ref.; Martin v. Texas & N. O. R. Co., Tex.Civ. App., 267 S.W.2d 581, C.C.A., n. r. e.

While there may he cases in which a court would be warranted in holding an act of negligence to be a proximate cause of an injury, such cases are extremely rare and generally the question of proximate cause is one of fact. Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063.

We have reached the conclusion that there was evidence of probative force supporting the jury’s answers that the negligent acts of Whitfield were not the proximate cause of the collision but that the collision was the result of an unavoidable accident.

To be the proximate cause of an event, there must be both causation in fact and foreseeability. Baumler v. Hazelwood, Tex., 347 S.W.2d 560; City of Austin v. Salazar, Tex.Civ.App., 241 S.W.2d 445, C. C.A., ref., n. r. e.

Here, under the facts above recited, the jury could well have reasoned that though Whitfield was driving in excess of 30 miles per hour, which was excessive under the circumstances, and that-this also constituted a want of proper control, that he could not reasonably foresee that any accident would occur because he would be able to stop his truck before entering the intersection. He was some 150 feet away from the intersection. Whitfield, who was certainly very familiar with his truck, its condition and the condition of the brakes, testified he could have stopped. This is some evidence the jury could in reason believe. There is no contrary evidence. Too, the highway patrolman testified to facts showing good braking power.

Too, the jury could well reason that there was no causation in fact but that the only reason for the collision was that Whitfield’s shoe hung on the accelerator as he testified, and that while attempting to get his foot loose his truck hit the esplanade, causing him to lose control of the truck. Such would not, however, necessarily constitute a failure to maintain proper control under the circumstances. Too, the jury could well have reasoned that under such circumstances the accident would have happened even though Whitfield’s speed had been 30 miles per hour or less because on losing control when his foot caught under the accelerator he was unable to get it loose and could not use his brakes but could only do as he said he tried to do, that is, regain control and return to the correct side of the road to avoid possible collision with any oncoming vehicle. Certainly we cannot say as a matter of law there was either the necessary causation or foreseeability.

The facts above recited and discussed show that an issue of unavoidable accident was raised. Unavoidable accident is raised if there is evidence that the accident resulted from something other than some act of negligence of the parties. Here one could reasonably conclude that the only thing that caused the collision was the loss of control of the truck because of Whitfield’s foot or shoe becoming hung on the accelerator. Too, it could certainly be viewed that his driving with the shoe in that condition was not negligent, particularly when he had been driving with that shoe in the described condition for some time and had had no trouble. It is interesting to note that it was not even alleged in appellant’s petition that such was negligence. It is true that this act of Whitfield’s in getting his foot caught was his own act, but it could be viewed as the only cause of the accident and could be viewed as a non-negligent act. This would raise the issue of unavoidable accident. Wichita Transit Co. v. Sanders, Tex.Civ.App., 214 S.W.2d 810, C. C.A.

Appellant also contends the jury’s answers to the proximate cause issues and the unavoidable accident issue are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. In passing on this question we must consider and weigh all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Applying such test to all of the evidence in the case, we are unable to say that such answers are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

What we have said with regard to proximate cause has been based on the assumption that the jury found a want of proper control and negligence in the speed at which the truck was operated. The parties have briefed the case on such assumption though we note appellant in his motion for new trial raised the question of conflict in the jury’s answers that we will discuss. We assume he abandoned such because he realized such would not be helpful to him in the light of the jury’s finding of an unavoidable accident.

The court in its charge defined excessive speed. When the jury answered Special Issue No. 3 that it found Whitfield drove his truck at an excessive rate of speed, in the light of the court’s definition, there was a finding of negligence. Yet, in answer to Special Issue No. 4, the jury found that such excessive speed was not negligence. Too, in answer to Special Issue No. 9, the jury found the speed was in excess of 30 miles per hour and this was negligence. The findings are in conflict and each cancels the other. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985; Kilgore v. Howe, Tex.Civ.App., 204 S.W. 2d 1005, C.C.A., no writ hist.; Interstate Trust & Banking Co. v. West Texas Utilities, Tex.Civ.App., 88 S.W.2d 1110, C.C.A., no writ hist.

The same is true with regard to proper control. The term was defined in the court’s charge. In answer to Special Issue No. 6, the jury found Whitfield failed to keep his truck under proper control, but in answer to Special Issue No. 7, it found such was not negligence.

These conflicting answers cancel each other and leave appellant without any finding of negligence. This leaves standing the finding of unavoidable accident.

Appellant complains that the trial court erred in depriving him of his ground of recovery based on his allegation that Henke & Pillot was negligent in entrusting the truck to Whitfield who it knew, or, in the exercise of reasonable diligence, could have known, to be an incompetent driver.

Before commencement of the trial, Henke & Pillot judicially admitted, through stipulation, that Whitfield at the time in question was its agent and was acting in the course and scope of his employment. Appellee moved the court not to allow any evidence on alleged incompetency of Whitfield. No evidence was allowed and there was no submission of this theory of recovery. This theory was based on the allegations of five previous automobile collisions and two traffic tickets for speeding.

We are unable to find in the record any showing by way of any type of bill of exception that the allegations, or any of them, are true. We find no evidence at all offered on these allegations. While appellant very properly would not go contrary to the court’s ruling and offer proof to a jury, he should show in the record what evidence he could rely on to establish the allegations. Without the benefit of such, we are not in a position to appraise the complaint of reversible error.

The only theory under which the previous acts of alleged negligence would be admissible would be to show negligence on the part of the owner of the vehicle in entrusting an incompetent driver with the vehicle, so as to make an owner liable even though the driver was not his agent or was not acting in the course or scope of his employment. When agency and course and scope of employment were admitted, previous conduct became immaterial in this case. Patterson v. East Texas Motor Freight Lines, Tex.Civ.App., 349 S.W.2d 634, C.C.A., ref., n. r. e. Even if Henke & Pillot should be shown to be negligent in entrusting this truck to Whitfield, there would be no liability unless appellant showed further that Whitfield was guilty of a negligent act that was a proximate cause of the accident. There is no such finding here. Seinsheimer et al. v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Mundy et al. v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587; Spratling et al. v. Butler et al., 150 Tex. 369, 240 S.W.2d 1016.

Finally, appellant complains that the trial court erred in not allowing him to prove by Mr. Manning, the investigating officer, that while he was investigating the accident, Whitfield first told him that the air went out on his truck and the brakes failed. The officer tested the brakes and found 65 or 70 pounds of air pressure. Mr. Manning was the first witness called by appellant. He testified that when he arrived at the scene of the accident there were numerous vehicles there. The only person involved in the wreck who was present when he arrived was Whitfield. He didn’t know how long after the wreck he arrived. He was 4 or 5 minutes away. He didn’t know how long it took someone to notify him. When an objection was made to the offer in evidence of what Whitfield told Mr. Manning, the court stated, “At this time I sustain the objection in line with our understanding that we had up here at the bench.” The bill of exception was then made. It reflects that Mr. Manning said he couldn’t say how long it was after the accident before he arrived, but it was less than 10 minutes after he was notified. The other people figuring in the wreck were on their way to the hospital. About 3 minutes after he got there he had his conversation in which Whitfield first told him the air went out on the truck. Manning tested the brake and went back and asked Whitfield why he told him the air went out. Then Whitfield told him his foot got hung.

Mr. Ed Berberich, who was driving the automobile, and who was a plaintiff, testified an ambulance arrived about 15 minutes after the accident. He said an officer (he didn’t know who) got there about the same time as the ambulance.

