author: NORVELL, Justice.

text:
    CITY OF CORPUS CHRISTI et al. v. JONES et al.
    Ne. 10630.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 2, 1940.
    Rehearing Denied Nov. 6, 1940.

      Carr & King and J. P. Simpson, all of Corpus Christi, for appellants.
    Mobley, Roberts & Lockett and Boone, Henderson, Boone & Davis, all of Corpus Christi, for appellees.
   NORVELL, Justice.

This is an appeal from a judgment of the District Court of Nueces County wherein the City of Corpus Christi, its governing officials, servants and employees are perpetually enjoined and restrained -from enforcing, or attempting to enforce, a zoning ordinance for said City of Corpus Christi, which was adopted on August 27, 1937, as against appellees or their property.

Plaintiffs in the court below, appellees here, are: D. M. Jones, Frank M. Jones, A. D. Jones and A. G. Gill, who are partners and doing business under the firm name and style of Independent Ice Company.

Trial was to the court and, upon proper request, lengthy findings of fact and conclusions of law were prepared and filed in the case. The trial court held that said zoning ordinance was void in its entirety and also that the particular provisions affecting appellees’ property were invalid and unenforcible in their application to said property.

The record in this case is very lengthy and a seriatim discussion of the trial court’s findings of fact and the evidence relied upon to support the same would unduly lengthen this opinion and for that reason is impracticable.

The ordinance under attack here was adopted by the City of Corpus Christi on August 27, 1937, in pursuance of the provisions of Chapter 283 of the Acts of the 40th Legislature. This Act is codified as Articles 1011a to lOllj, Vernon’s Annotated Texas Civil Statutes, and is sometimes referred to as the “Zoning Enabling Act.” In the case of Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, this Act was fully discussed and held to be a valid constitutional exercise of legislative power. That case also held that the Zoning Ordinance of the City of Dallas was in general a valid constitutional exercise of the police power delegated to the governing body of the City of Dallas by the Zoning Enabling Act of the Legislature.

The Zoning Ordinance of the City of Corpus Christi involved here is patterned after the Zoning Ordinance of the City of Dallas, which was involved in the Lom-bardo case. The two ordinances, however, do differ as to certain particulars hereinafter mentioned.

On October 18, 1937, after the adoption of the Corpus Christi Zoning-Ordinance, appellees purchased a tract of land located at 507 South Staples Street in the City of Corpus Christi, within the boundaries of the Commercial District, as defined by the Zoning Ordinance. They secured a permit to erect a building thereon from the office of the City Engineer of Corpus Christi. This building was erected and machinery installed for the purpose of manufacturing ice. It is the intention of appellees also to erect a cold storage plant upon their property. Appellees were engaged in the business of manufacturing and selling ice in their plant on South Staples Street when the officials of Corpus Christi threatened to close the plant, contending it was being operated in violation of the Zoning Ordinance. Appellees thereupon filed this suit.

Appellees contend that the City of Corpus Christi is estopped from enforcing the provisions of the Zoning Ordinance with reference to their property as the City Engineer issued a permit for the erection of the building, and no city official informed appellees that the erection of an ice manufacturing plant would be violative of a zoning ordinance, although there was considerable newspaper publicity as to the proposed construction of the plant. This contention was overruled by the trial court and that holding must be sustained here.

A zoning ordinance, or use regulation, is for the purpose of promoting the health, safety, morals and the general welfare of the community. Such regulations represent an exercise of the police power by a municipality in its governmental capacity. The fact that a city official or employee fails in certain particulars to enforce the regulation cannot render it invalid, nor estop the City from asserting its validity. City of Amarillo v. Stapf, 129 Tex. 81, 101 S.W.2d 229. We are not here concerned' with a situation where a long-continued' failure to enforce a zoning ordinance has ! resulted in the development of a de facto ( industrial district in a restricted area, [ which would render a belated attempt at j enforcement ineffective and useless in pro- i moting the public health, safety, morals or i general welfare of the community.

Appellees also present the contention that the zoning ordinance of the City is void in its entirety because of a lack of public notice or publication as required by law.

Article 101 Id provides that “no such [zoning] regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days’ notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality.”

On July 23, 1937, there was published in the Corpus Christi Church Press and Weekly News a notice that a public hearing would be held by the City Council of the City of Corpus Christi on the 9th day of August, concerning the establishment of zoning districts and adopting regulations and restrictions therein. This notice was dated the 20th day of July, signed by the Mayor and City Secretary of the City. Immediately following this notice there was also published a copy of the proposed zoning ordinance. This ordinance makes reference to a map showing the respective areas within the limits of the City classified as to uses. This map did not appear as a part of the publication notice or of the ordinance.

Hearings were had before the City Council in pursuance of said notice, and as a result thereof certain minor changes were made in the terms of the proposed ordinance and boundaries of the use districts provided for therein. None of these changes affected the property afterwards purchased by appellees in any way. No further publication of notice was made prior to the enactment of the ordinance on August 27th. On September 3, 1937, the entire ordinance and map which was a part thereof were published in the Corpus Christi Press and Weekly News, the same paper that published the notice on August 9th, but it had eliminated the word “Church” from its name between the dates of the two publications.