After Mr. Manning testified he was excused on motion of appellant, but it was agreed to by appellee.

When Whitfield testified, he denied, in response to appellant’s question, that he first told the officer his brakes went out. When Whitfield made this denial, appellant asked to be allowed to impeach the witness by reading the testimony of Officer Manning given out of the hearing of the jury.

Appellee’s objection to the offer of the statement of Whitfield was that it was not res gestae and would be hearsay.

Each case must be considered in the light of all facts. Other decided cases are of little help except as the principles of law are announced. Basically the test is whether under all of the facts the expressions may be said to be the words of the person uttering them instead of the event speaking through the person. A great deal of discretion is vested in the trial judge in passing on the admissibility of evidence. The burden is on the person offering testimony to show its admissibility.

Here it is not shown how long after the accident Whitfield made the statement. It is only shown that Mr. Manning got to the scene about 10 or 15 minutes after he was notified of the accident. When he got there, there were many other vehicles. Everyone involved in the accident except Whitfield had left. There was some evidence that the ambulance which took them arrived about 15 minutes after the accident and that Mr. Manning had not arrived. When Mr. Manning arrived he did not immediately talk to Whitfield but spent about 3 minutes investigating. Whitfield had said nothing until Mr. Manning asked Whitfield to tell him how it happened. In response to the question Whitfield made the statement that was excluded from the evidence. The trial court could well have concluded the statement was but a narrative of what occurred and not the event speaking and therefore it was not admissible as res gestae.

To be admissible against Henke & Pillot as original evidence it would have to come within the res gestae rule. It would be admissible against Whitfield who was a party to the suit. The offer, however, was general and it was not asked to be admitted only as against Whitfield. Where evidence is inadmissible against one of the parties and admissible against the other, the party offering it must offer it against the party against whom it is admissible. If he does not do so, but offers it generally and the court sustains an objection, there is no error in exclusion. Berger v. Kirby et al., Tex.Civ.App., 135 S.W. 1122, C.C.A., aff’d 105 Tex. 611, 133 S.W. 1130; McCormick and Ray, Texas Law of Evidence, 2nd Ed., Sec. 21, p. 20.

At the time Manning testified, Whitfield had not testified, so at this stage the evidence was not admissible for impeachment. After Whitfield testified and denied making the statement, appellant offered to read the testimony Manning had given in connection with perfecting appellant’s bill of exception after the testimony had been excluded. Appellee had not cross-examined Manning on this phase of his testimony. It was not necessary because it was excluded. Appellant asked that Manning be excused after he had completed his testimony. He was excused by agreement. We cannot say the court under such circumstances abused his discretion in excluding the evidence for impeachment purposes. Appellee would have been deprived of his right of cross-examination. The record does not reflect any effort by appellant to have Mr. Manning return and in person give the testimony.

The judgment of the trial court is affirmed.

On Motion for Rehearing

Appellant insists that we were in error in holding that the trial court did not err in excluding the testimony of Officer Manning concerning what Whitfield told him. The testimony was offered for impeachment and as res gestae. We held we could not say the trial court abused his discretion in holding it not to be res gestae. It was, therefore, admissible as an admission only against the defendant Whitfield. It was offered generally and not just against Whitfield. Appellant insists that where testimony is, admissible against one party and not others it is error to exclude the testimony and the burden is on the objecting party to ask the court for any limiting offer. The cases cited by appellant are all cases where the trial court admitted testimony and it was held that in such case the objecting party must ask for a limiting instruction. The reason is that it was admissible against some of the parties and the burden is not on the court to ferret out who it is not admissible against. However, if the court has excluded the testimony, the rule is the same, that is, the burden is not on the court to examine the general offer and determine who it is admissible against and who it is not admissible against. That burden is on the offeror to make the proper specific offer. In addition to the authorities previously cited, see Panhandle & S. F. Ry. Co. v. Cowan, Tex.Civ.App., 243 S.W. 912 (C.C.A.) ; Sullivan v. Fant, Tex.Civ.App., 160 S.W. 612 (C.C.A.) ; Magee v. Paul, Tex. Civ.App., 159 S.W. 325 (C.C.A.).

Appellant points out that we erroneously stated no effort was made to get Officer Manning back to the stand after Whitfield had testified. He is correct to the extent that the statement of facts shows that appellant’s counsel at trial stated to the court he rested subj ect to putting Officer Manning on the stand. Then there appears this statement by the court: “The court is calling right now for procedure of this trial. Call your next witness.” The counsel then announced he rested. Nothing is shown of any effort to obtain the presence of Manning.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    Charles W. CREIGHTON et ux., Appellants, v. STATE of Texas, Appellee.
    No. 3774.
    Court of Civil Appeals of Texas. Eastland.
    March 29, 1963.
    Rehearing Denied April 26, 1963.
    George T. Thomas, Big Spring, for appellants.
    David Thomas, Asst. Atty. Gen., Wag-goner Carr, Atty. Gen., Austin, for appellee.
   GRISSOM, Chief Justice.

The State condemned for highway purposes 87.6 acres of land out of the Creigh-tons’ 1912 acre ranch, thereby cutting the remaining ranch into two parts. The east end of the ranch and the principal improvements are within the city of Big Spring and the west end is about 2½ miles outside the city limits. The Creightons have been operating a registered cattle ranch for many years on said tract with their home and nearly all improvements on the east end. The condemnation leaves 453 acres on the east side of the highway and the remainder on the west. The ranch is permanently watered by wells at the houses on the east end with only surface tanks on the west and during drouths the cattle have to come to the east end for water. A jury found that the condemnation caused no decrease in the value of the remainder of the ranch. The land owners have appealed.

Appellants’ 1st and 2nd points are in substance that the State having condemned the fee simple title to the land, except that oil, gas and sulphur thereunder may be taken without access to the surface, and the condemnation having severed one portion of the remainder from the other the court erred in allowing the State to introduce evidence that, although appellants have no easement for passage of cattle under the overpasses to be built on the highway, a permit will be granted by the highway commission, and, hence, damage to the remainder will be alleviated and further erred in admitting evidence that appellants’ ranch operations will not be severed until construction begins and during construction only to a limited extent because during construction appellants’ cattle will be permitted by the highway building contractor to cross over and through the right-of-way.

Expert witnesses for the State in effect agreed that the Creightons will suffer damage to the remainder by having it cut into two pieces. But, they contended that such damages would be offset by an increase in value caused by the highway being built on the condemned land. A witness was allowed to testify to the probable permissive use by the Creightons of space beneath bridges for passage of their cattle. Such evidence was designed to show a diminution, or non-existence, of damage to the remainder by stating that the ranch operations would not actually be severed and that the Creightons would be permitted to use the right-of-way. State witnesses testified that the Creightons could obtain a permit to fence a passageway under the bridges so that their cattle could pass from one side of the remainder to the opposite side of the new highway. They said a permit would be granted but that it could be refused and that, if granted, it could be revoked at will by the commission. Such testimony was objected to, among other reasons, because it was not relative to a right granted the Creightons but to a privilege which.could be refused or granted, and if granted, revoked at will. A witness was permitted to testify that he wrote a letter to a highway official inquiring whether access would be provided for passage of appellants’ cattle under the highway and that he replied that it would. Appellants say it is apparent that the State was permitted to show that while the Creightons will not have a legal right to use the land greater than that of the general public, nevertheless, the value of the remainder will not be reduced because the commission will grant them a permit for their cattle to pass freely under the bridges and, further, that severance of portions of the remaining ranch will not occur until construction begins at some time in the future and that during construction the cattle can pass from one severed portion of the remainder to the other because the highway construction contractor will be required to permit passage by virtue of a general provision, usually put in such contracts, to the effect that the contractor shall not disturb the public more than necessary. Appellants say such testimony constituted evidence of a hearsay promise by a resident engineer that appellants will be granted a permit for passage of their cattle through the condemned land; that such testimony was not only hearsay but was relative to a privilege, rather than a right, and improperly caused the jury to conclude that the remainder was not reduced in value by being cut into two pieces.

In Perkins v. State, Tex.Civ.App., 150 S.W.2d 157, (Writ Dis.), the State was 1 widening a road. It sought a part of the needed land from Perkins. On the part of Perkins’ land condemned there were trees and shrubs which Perkins considered of value to his remaining property. Part of the damage to his remaining land was claimed because trees and shrubs on the condemned land would be removed. A highway engineer was permitted to testify that the general and present policy of the commission was not to remove shrubs and trees unless hazardous to traffic; that, while it had the right to remove them without permission from the adjacent land owner, the commission’s policy was not to remove them. The court said that such testimony was elicited for consideration of the jury in measuring the compensation to be awarded and was designed to minimize the award of damages to the remainder as if the improvements were being left for appellants’ use and enjoyment. Introduction of such testimony was held to constitute reversible error. The court then quoted with approval from 20 C.J. 768, Sec. 227, the statement that ■“The probability that the appropriator will not exercise, or the fact that there is no present intention of exercising, to the full extent the rights acquired, should not be considered in reduction of the damages, where there is nothing to prevent a full exercise of such rights, since the presumption is that the appropriator will exercise his rights and use and enjoy the property taken to the full extent.” In 29 C.J.S. Eminent Domain at pages 1015 and 1016, § 155, the rule is stated in the same language with the additional statement that “the possibility that the condemnor may in the future construct crossings which will lessen the damages caused by dividing defendant’s property cannot be considered where there is no binding agreement or duty on the part of the condemnor to construct such crossings.” See also Strickland v. City of Friona, Tex.Civ.App., 294 S.W.2d 254, (Ref. N.R. E.); Hill v. State, Tex.Civ.App., 289 S.W. 2d 801; Coos Bay Logging Co. v. Barclay, 159 Or. 272, 79 P.2d 672; Old Colony R. Co. v. Miller, 125 Mass. 1, 28 Am.Rep. 194; St. Louis, K. & N. W. R. Co. v. St. Louis Union Stock Yards Co., 120 Mo. 541, 25 S.W. 399; Grand River Dam Authority v. Thompson, 187 Old. 129, 101 P.2d 843, 846 and Texas Power & Light Company v. Cole, 158 Tex. 495, 313 S.W.2d 524. Such evidence should not have been admitted. Such testimony was directly pertinent to the issues decisive of the question whether the value of the remainder was reduced by building a highway through the ranch and cutting it into two pieces. It was prejudicial and, we think, probably caused the rendition of an improper judgment.

Appellee contends that appellants were not injured because it alleged that, although the State was taking the fee simple title, the State had “designated said highway as a Controlled Access Highway and roads are to be built as a part of said highway whereby the right of ingress and egress to or from the remaining property of defendants abutting on said highway is not to be denied.” It says that the Perkins’ decision is not applicable because of such pleadings and the provisions of Section 2 of Article 6674w-l, Vernon’s Ann.Civ.St. that

“Along new Controlled Access State Highway locations, abutting property owners shall not be entitled to access to such new Controlled Access State Highway locations as a matter of right, and any denial of such access shall not be deemed as grounds for special or exemplary damages, except where access to such new Controlled Access State Highway shall have been specifically authorized by the State Highway Commission to or from particular lands abutting upon such new Controlled Access State Highway in connection with the purchase or condemnation of lands or property rights from such abutting owners to be used in such new Controlled Access State Highway location, and the State Highway Commission thereafter denies access to or from such particular abutting lands to such State Highway at the point where such lands actually abut upon such State Highway.”

Appellee says that although appellants have not been granted a private easement over the land condemned they do have all the rights to use it that are enjoyed by the “general public” and that appellants, and everyone else, will be limited to the points where they can enter on or exit from the expressway lanes. The State then says that from all of such testimony relevant to a permit to fence a passage under the bridges, and the like, it cannot be said that the jury was misled as to the nature and character of the permit and that, clearly, such is a revocable privilege that in no way enlarges appellants’ right of ingress and egress from the property that abuts the highway. We cannot agree with appellee’s interpretation of the Perkins’ case wherein contention is made that the vice found in the testimony in the Perkins’ case was grounded on the proposition that when and if the trees and shrubs were removed Perkins could not collect damages, while here, by virtue of said pleadings and statute, appellants are not in the same predicament as Perkins was because under the pleadings and the judgment appellants have the right to sue for damages if they are deprived of access to the highway.

We do not understand appellants to contend that they will be denied access to the highway. That is the thing quaranteed them by virtue of said statute and pleadings. Their complaint is that by the testimony mentioned, some of which was hearsay, the State was permitted to tell the jury that before, during and after construction of the highway, which it estimates will take three years, appellants will suffer no damages to the remainder because they will be permitted to fence under the bridges and, generally, so far as physically possible, they will be permitted to use the land condemned as it was used prior to the condemnation. Such testimony was not relative to a right granted appellants but to a privilege which might be granted, refused, or, if granted, revoked at the pleasure of appellee. There is nothing to prevent the State from fully exercising its rights over the condemned land except to give appellants access to the highway as the statute provides and, although permitting access to the new highway, depriving appellants of all privileges that their witnesses said or indicated would be granted them, which, if granted, indicated that the value of the remainder would not be decreased by taking the condemned strip out of appellants’ ranch. The presumption is that the State will exercise its rights and use and enjoy the property taken to the full legal extent. Such testimony was reasonably calculated to and probably did cause the jury to conclude, as it did, that the value of the remainder was not decreased by the taking of the condemned land although it had the effect of splitting the remainder of the ranch into two tracts separated by a highway. We agree with appellants’ contention and conclude that probable injury is shown.

Appellants’ points 3 and 4 assert error in the admission of evidence of the State’s witnesses of sales of land by Snyder to Acuff and by Pike to Koger because said tracts were not sufficiently comparable. As to some of the land, at least, a witness testified that the only comparable things about said tract and appellants’ land was that both were land and “fairly close in.” In fact, the witness indicated that as to some of the sales that he did not consider the land involved in the other sales as comparable to appellants’ land, but that they were the only ones he could find in that general vicinity. Evidence of the price at which such other tracts were sold was incompetent because they were not shown to be comparable to appellants’ land. State v. Willey, (Tex.Sup. Ct.), 360 S.W.2d 524; 22 Tex.Jur.2d 422, 425; Texas Law of Evidence, McCormick and Ray, p. 908, Sec. 699. According to some of the State’s own testimony, in material respects they were dissimilar. A State’p witness testified that because of the dis similarity he made adjustments in arriving at the value of appellants’ property.

We think the controlling issues were submitted in accord with the rules and decisions of-our Supreme Court. Texas R.C.P. 279; State v. Oakley, (Tex.Sup.Ct.), 356 S.W.2d 909, 915; State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194. We think appellants’ remaining points are without merit. They are overruled.