Appellees contend that this newspaper was neither “an pfficial paper,” of the City “nor a paper of general circulation” in the municipality, and the trial court agreed with these contentions. As Article 101 Id provides that the notice presented therein may be published in either the official paper of the City or one of general circulation in the municipality, it is not necessary for us to determine whether or not the Corpus Christi Church Press and Weekly News was the “official paper” of the City at the time of the publication of the notice, on July 23, 1937, as in our opinion the evidence conclusively shows that such newspaper was on that date a paper of general circulation.

The only evidence introduced upon this point was the testimony of the editor, Frank B. Harrison, and copies of the paper, the issues of July 23 and September 3, 1937. Mr. Harrison testified that these two issues were representative of the usual contents of his paper; that it had a circulation of about 4000 in a city of about 45,000 population; that about 1200 copies were delivered to paid subscribers, and although it featured church and Corpus Christi news, it was not dedicated to any private enterprise. An inspection of the issues of the paper contained in the statement of facts indicates that although publicity was given to the activities of churches and religious organizations, the news coverage was not restricted to such activities. The paper contained news items of general interest, editorials and advertisements. It was a paper of “general circulation” as that term is used in Article 101 Id. Hurt v. Cooper, 63 Tex. 362; Meyer v. Opperman, 76 Tex. 105, 13 S.W. 174; Kerr v. Hitt, 75 Ill. 51, 53; Kellogg v. Carrico, 47 Mo. 157, 158; Hernandez v. Drake, 81 Ill. 34; Hull v. King, 38 Minn. 349, 37 N.W. 792; Hanscom v. Meyer, 60 Neb. 68, 82 N.W. 114, 48 L.R.A. 409, 83 Am.St.Rep. 507; Burak v. Ditson, 209 Iowa 926, 229 N.W. 227, 68 A.L.R. 538; Culclasure v. Consolidated Bonding & Mortgage Co., 94 Fla. 764, 114 So. 540; Baldwin v. Brown, 193 Cal. 345, 224 P. 462; In re Labor Journal, 190 Cal. 500, 213 P. 498; Lynn v. Allen, 145 Ind. 584, 44 N.E. 646, 33 L.R.A. 779, 57 Am.St.Rep. 223.

Appellees further contend that as certain minor changes were made in the ordinance recommended by the Zoning Commission prior to its final enactment by the City Council, on August 27, 1937, the Ordinance is invalid. These contentions are overruled. The Zoning Enabling Act provides for the appointment of a Zoning Commission, which shall make a final report to the legislative body of the City as to boundaries of proposed zoning districts and regulations relating thereto. (Article 101 If.) Before the recommendations of the Zoning Commission can be enacted into law, however, a public hearing- must be held in regard thereto, and fifteen days' notice of such hearing given by newspaper publication. (Article 101 Id.) One of the purposes of these public hearings is obviously to give property owners an opportunity to discuss or protest any particular regulation, restriction or boundary proposed by the Zoning Commission. After such hearing, the legislative body of the City necessarily has the power to make changes in the regulatory provisions rec ommended by the Zoning Commission. The statutory hearing as to such matters having been held, it is not necessary that another notice be given to render these changes effective. A hearing has been held in relation to a boundary, for instance, even though as a result of such hearing the suggested boundary line is modified or changed in some particular. We are here concerned with notice of a.hearing to consider the provisions of a comprehensive Zoning Ordinance recommended for adoption by the Zoning Commission and not with amendments to an ordinance previously enacted. It further appears that none of the minor changes made in the ordinance proposed by the Zoning Commission, after the statutory' hearing had been held, affected the property afterwards acquired by appellees in any'way and therefore appellees are in no position'' to " complain with reference thereto.

We also overrule appellees’ contention that the publication of the notice published on July 23, 1937, was ineffective because the zoning map was not published as a part thereof. Article lOlld requires only that a notice be given. It does not provide that the entire proposed ordinance or any map that might be a part thereof shall be published.

Appellees also contend that the Zoning Ordinance is unenforcible because it is penal in character and was not published in an “official paper” of the City after its passage, in accordance with the provisions of Article 1013, Vernon’s Annotated Texas Civil Statutes. The City of Corpus Christi was chartered by special act of the Legislature and this Act or Charter does not provide that penal ordinances shall be published before they can become operative. However, it is not necessary for us to decide whether Article 1013 applies to cities chartered other than by general law, as we are of the opinion that when the provisions of Article lOlld as to notice are complied with further publication is unnecessary. This Article is a part of the Zoning Enabling Act relating to a specific type of penal ordinance. The publication of the notice has for one of its purposes the giving of publicity of the existence or contemplated passage of the ordinance. This is the obvious purpose of Article 1013. The Zoning Enabling Act was passed in 1927, while Article 1013 is a part of the Acts of 1889, carried forward in the 1925 codification. In our opinion, it was the legislative intention that the specific provisions of Article lOlld should apply to zoning ordinances rather than the general provisions of Article 1013.

If we are mistaken in this, however, the record shows that the entire ordinance, including the zoning map, was published in the Corpus Christi Press and Weekly News (a weekly newspaper) on September 3, 1937.