The judgment is reversed and the cause is remanded.


author: WILLIAMS, Justice.

text:
    ASSOCIATED SAWMILLS, INC., Appellant, v. L. A. PETERSON et al., Appellees.
    No. 16156.
    Court of Civil Appeals of Texas. Dallas.
    March 22, 1963.

      Palmer & Palmer and Walter N. Vernon, Dallas, for appellant.
    Gragg, Storey & Griffith, Dallas, for ap-pellees.
   WILLIAMS, Justice.

L. A. Peterson, W. A. Brannon and B. R. Brannon, brought this suit against Don Cameron Lumber Company, Interstate Lumber Company, Associated Sawmills, Inc., and James H. Harper, seeking to cancel and cause to be removed as a cloud on the title to real estate certain materialmen’s liens which had been filed by defendants individually against L. A. Peterson, as the result of delivery to and subsequent nonpayment by one Guy LaRue of various building materials for an apartment project being constructed by plaintiffs on the real estate in question. The defendants answered, denying that the liens should be cancelled, and, by counterclaim, sought to establish the validity of and to enforce said liens. Following a jury trial the court submitted the case upon special issues and based upon the answer of the jury to these issues the trial court rendered judgment for the plaintiffs and cross-defendants canceling the liens and removing the cloud from title. The defendant Associated Sawmills is the only defendant that appeals from such judgment.

At the outset we are confronted with a complaint by appellees concerning the validity of the statement of facts filed herein by appellant. Appellees contend that they had no opportunity to examine the statement of facts prior to its filing; that it was not approved by appellees’ counsel and therefore no valid statement of facts exists. Rule 404, Texas Rules of Civil Procedure provides that all motions relating to informalities in the matter of bringing a case into court shall be filed in this court within thirty days after filing of the transcript, otherwise, the objection shall be considered as waived. Appellees filed no such motion in this court, being content to raise the question for the first time in its brief filed long after the thirty day period referred to in Rule 404, T.R.C.P. Accordingly, any objection by appellees to the sufficiency of the statement of facts is waived. Looney v. Wing, Civ.App., 195 S.W.2d 557; Pacific Fire Ins. Co. v. Smith, 145 Tex. 482, 199 S.W.2d 486.

We have carefully considered this entire record in the light of appellant’s points of error, and finding no reversible error reflected therein, we affirm the judgment.

In its original brief appellant’s first point was: “The court erred in overruling appellant’s motion for judgment non ob-stante veredicto.” Appellees objected to our consideration of this point, contending same to be too general as well as multifarious. The point fails to comply with Rule 418, T. R.C.P. and may not be considered. Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909.

Appellant, realizing the inadequacy of its point, during oral argument before this court requested leave, pursuant to Rule 431, T.R.C.P., to withdraw its original point No. 1 and to substitute therefor eight substitute points of error. We granted permission to appellant to file its amended brief. Rule 431, T.R.C.P.; Minneapolis-Moline Co. v. Purser, Tex.Civ.App., 361 S.W.2d 239.

By its substituted points one through eight, inclusive, appellant says that the trial court erred in overruling appellant’s motion for judgment non obstante veredicto because (1) there was no evidence to support the jury’s findings to special issues Nos. 1, 2, 7 and 8, and (2) that the jury’s answers to special issues Nos. 1, 2, 7 and 8 are contrary to the great weight and preponderance of the evidence.

We have considered said substituted points Nos. 1 through 8, inclusive, and find that same are without merit and must be overruled. It must be noted that all of these substituted points purportedly relate to an order overruling the motion for judgment non obstante veredicto and, of necessity must constitute “no evidence” points of error. Rule 301, T.R.C.P. provides that the trial court may render judgment non obstante veredicto “if a directed verdict would have been proper.” A directed verdict is only proper where there is no evidence to support the submission of an issue to the jury. These substituted points, being “no evidence” only, preclude our consideration of the “contrary to the great weight and preponderance of the evidence” points. Also in our consideration of the “no evidence” points we weigh the question presented by considering only evidence favorable to the verdict and disregarding all other evidence. We not only give full credit to all evidence supporting such findings, but we indulge every legitimate conclusion in their favor. Todd v. Bruner, Tex.Civ.App., 349 S.W.2d 260; Shield Co. v. Cartwright, Tex.Civ.App., 172 S.W.2d 108; Dallas Railway & Terminal Co. v. Bosher, Tex.Civ.App., 278 S.W.2d 357; Pickens v. Harrison, 151 Tex. 562, 252 S.W. 2d 575. Governed by these rules we must inspect the record to determine if there is any evidence of probative force to justify the answers of the jury to Special Issues Nos. 1, 2, 7 and 8.

Issue No. 1 inquired whether Guy LaRue was an original contractor under the contract with L. A. Peterson, to which the jury answered “yes”. Issue No. 2 inquired what was the reasonable and necessary costs for plaintiffs to complete that part of the contract awarded to Guy LaRue after Guy La-Rue abandoned said project, to which the jury answered “$33,277.20.” By Issue No. 7 the court inquired whether L. A. Peterson, in dealing with Bill Brannon and Ben Bran-non in connection with the construction of the apartment house in question, was acting as an original contractor or as an owner, to which the jury answered “as an owner”. In Special Issue No. 8 the court asked if Guy LaRue was acting as a subcontractor under his contract with L. A. Peterson, to which the jury answered “no”.

A statement is necessary. L. A. Peterson, W. A. Brannon, and B. R. Brannon entered into an oral agreement to build an apartment house in Dallas, Texas. The land was selected and purchased, each owning one-third interest therein. The project was financed by the three by a loan of $90,000. Each agreed to contribute equally any additional sums that might be required to finish the job. Each man agreed that he would contribute his particular skill or reputation to the undertaking. Peterson testified that since he had more experience in the field of construction that he would generally watch that part of it. W. A. Bran-non was to be the contractor for interior design and furnishings and B. R. Brannon was to lend his financial strength or reputation. Peterson testified that the three men were to build the building jointly but that since he had a company in operation, known as “L. A. Peterson, General Contractor”, it was agreed that the forms, the checks, and all other necessary paper work would be handled through his office. He testified that the three men spent a lot of time getting prices together, checking material prices, and checking subcontract prices with various contractors. He said that three contractors wanted to build the apartment house for them and they finally decided they would let the contract for the basic building to Guy LaRue, d/b/a Jade Construction Company. Separate contracts were to be let for the air conditioning, electrical work, and other phases of the work. Peterson entered into a written contract with Guy LaRue for the construction of the apartment house in which the said LaRue was to furnish all labor, material and equipment to perform all work necessary to complete the building, except for a certain list of exclusions, for a total price of $39,-600. Peterson also entered into agreements, some oral and some written, with contractors for tile work, kitchen ranges, refrigerators, plumbing, heating and air conditioning, electrical fixtures, swimming pools, and utilities. Brannon entered into agreements with the landscaping company, with carpeting and floor covering companies, draperies and furnishings. During the progress of the work Peterson, on occasion, would, with LaRue, co-ordinate the work being done by the other contractors. Appellant supplied the materials to Guy LaRue for use in the project of a total value of $3,099.40. After the job had progressed about two months LaRue apparently suffered a mental and financial breakdown and Peterson, and the Brannons, took over the project to complete the work, all in accordance with the terms of the contract with LaRue. In order to complete the job in accordance with the plans and specifications, it was necessary for appellees to expend an additional sum of $33,277.20, being $15,069.25 in excess of the original contract price with LaRue. When appellant discovered that LaRue would probably not pay for the materials it had supplied, demand was made upon L. A. Peterson only, and eventually a materialmen’s lien was filed against the property. At the time of the default and abandonment by LaRue, ap-pellees had no knowledge or notice of any unpaid bills by any parties.