The record further discloses that on August 27, 1937, the City Council of Corpus Christi passed the following motion: “Motion by Mireur, seconded by Watson, and carried — proposal of the Corpus Christi Church Press and Weekly News, Frank B. Harrison, publisher, to publish all ordinances, calls for election, etc., at 6 cents per line, designating said paper as the official publication for the City, was accepted subject to the resolution and contract to be drawn by the city attorney.”

It does not appear that a formal resolution or contract was drawn by the city attorney. The City did, however, actually use- Mr. Harrison’s paper for the publication of its ordinances and notices. The fact that the City Council proceeded informally with these publications, without a formal resolution or contract, did not prevent the paper’s being the “official paper” as that term is used in Article ■ 10Í.3. Neither did the fact that the City Council failed to formally direct the publication of the ordinance or map in the issue of September 3, 1937, render that publication ineffective. Article 1013 simply provides that “Every ordinance imposing any penalty, fine or forfeiture shall, after the passage thereof, be published in every issue of the official paper for ten days. If the official paper be published weekly, the publication shall be made in one issue thereof.” We hold that the publication of September 3, 1937, complied with the provisions of Article 1013. We are not here concerned with rights asserted under an informal or irregular municipal contract, but only with the effect and validity of an actual publication of an ordinance.

Appellees present the further -contention that, even though the Zoning Ordi-li nance be valid in its general aspects and; legally adopted by proper procedure, the i particular restriction forbidding the loca- ( tion of ice manufacturing and cold storage f plants in “Commercial Districts” is unen-i forcible and void as it is arbitrary, unrea- S sonable and discriminatory as to such plants ,, and appellees’ property. /

The Corpus Christi ordinance divides the City into six zones, or use districts, termed respectively: dwelling district, apartment district, retail district, commercial district, commercial camp trailer district and manufacturing district. The particular district involved here is the commercial district.

Sections 6, 7 and 8 of the Ordinance read as follows:

“Section 6. Commercial District. In a Commercial District ño building "or premises shall be used, and no building shall be erected or structurally altered which is arranged or designed to be used for other than one or more of the following uses:
“(1) A use permitted in a Dwelling District, an Apartment District or a Retail District.
“(2) Commercial Amusement Park, Skating Rink, Dance Hall.
“(3) Wholesale Sales Office, Sample Room, Tourist Camp, Public Garage, Mortuary, Pressing, Dry Cleaning, Laundry or Dyeing Establishment, Bottling Works, Ice Cream Manufacturers, Creamery, Bakery.
“(4) Penal or Correctional Institution, Institution for the care of Tubercular, Liquor, Narcotic, Insane or Feeble Minded Patients.
“(5) Electro-plating, Galvanizing.
“(6) Job Printing, Newspaper printing.
“(7) Private Stable.
“(8) Oil compounding or barrelling, Street car barn, Freight terminal, Loading or storage tracks, Storage in bulk of, or warehouse for, such material as asphalt, brick, cement, contractor’s equipment, clothing, coal, cotton, dry goods, drugs, .films, furniture, feed fertilizer, grain, gasoline, gravel, glass, grease, groceries, hay, ice, hardware, iron, lead, lime, lumber, machinery, millinery, oil, paint, plaster, pipe, roofing, rope, rubber, sand, shell and shell pits, shop supplies, stone, tar, tarred or creosoted products, terra cotta, timber, tobacco, turpentine, varnish, wood or wool, provided this shall not include the storage in bulk of junk or second-hand materials.
“(9) Manufacture of any kind not listed in section 7, paragraphs 2 to 11, inclusive, provided mechanical power not in excess of 5 H. P. is employed in the operation of any one machine, and further provided that such use is not noxious or of- ' fensive by reason of the emission of smoke, dust, odor, gas, fumes, noise, or vibration.
“(10) Railway Passenger Station or Right of Way, not including railway yards.
“(11) Accessory buildings, including one private garage as an accessory use when located not less than 60 feet back from the front lot line, not less than 4 feet back from the rear lot line, and not less than 20 feet back from any side street line, nor less than 4 feet back from any side lot line not on a side street.”
“Section 7. Manufacturing District. In a Manufacturing District no building or premises shall be used, and no building shall be erected or structurally altered which is arranged or designed to be used, for other than one or more of the following uses
“(1) A use permitted in a Dwelling District, an Apartment District, a Retail District or a Commercial District.
“(2) Textile Manufacture.
“(3) Ice Manufacture, Cold Storage Plant, Carpet Cleaning.
“(4) Storage or packing of Live Poultry, Fish or Poultry Dressing, or Poultry Killing.
“(5) Canning or preserving Factory, Cotton Ginning and Baling, Cotton Seed Products Manufacture, Flour Milling, Grain Elevator, Cotton Compress.
“(6) Blacksmith, Horseshoeing or Wagon Shop, Public Stable, Veterinary Hospital.
“(7) Disinfectant or Insecticide Manufacture, Tar Roofing or Tar Waterproofing Manufacture, Wood Distillation including Manufacture of Charcoal, Tar, Turpentine and other By-products, Dyes Manufacture, Printing Ink Manufacture.
“(8) Coal Hoist, Coal Pocket or Coal Car Trestle.
“(9) Scrap Iron or Junk Storage, Scrap Paper or Rag Storage or Baling, Automobile Wrecking Yard.
“(10) Central Station Lighting or Power Plant, Railroad Roundhouse or Shop.
“(11) Stone Cutting, Stone Quarry, Rock Crushing.
“(12) Boiler Making Structural Iron or Pipe Works.
“(13) Any manufacturing or Industrial Process not heretofore listed, excluding, however, such Process, as may emit obnoxious dust, fumes, odor or gas.” ,

Under the ordinance a conforming use is such use o.f property as is permitted by the classification applicable to each particular zone or area provided for by the ordinance.