It is uncontradicted in this record that Peterson and the Brannons were the owners of the property in question. The deed to the property revealing this fact was in evidence. Peterson and the Brannons were sued by appellant as owners of the property. Appellee, L. A. Peters on, testified that when he entered into the contract with LaRue, being the principal contract for the construction of the apartment house, that he acted only in the capacity of an owner and that LaRue was the general contractor. Furthermore, he testified that had he been the general contractor that he would have necessarily had a superintendent on the job to run the job and see that the materials were delivered when they were needed, and that as general contractor he would have purchased and furnished all of the materials going into the work, such being the obligation of a general contractor.

When we consider this record and apply the rule of our Supreme Court announced above, we are unable to say that there was no evidence of probative force to either justify the submission of the disputed issues to the jury or the answers of the jury thereto. The evidence was obviously conflicting on each of the material issues, but the jury, hearing the testimony and evaluating the witnesses, and giving the weight thereto which they were authorized and required to do, answered the issues contrary to appellant’s contention. Finding, as we do, some evidence to support these answers we are unable to agree with appellant’s contention that there was “no evidence” and, accordingly, overrule appellant’s substituted points Nos. 1 through 8, inclusive.

By its second, third and fourth points in its original brief, appellant complains of the action of the trial court (1) in admitting into evidence appellees’ exhibit No. 1, being a contract between L. A. Peterson and Guy LaRue, because the instrument had been materially altered; (2) because, ap-pellees’ exhibit No. 1, was in conflict with defendant Don Cameron’s Exhibit No. 1, due to the alteration; and (3) in overruling appellant’s motion to strike the testimony of L. A. Peterson which was in conflict with appellant Don Cameron’s Exhibit No. 1, since such testimony amounted to an attempt to vary the terms of said written agreement.

Appellees’ Exhibit No. 1, the original of which appears in the record, is a printed form headed “Subcontract Agreement” and recites that “L. A. Peterson — General Contractor — owner, hereinafter called contractor, has agreed to perform and/or is engaged in the performance of such construction work at Marsalis & Eleventh Streets, Dallas, Texas * * * ” and also says “this agreement made the 16th day of November 1959, by and between L. A. Peterson, hereinafter called contractor, and Guy E. LaRue, hereinafter called subcontractor * * * ” The contract concludes with the signatures: Guy E. LaRue, d/b/a Jade Construction Company, subcontractor by Guy LaRue and L. A. Peterson, General Contractor — Owner, by L. A. Peterson.” This contract provides that Guy LaRue agreed to furnish all labor, material and equipment, and perform all work necessary to complete the apartment building (except for certain exclusions to be performed by others).

Don Cameron’s Exhibit No. 1, appears to be an identical copy of appellees’ Exhibit No. 1, with the exception that the word “owner” is omitted in Don Cameron’s Exhibit No. 1, following the name of L. A. Peterson as it appears in two places in ap-pellees’ Exhibit No. 1.

During the trial of the case L. A. Peterson identified both appellees’ Exhibit No. 1 and Don Cameron’s Exhibit No. 1, whereupon objection was made to plaintiff’s Exhibit No. 1 because “it has a material alteration on its face”. Thereupon counsel for appel-lees stated that they would be willing to use Don Cameron’s Exhibit No. 1, or either one of the instruments. The court overruled the objection to appellees’ Exhibit No. 1, and it appears that both Exhibits went to the jury. At one stage of the proceedings appellant’s counsel moved the court to instruct the jury to disregard the testimony of Mr. Peterson which conflicts with the Cameron Exhibit No. 1, whereupon the court said: “The testimony reveals that both of these contracts were signed at the same time; there is some variance in the contract, but I think it is up to the jury to resolve the conflict in that, so I will overrule the objection and you can have your exceptions.”

Appellant’s contention that the word “owner” typed in two places in appellees’ Exhibit No. 1, completely destroyed such contract, as being a fatal alteration, is not tenable. The only testimony concerning this word being added to the Exhibit was from L. A. Peterson who testified that he could not say how or when the word was typed on such instrument; that he knew he did not do it himself nor did anyone do it under his direction. The court did not submit any issue to the jury concerning any such alteration. It is significant to note that the instrument contains the name of L. A. Peterson in several places but in only two places, as above recited, is the word “owner” added. In Don Cameron’s Exhibit No. 1 the word “owner” does not appear at all.

The alteration to a written instrument, to render it void, must affect the liability of the parties, and must materially change the instrument, causing it to fail to reflect the meaning and intent of the parties to the agreement. Elder Mfg. Co. v. The Leader, Inc., Tex.Civ.App., 25 S.W.2d 274; Tyler v. Bauguss, Tex.Civ.App., 148 S.W.2d 912; Duvall v. Clark, Tex.Civ.App., 158 S.W.2d 565 and Oehler v. Scammel, Tex.Civ.App., 242 S.W.2d 403.

We are of the opinion that the liability of the parties under this contract is not affected by the unexplained addition of the word “owner” following Mr. Peterson’s name in two places on appellees’ Exhibit No. 1. Appellant is in no position to contend that L. A. Peterson was not one of the owners of the property in question. They sued L. A. Peterson as an owner and sought to foreclose a lien on the interest which he owns in said property. L. A. Peterson was the only one of the three owners ever served with any notice of any kind prior to the filing of such affidavit in support of the materialmen’s lien.. This being true it cannot be said that the addition of the word “owner” constituted a material alteration to the instrument in question. Furthermore, Don Cameron’s Exhibit No. 1, admitted freely by appellees was before the jury, and as stated by the court in his remark, it was for the jury to resolve any differences between the two instruments. This the jury did in its findings.

Moreover, an alteration of an instrument which is merely “descripto personae” is not a material alteration. 3 C.J.S. Alteration of Instruments § 30, p. 939.

Finally, appellant is not a party to this contract, nor is it claiming thereunder, and therefore it is difficult to understand how appellant could be affected by such alleged alteration. 3 C.J.S. Alteration of Instruments § 17, p. 920.

Even if it could be said that the court committed error in admitting both instruments into evidence before the jury, under the circumstances here related, we cannot say that such error was such as to probably result in the rendition of an improper verdict in this case. Rule 434, T.R.C.P. Appellant’s original points two, three and four are overruled.

During oral argument before this Court appellant’s counsel admitted that its original points five, six and seven were fatally defective and requested us to not consider same.

The judgment of the trial court is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    CITY OF GROVES et al., Appellants, v. PORT ARTHUR INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 6331.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 28, 1963.
    Rehearing Denied March 27, 1963.

      Black & Provost, Port Arthur, for appellants.
    Fuller & Fuller, Port Arthur, for ap-pellee.
   HIGHTOWER, Chief Justice.

The sole question presented by this lawsuit is the applicability of building regulations and ordinances of a Home Rule city to building construction of an independent school district. From a declaratory judgment and injunction of the district court adverse to it on the question, City of Groves has appealed. See Port Arthur Independent School District et al. v. Gary et al., Tex.Civ. App., 364 S.W.2d 446, for detailed facts.

It is elementary that City and School District are, each, governmental agencies of the State, and that the Legislature in its plenary power may delegate to either, to the exclusion of the other, the authority to supervise and control the construction of public schools.

School District contends that it is not amenable to the police power of City in the latter’s effort to exact a building permit and to enforce its ordinances regarding inspection as construction progresses, by reason of Art. 7, Sec. 1, of our Constitution, Vernon’s Ann.St., to-wit:

“A general diffusion of knowledge being essential to preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”

Texas Constitution. Art. 7, Sec. 1.

And it also relies upon Art. 2763a, Vernon’s Ann.Civ.St., which refers to independent school districts created by special laws, the pertinent part of which follows:

“Sec. 2. The Board of Trustees * * * shall thereafter maintain and control the public free schools within said district to the exclusion of every other authority, except in so far as the State Superintendent of Public Instruction and the State Board of Education may be vested with supervisory authority to inspect said Board * *

On the other hand, it is City’s position that Art. 1175, Sec. 34, V.A.C.S., empowers it, in the exercise of its police power, to enforce its ordinances against School District. Sec. 34 of this article reads:

“To enforce all ordinances necessary to protect health, life and property, and to prevent and summarily abate and remove all nuisances and to preserve and enforce the good government, order and security of the city and its inhabitants.”

A seemingly clear expression of legislative intent to be found on the subject is the enactment of Art. 2898-1 by our Legislature in 1945 whereby it sought to create a State Board of School Safety Supervision “ * * * to prevent the unnecessary loss of life and destruction of property due to failure to observe safety practices, rules and procedures in the architectural design of public buildings and schools * * This Act prescribed rigid rules, regulations and orders setting up safety standards to be followed in the construction, operation and use of public school buildings, to promote safety of school children and school occupants. It is noteworthy that Sec. 7 of said Act expressly provided that the same would not “authorize the construction of any building, or alteration, change or repair thereof without first obtaining such permit or permits as may be required by a valid local ordinance or regulation.” Although this article was subsequently repealed as being unconstitutional by reason of a population bracket therein contained, we think it indicative of a Legislative intent that the construction of public schools, in the absence of such a specific regulatory law as Art. 2898-1, should conform to reasonable police powers of a Home Rule city wherein they are located.

There is a paucity of out-of-state decisions on this subject and none exist in Texas. Absent Legislative directives positively providing for the safety of the occupants of our school buildings and those in the near vicinity thereof, we are constrained, by reasons of sound public policy, to follow the holding of the Supreme Court of Missouri in Kansas City v. School Dist. of Kansas City, 356 Mo. 364, 201 S.W.2d 930, wherein the precise question was decided in favor of the police power vested in Kansas City. The constitutional and statutory provisions of the State of Missouri are very similar to those of ours which have been quoted here-inabove. It was said in the Kansas City case, 201 S.W.2d p. 932:

“Since the State through its instrumentality, School District, has constructed public school buildings in the thickly populated areas of Kansas City the State must contemplate there is reposed in itself, in School District, or in City the power and the responsibility of taking measures to protect the people and the property of the people of Kansas City from conflagrations, explosions, smoke nuisances, noxious gases, and casualties which might be caused or occasioned by the facilities of the public school buildings. Now, if City’s power to regulate and supervise School District’s facilities in the respects herein involved is recognized, City, it seems, should have the right to collect such fees as are reasonable and incidental to and in reimbursement for the necessary expense of the regulatory inspections, inasmuch as the inspection of School District’s facilities by City is made necessary in the full exercise of City’s police power by the location of School District’s school buildings within the corporate limits of the municipality of Kansas City. Still assuming City has the power to regulate and inspect School District’s facilities in the respects herein involved, such a power must include the incidental power to exact inspection fees incidental to the inspections, a part of the regulation. If so, it must follow (and we hold) the fees are but an expense incidental to School District’s educational purpose, and a legitimate disbursement of the funds raised for running public schools, due to the circumstance School District’s public school buildings are located in a densely populated city. The territorial or corporate limits of School District and City are not coterminous. Part of the area of School District is outside the corporate limits of the municipality, but the fees, we assume, are for inspections of facilities of public school buildings School District has built within the corporate limits of the municipality.”
From 201 S.W.2d p. 933 we quote:
“The duty to provide for free public schools is vested by the Constitution in the Legislature. Section 1, Article XI, Constitution of Missouri, 1875; Section 1, Article IX, Constitution of Missouri, 1945. A school district is a ‘public corporation’ forming an integral part of the State and constituting that instrumentality of the State utilized by the State in discharging its constitutionally invoked governmental function of imparting knowledge to the State’s youth. School District of Oakland v. School District of Joplin, 340 Mo. 779, 102 S.W.2d 909, and cases therein cited. It has been said a school district is in no sense a municipal corporation with diversified powers, but is a quasi public corporation, ‘the arm and instrumentality of the state for one single and noble purpose, viz., to educate the children of the district.’ ”
And:
“No constitutional or statutory restriction of City’s police power as to its application to the regulation of the facilities of public school buildings has been observed by us; and, as we have seen, the State in the exercise of its own powers could have acted or could have expressly enjoined upon or delegated to School District’s board of full responsibility of taking particular measures, in connection with School District’s school buildings, otherwise within the scope of City’s police power. Board of Education v. St. Louis, supra [267 Mo. 356, 184 S.W. 975], Since the State itself has taken no precautionary measures, and City has been vested with the regulatory and supervisory responsibilities of the exercise of the police power, and School District (having no police power) has not been expressly and specifically given full duty to attend to these responsibilities, we think the Legislature is content in the thought the measures to be taken are within the police power vested in City. State ex rel. Audrain County v. City of Mexico, supra, [355 Mo. 612, 197 S.W.2d 301]; Kansas City v. Fee, 174 Mo.App. 501, 160 S.W. 537; Pasadena School District v. City of Pasadena, 166 Cal. 7, 134 P. 985, 47 L.R.A.,N.S., 892, Ann. Cas.1915B, 1039; Cook County v. Chicago, 311 Ill. 234, 142 N.E. 512, 31 A.L. R. 442. It could be reasonably urged the Legislature is wise in so singly reposing such grave responsibilities in City, in view of the technical experience and advice City’s officials and inspectors must have acquired in preparing for and in performing their important duties in connection with the prescribed regulations and regulatory inspections of the facilities of the many buildings of Kansas City. It would also seem reasonable to say that School District enjoys a fine advantage to itself by having the technical and experienced supervision of City’s inspectors by which the lives and health of students, teachers and other employees of the schools and School District’s property may be the better protected, and with no more disadvantage than the payment of a reasonable inspection fee.” See, also, Tex.Atty. Gen.Opp., W.W. — 218, 1957, and Cook County v. Chicago, 311 Ill. 234, 142 N.E. 512, 31 A.L.R. 442.

School District relies heavily upon the California Supreme Court decision of Hall v. City of Taft, 47 Cal.2d 177, 302 P.2d 574 (1956), which decision is also precisely in point. That decision was against the City of Taft in respect to the question before us, partly on the basis that Constitutional provisions of California giving any city power to enforce within its limits all local, police, sanitary and other regulations not in conflict with general laws, does not confer upon such cities power to regulate construction of public school buildings. The remainder of said decision was then based upon what we think was very sound principles. It pointed out that there existed in the State of California an “Education Code” by reason of which the construction of school buildings by school districts were not subject to the building regulations of a municipal corporation in which the building is constructed, by reason of the State having completely preempted and occupied the fields by general laws. It will be observed that this California Education Code is in a great many respects identical with the safety regulations sought to be provided for by our Legislature when it first enacted Art. 2898-1, supra, creating the State Board of Schools Safety Supervision. The other decisions upon which School District relies are City of Milwaukee v. McGregor, 140 Wis. 35, 121 N.W. 642; Salt Lake City v. Board of Education, 52 Utah 540, 175 P. 654, and Kentucky Inst, for Education of Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402, 8 L.R.A..N.S., 553, are similarly distinguishable.