“Section 8. Non-Conforming Uses:
“(1) Any use of property existing at the time of the passage of this Ordinance which does not conform to the regulations prescribed in the preceding sections of this Ordinance shall be deemed a Non-Conforming Use.
“(2) A Non-Conforming Use may be continued subject to such regulations as to the maintenance of premises and conditions of operation as may in the judgment of the Board of Adjustment be reasonably required for the protection of adjacent property.
“(3) A Non-Conforming Use shall not be extended, but the extension of a use to any portion of a building which position was arranged or designed for such NonConforming Use at the time of the passage of this Ordinance shall not be deemed the extension of a Non-Conforming Use.
“(4) A Non-Conforming Use shall not be changed unless changed to a conforming use. A Non-Conforming Use if changed to a conforming use may not thereafter be changed back to any NonConforming Use.
“(5) A cemetery, sewage disposal or treatment plant, public utility plant, hospital, sanitarium, correctional institution or municipal or state building or institution existing, in any use district at the time of the passage of this Ordinance, or any , Manufacturing District use so existing in a commercial district, shall be deemed a conforming use upon the plot devoted to j such use at the time of the passage of this j Ordinance. ¡
“(6) A Non-Conforming Use, destroyed by fire or other calamity may be rebuilt, provided the area and height of the building is not increased.”

The use classification of the Corpus Christi Ordinance differs from the Dallas Ordinance (involved in the Lombardo case) in that only one manufacturing district is provided for by the Corpus Christi Ordinance, while the Dallas Ordinance contains provisions for first and second manufacturing districts. Under the Dallas Ordinance the operation of an ice manufacture and cold storage plant is permitted in a commercial district, while under the Corpus Christi Ordinance the operation of such industry is restricted to the manufacturing district.

Appellees contend that the Corpus Christi Ordinance as applied to their property is unreasonable and discriminatory and therefore unenforcible because:

1. The ordinance designates the block occupied by the Central Power & Light Company a public utility which also manufactures and sells ice, as a “manufacturing district.” The block is surrounded by a “commercial District” and the effect of such designation is to give to said Centra] Power and Light Company an unreasonable advantage over other ice manufacturers in the City, in that the manufacturing of ice being permissive in a manufacturing district the plant could be enlarged without limitation, insofar as the ordinance was concerned, while other ice plants in existence at the time of the passage of the ordinance were situated either in commercial or apartment districts and therefore constituted non-conforming uses.

2. The particular locality in which appel-lees’ plant is located is devoted to semi-industrial uses such as repair and storage garages, welding and blacksmith shops, junk yards, lumber yards and furniture repair shops, and the restriction against ice manufacturing in such location bears no reasonable relationship to the purposes sought to be realized by the Zoning Enabling Act or the ordinance passed thereunder, i. e., the promotion of the public health, safety, morals, and general welfare.

3. Ice cream manufacturing plants and creameries using the same or similar refrigerants and processes as ice manufacturing plants are permissive uses in Commercial Districts, while ice manufacturing plants are excluded.

4. It is necessary that an ice manufacturing plant in order to be successful financially, be located where it is accessible to the public. Appellees’ business was manufacturing ice and selling it wholesale and retail at the company’s platform, and such a business can not be successfully operated in the manufacturing district designated by the ordinance.

Copies of the Zoning Map in the record show that the larger part of the commercial district is located to the north of appel-lees’ plant. It is irregular in shape-and a large part thereof extends north and south about twenty-three city blocks along the bay front of Corpus Christi Bay. The District is about thirteen blocks wide at a point eight blocks north of appellees’ plant.

Appellees’ plant is approximately four blocks south of the Texas Mexican Railway Company’s track. Immediately north of the track is a manufacturing district about seven blocks long and two blocks wide. To the south is a commercial district about two and one-half blocks wide, paralleling the track. South Staples Street roughly parallels the bay front and is situated about seven blocks inland at the point where appellees’ plant is located.

The Commercial District, as outlined on the map, runs south along Staples Street from the south boundary of the Commercial District, situated south of the Tex-Mex tracks to a point about seven blocks south of appellees’ plant. This zone takes in one-half of each of the blocks fronting on Staples Street. To the east of this zone toward the bay is an apartment district, while to the west there are situated apartment and dwelling districts.

The block in which appellees’ plant is 5 located contains a filling station, two resi-j dences, a cleaning and pressing establish-; ment, a bakery, a radio shop, a confection ary shop and a cash and carry grocery store. In this block are also located two ! non-conforming uses, a small welding shop t .and a small blacksmith shop.

Across the street is located a repair ■garage, two private residences and a small lumber yard. South Staples Street, north ■of appellees’ plant to the Texas-Mexican Railroad tracks, is occupied principally by •retail establishments and a few non-conforming uses.

The property of the Central Power & Light Company is located six blocks north and seven blocks east of appellees’ plant. At the time of the passage of the ordinance, there were four other ice plants located in Corpus Christi. Three of these, including one used to supply a hotel, are by the ordinance made non-conforming uses in the commercial district. The fourth is a non-conforming use in an apartment district. The nearest of these plants is approximately five blocks from appellees’ location.

As above pointed out, the zoning ordinance permitted creameries and ice cream manufacturing companies to operate in ■Commercial Districts and the record shows that at least three of such plants are in .actual operation.

It is well settled in this State as well as the other States of the Union, that the prohibition of certain industries or businesses in particular localities by means of a comprehensive zoning ordinance, carrying into effect a program of city planning, is a legitimate exercise of the police power.

In the well considered case of Women’s Kansas City St. Andrew Society v. Kansas City, Missouri, 58 F.2d 593, 598, Mr. Justice Kenyon, speaking for the Circuit Court of Appeals, Eighth Circuit, discusses numerous authorities and sets forth the following rules applicable to the validity of zoning ordinances, viz.:

"Zoning laws rest upon the police power of the states, and, when they are fairly within .the well-recognized bounds of such power they are valid, even though they may entail some hardship upon property owners.

“While such police power is broad, there are limitations to its exercise, which the courts have not attempted to accurately define. However, restrictions by zoning ordinances imposed upon the use of one’s property to be valid must bear some ‘substantial relationship to the public health, safety, morals or general welfare.’ The reserved police power of the state must stop when it encroaches on the protection accorded the citizen by the Federal Constitution. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765; Thomas Cusack Company v. City of Chicago et al., 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472, L.R.A.1918A, 136, Ann.Cas. 1917C, 594; Pennsylvania Coal Company v. Mahon et al., 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, 28 A.L.R. 1321; Village of Euclid et al. v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Nectow v. City of Cambridge et al., 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; Oklahoma City, Oklahoma et al. v. Dolese et al. [10 Cir.], 48 F.2d 734.

“Private property cannot, under the guise of police power, be subjected to unreasonable annoyance and arbitrary restriction of its use where public welfare can in no way receive benefit by such restriction. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.1918C, 210, Ann.Cas.1918A, 1201; Louis K. Liggett Company v. Baldridge, Attorney General of Pennsylvania, et al., 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204; Village of Terrace Park et al. v. Errett [6 Cir.], 12 F.2d 240; Anderson et al. v. Jester et al., 206 Iowa 452, 221 N.W. 354.

“Where the legally constituted body, to determine and establish zoning ordinances, has acted within the scope of the police power, courts will not substitute their judgment as to the wisdom or propriety of said action for that of such body. Its discretion is not for review by the courts. Zahn et al. v. Board of Public Works et al., 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074; Nectow v. City of Cambridge et al., 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; Standard Oil Company et al. v. City of Marysville et al., 279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856; American Wood Products Co. v. City of Minneapolis et al., [8 Cir.], 35 F.2d 657; Marx et al. v. Maybury, Director of Licenses of Washington, et al. (D.C.) 36 F.2d 397; Marblehead Land Co. et al. v. City of Los Angeles [9 Cir.], 47 F. 2d 528.

“If the question is fairly debatable as to whether the zoning ordinance is arbitrary and unreasonable and has no substantial relation to public health, safety, morals, or general welfare, the court will not interfere. Radice v. People of State of New York, 264 U.S. 292, 44 S.Ct. 325, 68 L.Ed. 690; Village of Euclid et al. v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Zahn et al. v. Board of Public Works et al., 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074; Marblehead Land Co. et al. v. City of Los Angeles, [9 Cir.], 47 F.2d 528.

“A zoning ordinance may be valid in its general aspects, and yet as to a particular state .of facts involving a particular owner affected thereby may be as to such owner so clearly arbitrary and unreasonable as to be unenforceable. Village of University Heights et al. v. Cleveland Jewish Orphans’ Home [6 Cir.], 20 F.2d 743 [54 A.L.R. 1008]; Jones et al. v. City of Los Angeles et al., 211 Cal. 304, 295 P. 14.”

In the case of Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 384, 38 A.L.R. 1479, the Supreme Court of California had under consideration a zoning ordinance passed under an enabling act similar to Texas law. In that case it was pointed out that “the police power, as evidenced by .comprehensive zoning ordinances, has a much wider scope than the mere suppression of the offensive uses of property * * *, and that it acts, not only negatively, but constructively and affirmatively, for the promotion of the public welfare.” This case also sets forth two, tests for determining the validity of a zoning restriction: “(1) Is the scheme of zoning as a whole sound; that is to say, is the method of classification and- districting reasonably necessary to the publi'c health, safety, morals, or general welfare ? and (2) has the scheme of classification and districting been applied fairly and impartially in each-instance ?”