We hold that School District must comply with the ordinances of the City of Groves as they respect the obtaining of building permits, payment of building permit fees and inspection by the City or its agents in the construction of school buildings within the limits of said city.

The judgment and orders of the trial court are therefore reversed and rendered in accordance with this opinion.

Reversed and rendered.

      . Port Arthur Independent Sc. Dist. reorganized by special law, H.B. 684.


text:
    Alton F. GIPS et ux., Appellants, v. RED ROBIN CORPORATION et al., Appellees.
    No. 14055.
    Court of Civil Appeals of Texas. Houston.
    March 21, 1963.
    Rehearing Denied April 18, 1963.

      Herman D. Voorhees, Fred R. Harmon, Houston, for appellants.
    Kucera, Lay & Lightfoot, Bennett Lay, Houston, for appellees.
   BELL, Chief Justice.

Appellants sued Red Robin Corporation, John F. Donnelly and Robert L. Robinson, to recover the cash deposit they had made as earnest money and as part of the purchase price, for the purchase of the Gulf Wind Motel from W. A. Patton and wife. On trial to the court without a jury, the court sustained appellees’ motion for judgment made at the end of appellants’ testimony.

On August 28, 1959, a contract was made between the Pattons and appellants. The Red Robin Corporation was the real estate representative of the sellers acting through Mr. Robinson. A form “Contract of Sale and Receipt of Earnest Money” was used. It provided that the Sellers agreed to sell and convey to the Purchasers the described property. The purchase price was to be $77,500.00. $3,000.00 was paid by appellants as earnest money, which was to be applied on the purchase price. After the $3,000.00 cash was applied to the purchase price a balance of $74,500.00 would be owed. The contract provided that Sellers would execute a “contract for deed” until a first lien held by Gibraltar Savings and Building Association in the approximate amount of $10,800.-00 was paid. When this was paid off at the rate of $276.00 per month, Sellers were to execute a general warranty deed to Purchasers and furnish a “Guaranteed Title Policy.”

It is provided that because of the small down payment, the Purchasers would furnish additional security in an amount not less than $10,000.00, which shall be properties on which Purchasers hold a second mortgage or contract for deed. The properties were to be in the Bellaire area. A list of the properties was to be made on a separate sheet.

It also appears that there was a second lien held by Mr. and Mrs. H. L. Botts in the approximate amount of $39,000.00 payable at the rate of $249.00 per month except that when the Gibraltar lien was paid the installments to Botts would increase to $400.00 per month. The third lien in the amount of $24,700.00 would be paid to Sellers at the rate of $250.00 per month. It was provided that when the lien to Gibraltar had been discharged, appellants would execute a note and deed of trust to the Botts.

The above provisions were typewritten on the form contract. There then appears this provision partially typed and partially printed: “Seller agrees to furnish Contract for Deed to said property, which shall be conveyed free and clear of any and all encumbrances except those named herein.” The term “Contract for Deed” was typewritten. The rest of the sentence was printed. There follows a paragraph in the printed form providing that if any objections to title are made, then Seller shall have a reasonable time to cure said objections to show good and marketable title. Further it provides in the event of failure to show good and marketable title, Purchaser may upon cancellation and return of the contract obtain a return of the cash deposit, or Purchaser may obtain specific performance. Another part of the printed form provides that should the Purchaser fail to consummate the contract as specified for any reason, except title defects, Seller shall have the right to retain said cash deposit as liquidated damages, and shall pay the agent therefrom the usual commission, or Seller may have specific performance.

Following the above is a typewritten provision as follows: “Closing shall be as soon as the papers can be drawn and executed which shall be not more than 30 days.” Too, there is a provision for payment of a 6% commission to Red Robin Corporation.

By their second amended original petition appellants allege the making of the contract and the substance of it. They then allege that the Pattons, as Sellers, did not have record title but were merely parties to a “Contract for Deed” wherein H. L. Botts et ux. were Sellers and W. A. Patton et ux. were Buyers and that such contract contained this “Covenant”: “Buyer shall not sell, assign, or transfer this contract or any interest in said property, without the written consent of Seller.” Appellants then alleged this was concealed from them and they would not have deposited the $3,000.00 except for their reliance on appellees’ implied assurance that the Pattons could deliver a marketable title to said property. Then the allegation is made that appellees failed and refused to obtain the written consent of the Botts to the contract between appellants and the Pattons and therefore appellants received nothing for the $3,000.00, that is, no consideration passed from appellees to appellants.

Then there is the allegation that appellees did not advise appellants in writing that they should have an abstract covering the property examined by an attorney of their choice, or that a title policy should be obtained. This is required by Article 6573a, Sec. 28, Vernon’s Ann.Tex.Civ.St. Appellants then allege they have also been damaged to the extent of $2,000.00 by appellees’ unlawful retention of the $3,000.00, and then pray for recovery of the $3,000.00 earnest money and $2,000.00 damages.

Appellees filed a general denial.

The contract between the Pattons and appellants was introduced. Also the contract between the Botts and the Pattons was introduced. It was an ordinary contract between the owner of property and the purchaser under which the Seller agrees to sell and convey and the Buyer agrees to purchase certain real estate. It is not necessary to notice its terms except it provides that when the note to Gibraltar Savings and Building Association has been paid, the Botts will execute a deed to the Pattons and will furnish a “Guaranty of Title” and the Pattons will increase their payments to the Botts to $400.00 per month. The contract contains the non-assignment provision above quoted.

We need only give the substance of the testimony. Mr. Gips signed the sales contract and gave his check for $3,000.00 to Mr. Donnelly. He didn’t remember that he ever demanded a title policy from anyone but he wanted some kind of policy that would guarantee the title. He knew the Pattons were purchasing under a contract because he had talked to Mr. Patton several times after the contract was signed. The contract was signed at the Motel. He saw the Pattons sign. No “Contract for Deed” was ever presented him for execution. Mr. Donnelly told him to get an attorney to examine the title. Mr. Patton told him, Mr. Botts had to give his approval to the contract. His main objection was to putting up the collateral where he could not get it released in case of refinancing or for some other reason. Mr. Gips’ attorney, on September 28, 1959, thirty one days after the contract of sale was signed, wrote Mr. Patton’s attorney stating the income of the Motel had been greatly overstated and that Mr. Gips wanted to repudiate the contract because of such fraud. However, the letter also stated Mr. Gips would go ahead with the contract if the requirement for the collateral security was eliminated and if the payments to the Pattons were reduced by $100.00 per month. Nothing was stated in the letter about title or the failure of Mr. Botts to deliver a contract. Mr. Gips had demanded of appellees the return of the cash deposit, but it had never been returned. On December 2, 1959, Mr. Gips’ attorney wrote Red Robin Corporation formally demanding the return of the money and stating that in order to protect Mr. Gips the sales contract was being filed for record, but it would be released on the return of the money. Too, the letter stated that Mr. Botts had to give his permission to the sale and he refused to do so. The contract between Mr. Botts and the Pattons was not of record, according to the letter. Mr. Gips did not remember whether he ever put up the collateral, but he gave a list of the collateral. Mr. Botts did not give his consent to the sale to appellants. He says he knew nothing about it until it was all over with. He stated he thought he told Mr. Robinson or Mr. Donnelly he would not consent to the sale. He knew he wouldn’t give his consent. The property was later sold to a Mr. Palmer and Mr. Botts gave his consent. The money that was deposited by Gips was deposited in the account of Red Robin Corporation. None of it was ever given to the Pattons. Mr. Donnelly had never talked to Mr. Botts, according to his testimony. Mr. Robinson was the one handling the contract. Mr. Robinson, in response to questions of appellants’ counsel, testified Mr. Patton told him Mr. Gips had backed out of the contract and Mr. Robinson should go ahead and keep' the cash deposit. Mr. Robinson advised Mr. Gips to get the contract fixed up and get things going. Mr. Robinson said he advised Mr. Botts of the contract between the Pat-tons and appellants which called for a contract for deed. He asked Mr. Botts for the balance due on various liens. He read the contract between him and the Pattons and asked if there were any other instruments. Mr. Botts did not indicate he would not give his consent to the sale to appellants. Mr. Botts gave him the balances on the various liens as shown in the sales contract between Mr. Patton and appellants. Mr. Patton recognized Mr. Robinson’s right to the commission to be paid out of the cash deposit as provided in the contract. Later Mr. Patton asked for one-half of it but did not get it. Neither Mr. Gips nor his representative ever asked for a title policy. Mr. Markham drew the contract and Mr. Gips, through his attorney, refused to sign.