The ordinance involved in the California case restricted a certain residential district to one and two-family residences. The validity of this restriction was upheld. The court said:

“Somewhere the line of demarcation-, must. be drawn, and it is primarily the j province of the municipal body to which j the zoning function is committed to draw that line of demarcation, and it is neither [ the province nor the duty of courts to in- \ terfere with the discretion with which such | bodies are invested in the absence of a clear / showing of an abuse of that discretion. In j short, as previously indicated, we are not! permitted to substitute our judgment for ! the legislative judgment. Brown v. Los Angeles, supra [183 Cal. 783, 192 P. 716].”

In applying the rules above set out to the particular facts of this case, it will be noted that the Corpus Christi ordinance embodies a comprehensive scheme of city zoning. The general plan adopted was-approved as to legality in the case of Lom-bardo v. City of Dallas, supra. It must be conceded that this ordinance and the Zoning Enabling Act vest in the City Council' an extensive discretionary power to act upon recommendations of the zoning commission provided for in the Act. By providing for a Board of Adjustment in the Zoning Enabling Act (Article 1011g) the Legislature sought to provide proper governmental machinery for the correction of inequities or inequalities caused by the application of a zoning ordinance to particular localities or properties. It must further be conceded that the distribution of governmental powers to the bodies provided for in the Act is well calculated to create and enforce a zoning ordinance and accomplish the purpose of zoning legislation. A zoning commission, under the Act, for instance, is an appropriate body to determine a policy of city planning, and when its recommendation is approved and enacted into law by an ordinance of the City Council, it can only be set aside upon a showing of clear abuse of discretion. If reasonable minds differ as to whether or not a particular restriction has a substantial relationship to the public health, safety, morals or general welfare, the restriction must stand as a valid exercise of the police power.

The test of reasonableness as defined by the authorities above discussed must be applied to the ordinance, or any particular part thereof, as of the time the ordinance was adopted, taking into consideration the physical facts then existing. At the time of the passage of the Corpus Christi ordinance appellees had' not purchased the tract of land upon which they subsequently erected their plant. The plant of the Central Power & Light Company— a public utility producing power and electricity as well as ice — was in existence. The City Council, under the Zoning Enabling Act, could not have required the destruction or removal of this plant. Article 1011c. Appellees’ complaint comes down to the contention that this plant should have been classified as a non-conforming use in a commercial district, rather than a permissive use in a manufacturing district. In our opinion the classification of this property lay within the discretion of the City Council, and the evidence does not support a finding that its discretion was abused in this particular.

As above pointed out, the record shows that the commercial district, as defined by the Zoning Ordinance, contains a number of non-conforming uses. The power to zone necessarily includes the power to plan for the future. It is a prospective power, and the City Council and Zoning Commission are not required to permit an offensive industry to operate in a particular district because of the fact that one such industry was operating there before the passage of the ordinance, and continues thereafter as a non-conforming use. We are here dealing with a comprehensive zoning plan. The need for such a plap is apparent from the record.. We can not says that the City Council abused its discretion in making its Commercial Zone classification and including therein a portion of the blocks fronting on Staples Street, where ap-pellees’ plant is located, although it is conceded that non-conforming uses are located in the zone and on the street. These used are not so numerous as to make unreason-!, able an expectation that the zone and street' would develop in a business and industrial way in substantial conformity with the plan adopted for the commercial district.

It_ is also our opinion that a reasonable distinction may be drawn between ice manufacturing and cold storage plants, on one hand, and ice cream manufacturing and creameries, on the other. Although both types of manufacturing plants may use the same freezing processes and be similar in various respects, there are substantial differences between the two. It appears that ice manufacturing by reason of the processes used, the size of machinery and engines generally employed, because of the bulky nature of the product, and the transportation problem involved, makes the presence of such an industry objectionable in certain localities and vicinities. It follows that their exclusion may be accomplished by a legitimate exercise of the police power. Lipsitz v. Parr, 164 Md. 222, 164 A. 743. The manufacturing of ice cream does not tend to the development of large plants and heavy machinery to’ the same extent as ice manufacturing. One might properly be classified as a light industry and the other as a heavy industry. The City Council did not abuse its discretionary powers in making the distinction complained of, by placing ice cream manu-factories in Commercial Districts and Ice Plants in Manufacturing Districts.

It may be further pointed out that if it be conceded that there is noffegiti-mate distinction for zoning purposes between ice plants and ice cream manufacturing, it does not necessarily follow that the restriction against ice manufacturing in commercial districts is invalid. It is as reasonable to say that the zoning authority was mistaken in permitting the operation of ice cream manufacturing plants and creameries in commercial districts as it is to say that ice plants were erroneously excluded therefrom. Appellees in order to invalidate the restriction upon the particular ground urged must show that because of the terms of the classification involved and the location of certain businesses, shops or industries within the Zone or in the vicinity of appellees’ plant, it is wholly unreasonable to expect that the purpose of the City Council in making -the Commercial District classification can be realized — in other words, that the restriction against the operation of ice manufacturing plants bears no substantial relationship to the public health, safety or general welfare of the community. A showing that three or four ice cream manufacturing plants or creameries are located in the large commercial district of Corpus Christi, even as permissive or conforming uses, is insufficient for that purpose. ■

This case does not present a fact situation comparable to those discussed in City of Amarillo v. Stapf, Tex.Civ.App., 109 S.W.2d 258; City of West University Place v. Ellis, Tex.Civ.App., 118 S.W.2d 907; Id., 134 Tex. 222, 134 S.W.2d 1038; or Pacific Palisades Association v. City of Huntington Beach, 196 Cal. 211, 237 P. 538, 40 A.L.R. 782.

There is no merit in the contention that the restriction against ice manufacturing in commercial districts is arbitrary and unenforcible, because such a business would be more profitable located in such a district and consequently more accessible to the public. It may be that ice plants already in existence at the time the zoning ordinance was passed would possess a certain commercial advantage over ice plants afterwards located in the manufacturing district, as designated by the zoning ordinance. Similar situations necessarily result when a zoning ordinance is applied to a partially developed industrial city. This does not, however, deprive the city of the power to pass a restrictive city ordinance, nor does the fact that the property upon which appellees’ plant is located would be more valuable for ice manufacturing purposes than for a use permitted in a commercial zone, render the restriction invalid. In the case of Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 145, 60 L.Ed. 348, Ann.Cas.1917B, 927, the Supreme Court of the United States, in discussing zoning restrictions adopted under the police power, said: “It is to be remembered that we are dealing with one of the most essential powers of government, — one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily. A vested interest cannot be asserted against it because of conditions once obtaining. Chicago & A. R. Co. v. Tranbarger, 238 U.S. 67, 78, 35 S.Ct. 678, 59 L.Ed. 1204, 1211. To so hold would preclude development and fix a city forever in its primitive conditions. There must be progress, and if in its march private interests are in the way, they must yield to the good of the community. The logical result of petitioner’s contention would seem to be that a city could not be formed or enlarged against the resistance of an occupant of the ground, and that if it grows at all it can only grow as the environment of the occupations that are usually banished to the purlieus.”

To the same effect is the case of Lombardo v. City of Dallas, Tex.Civ.App., 47 S.W.2d 495, 499, wherein it was said: “It is not an effective argument against a zoning ordinance, otherwise valid, that it limits the use and depreciates the value of property, as the public health, safety, morals, and the general welfare are superior in importance to the pecuniary profits of the individual owner. The particular provision of the ordinance attacked must itself be clearly arbitrary, unreasonable and without any substantial relation to the public health, safety, morals, or general welfare, before it could be. held unconstitutional and void. This doctrine seems to be thoroughly well established. See Appeal of Kerr, 294 Pa. 246, 144 A. 81, 83, and authorities cited; Heffernan v. Zoning Board, 50 R.I. 26, 144 A. 674, 675; Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. 120, 43 A.L.R. [651] 660; Spector v. Building Inspector, 250 Mass. 63, 145 N.E. 265, 267; [Village of] Euclid v. Ambler [Realty Co.], 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. [1016] 1026; Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann.Cas.1917B, 927; Neithamer v. Heyer, 39 Ohio App. 532, 177 N.E. 925.”

In affirming the judgment of the Court of Civil Appeals in the Lombardo case, 124 Tex. 1, 73 S.W.2d 475, 478, Chief Justice Cureton said: “All property is held subject to the valid exercise of the police power ; nor are regulations unconstitutional merely because they operate as a restraint upon private rights of person or property or will result in loss to individuals. The infliction of such loss is not a deprivation of property without due process of law; the exertion of the police power upon subjects lying within its scope, in a proper and lawful manner, is due process of law.”

We have concluded from a careful examination of the record that the evidence is insufficient to show that in the matters complained of, the City Council or Zoning Commission of Corpus Christi abused the discretion vested in them by law. We therefore • hold that the Zoning Ordinance in question, and the provisions thereof applicable to appellees and their property are not subject to the-objections here urged against them, but are valid and binding regulations. Other than the cases cited above, the following authorities in our opinion support the conclusions herein announced: Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Chicago Burlington & Quincy Ry. Co. v. Illinois ex rel. Drainage Commissioners, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596, 4 Ann.Cas. 1175; Connor v. City of University Park, Tex.Civ.App., 142 S.W.2d 706, writ refused; Luse v. City of Dallas, Tex.Civ.App., 131 S.W.2d 1079, writ refused; State of Louisiana ex rel. Joseph Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 33 A.L.R. 260; 9 Tex.Jur. 466; 11 Am.Jur. 1087; 3 McQuillin, Municipal Corporations, 2d Ed., 325; Smith v. Collison, 119 Cal.App. 180, 6 P.2d 277; City of Aurora v. Burns, 319 Ill. 84, 149 N.E. 784; Fox Meadow Estates v. Culley, 261 N.Y. 506, 185 N.E. 714; American Wood Products Co. v. Minneapolis, 8 Cir., 35 F.2d 657.

The City of Corpus Christi, in its brief, contends that in the event we hold the ordinance in question valid as applied to appellees’ property (and we have so held), then an injunction should issue from this Court restraining appellees from further operation of their plant in violation of the ordinance, in accordance with the prayer of the cross-action filed in the court below. In our opinion the City is entitled to proceed by way of injunction to prevent further violation of its ordinance, under the provisions of Article 1011h, Vernon’s Ann.Tex.Civ.Statutes. The terms and details of such an injunction should be in accordance with equitable principles, so as to cause no more financial loss than necessarily must result from an effective enforcement of the ordinance under the facts and circumstances of the situation now existing. The trial court'is the proper and suitable tribunal for the granting of such relief.