Appellants’ theory of recovery is that the Pattons were never in a position to convey anything to them because they held only under a contract to purchase which forbids an assignment of such contract or any interest in the property, so there was complete failure of consideration. They further say ap-pellees and not Patton are liable to them because they were trustees in holding the earnest money and they need not sue Patton, the seller.

Appellees contend that appellants breached the contract because they were unwilling to put up the collateral security called for by the contract of sale when such contract provides that if the Purchaser failed to perform for any reason except for defects in title the earnest money shall be forfeited and out of said money the agent shall be paid his commission. They further contend appellants were under a duty to inform ap-pellees or the Seller of any defects in title so as to give Seller an opportunity to cure the defect, and appellees never made any complaint as to title. Too, they say there was no privity of contract between them and appellants and that appellants should proceed against Mr. Patton.

The trial court made no findings of fact so we must presume he found every fact finding support in the evidence in a manner so as to support the judgment.

The contract of sale calls for the execution within thirty days after August 28, 1959, of what is spoken of as a “Contract for Deed.” We assume by such is meant an agreement by appellants to purchase and of the Pattons to sell the property with an agreement that on payment of the debt to Gibraltar the Pattons would execute a deed conveying the property with appellants assuming the then existing indebtedness. In the interim we suppose appellees were to satisfy themselves that the Pattons, except for the liens above mentioned, had a marketable title. There is no provision in the contract of sale for the Pattons to furnish an abstract of title or any title insurance until the debt to the Gibraltar should be paid. However, that marketable title is contemplated before the execution of the contract for deed is evidenced by the provision authorizing the purchaser to cancel the sales contract if there was failure to furnish good and marketable title. Also there is the provision that if title objections were made the Pattons would have a reasonable time to cure the defects.

We are unable to agree with appellants, however, that the Pattons could not convey them anything because of the provision in the contract of sale between the Pattons and the Botts that the Pattons could not assign the contract or any interest in the property without the written consent of the Botts. We are of the view that in spite of this provision the Pattons could transfer their equitable interest in the property. While such would not be effective to relieve the Pattons of any duty they owed the Botts, it would transfer their equitable interest in the property. The Pattons would still be fully bound to perform their contract and make payments as provided in their contract with the Botts. The only ultimate right the Botts had was to payment of the purchase price. While the Botts might not be required at any time to execute a deed directly to appellants, they could be required to execute a deed to the Pattons as provided in the contract between them. Of course by transferring their equitable interest the Pattons would be violating their covenant. However, there is no provision in the contract between the Pattons and the Botts that gives the Botts a right to terminate the sales contract for breach of this covenant. There is a provision for termination for failure to perform other obligations. Forfeitures are not favored and will not be implied. The Botts would be left to sue for damages for breach of the covenant.

We have been cited to no Texas case and, in our search, have found none. We have, however, found authorities from other jurisdictions supporting this position. Hull v. Hostettler et al., 224 Mich. 365, 194 N.W. 996; Cutler v. Lovinger et al., 212 Mich. 272, 180 N.W. 462; Johnston v. Landucci, 21 Cal.2d 63, 130 P.2d 405, 148 A.L.R. 1355.

It may be that the absence of Botts’ consent would prevent the title from being a marketable one, since the appellants, as assignees, might be confronted with defenses by Botts that Botts would have against the Pattons, because the assignment could not affect Botts’ rights against Patton. It does not, however, present a failure of consideration.

The trial court has held appellants failed to perform their contract and thus not to be entitled to a return of the earnest money. We take it that the basis of the holding is that appellants never made any complaint of title but repudiated the contract because they did not want to put up the collateral security called for by the contract of sale and because the monthly payments were too high. There is no testimony showing any complaint about title until December 2, 1959, when the contract of sale was to have been performed by September 27. Appellants made no requirement of written consent though Mr. Gips knew that the consent was called for. The only complaint made by appellants was refusal to put up the collateral security and asking a reduction in monthly payments of $100.00. These complaints were in the letter dated September 28. We must presume the trial court found appellants to be under a duty to make objections to title. There is no express provision for this but we think the language of the contract clearly implies appellants shall do so. The contract provides in part “if any title objections are made.” Who would make them except appellants or their attorney? Then it provides that if title objections are made, “Seller or his agent shall have a reasonable time to cure said objections.” This shows an intent that the purchaser must make his objections to the sellers or their representatives.

Where a purchaser is obligated to make title objections, he must do so or he cannot complain of the absence of marketable title. He must communicate such to the seller or his representative so they may attempt to satisfy the objections. Lieber v. Nicholson et al., 206 S.W. 512 (Tex.Com. App.) ; Champion v. Taylor et ux., 229 S. W. 627 (Tex.Civ.App.), no writ hist. While Mr. Botts testified at the trial he would not give his consent and thought he told either Mr. Donnelly or Mr. Robinson, the court had a right to accept Mr. Robinson’s testimony that Mr. Botts, when he talked to him, never made any complaint of the sale.

The contract provides that if the purchaser fails to perform the contract for any reason except title defects, then the seller shall have the right to retain said cash deposit as liquidated damages and shall pay the agent therefrom his commission. The evidence is sufficient to show that appellants refused to perform the contract, not because of any defect in title, but because they did not want to put up the collateral security called for and because they wanted the monthly payments reduced $100.00 per month.

Appellants assert appellees were not in a position to rely upon appellants’ default but the Pattons must do so. There is testimony that Mr. Patton had authorized the appellees to keep the money as their commission. Too, in the light of the provision that from the cash deposit the agent should be paid his commission, appellees have such an interest in it as to be able to defend against Purchasers’ suit for its return by showing default on the part of the Purchasers.

We do not think Article 6573a, Sec. 28, is applicable because this is not a suit by appellees to recover the commission. Too, the evidence shows appellants were being represented in the transaction by an attorney.

Appellants say the judgment is contrary to Articles 3995 and 4004, V.A.T.S. They did not plead these statutes.

Finally, appellants complain that the trial court erred in not allowing them to prove damages which they suffered because of the refusal of appellees to pay the $3,000.00. They had alleged additional damages of $2,000.00. What the testimony would have been is not shown in the record and we cannot therefore appraise this complaint.

The judgment of the trial court is affirmed.