The judgment of the trial court will be reversed, and judgment here rendered va-. eating the injunction restraining the City, its officials, agents and employees from enforcing the Zoning Ordinance in question. That part of the case relating to the City’s application for injunctive relief will be remanded to the trial court for further proceedings in conformity with this opinion.

Reversed and rendered in part, reversed and remanded in part.


source: Caselaw Access Project

author: FUNDERBURK, Justice.

license: Public Domain

text:
    KIMBROUGH v. STATE.
    No. 2048.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 11, 1940.
    Rehearing Denied Nov. 8, 1940.
    See, also, 139 S.W.2d 165.
    M. E. Lawrence, of Eastland, for appellant.
    Earl Conner, Jr., Dist. Atty., of East-land, Gerald C. Mann, Atty. Gen., and Fred C. Chandler, Geo. W. Barcus, and M. C. Martin, Asst. Attys. Gen., for ap-pellee.
   FUNDERBURK, Justice.

The Liquor Control Board, in the name of the State of Texas, brought this action against G. O. Kimbrough alleging numerous violations by the defendant of the Texas liquor laws. Such violations were alleged to have been committed in and upon certain described lots in Ranger, Texas, concerning which it was alleged: “The said defendant maintains a dwelling house, certain out houses and garage and resides in and has control of said dwelling and houses situated and located on and at the premises above described and has for several years resided and had control of same and is in charge of said property.” It was alleged, in effect, that the enumerated violations of the criminal laws in and upon said property constituted a nuisance. Temporary injunction was prayed and further, that upon final hearing the temporary injunction be made permanent. It was further prayed: “that this court abate said nuisance and order the said premises to be closed and padlocked for a period of one year from the date of said judgment, unless the defendant in said suit makes bond in a penal sum to be decided by this court for not less than $1,000 to be approved as provided by law, payable to the State of Texas in Eastland County, Texas, and conditioned as required by law”, etc.

The case was submitted to a jury upon special issues. By the verdict it was found that the defendant had been guilty of possessing intoxicating liquors for sale, on said premises, upon thirteen different dates, ranging from September 26, 1936, to February 7, 1939, and of selling liquor (two several pints) on the 11th and 12th of April, 1939.

The court, having previously granted a temporary injunction, gave final judgment making the temporary injunction permanent. The judgment, in part, provided as follows: “It is adjudged that the dwelling house situated on lots Nos. 20 and 21, block 18, Ranger Heights Addition of the City of Ranger, Eastland County, Texas, was at the times alleged in said petition and is now a common nuisance within the terms of section 29 of Art. 1 of what is known as the Texas Liquor Control Act, and that the defendant is guilty of maintaining such common nuisance in violation of said Act.” The judgment further specially provided as follows: “And it appearing to the court that the property above described is now and has been for several years continuously next preceding this date the resident homestead of defendant and his family and the court being of the opinion that said Act does not contemplate the padlocking of a resident homestead under the circumstances herein adduced plaintiff’s application insofar as it seeks to padlock said residence be and the same is hereby denied.” The judgment also found defendant guilty of contempt in violating the temporary injunction, imposed a fine of $100 and committed him to jail for three days in punishment of such contempt.

Both parties excepted to the judgment and appealed. The court, upon application of the defendant, fixed the amount of his supersedeas bond at $500 which was given.

The defendant has filed no briefs, or otherwise appeared in this court. The State challenges the correctness of the judgment of the court below only as to said provision refusing to padlock the homestead of defendant.

The appeal presents questions regarding the construction and validity of the following parts of Art. 666 — 29, Vernon’s Annotated Penal Code: “Any county, or district attorney, or the Board, or any agent or employee of this Board in the county where such nuisance exists, or is kept, or maintained, may maintain an action by injunction in the name of the State, or the Board to abate and to temporarily and permanently enjoin such nuisances. Such proceedings shall be guided by the rules of other injunction proceedings, except that the plaintiff shall not be required to give bond in such action and upon final judgment against the defendant the Court shall order that said room, house, building, structure, boat, or place of any kind, shall be closed for a period of one year, or closed for a part of said time and until the owner, lessee, tenant, or occupant thereof shall give bond with sufficient surety, to be approved by the Court making the order, in the penal sum of not less than One Thousand Dollars ($1,000) payable to the State”, etc.

The judgment does not set forth precisely the ground upon which the court refused to order the defendant’s residence to be closed. Manifestly, the statute does not in express terms except property constituting a homestead from its provisions. The constitutional exemption of a homestead, most often the subject of litigation, relates alone to debts, and the power of sale of the owner “if a married man.” Const. Art. 16, sec. 50, Vernon’s Ann.St. If said Vernon’s Ann. Penal Code, Art. 666 — 29, authorizes the closing of a house constituting the defendant’s homestead, the legislative power to do so is referable to the police power. It is believed to be the same power which, as applied to a different subject matter, was designated by Chief Justice Cureton in words as follows: “The power of the Legislature to authorize the levying of special assessments for the improvement of property is one which it has by reason of its reserved legislative power, against which we find no specific limitation in the Constitution, except the usual constitutional guaranties of due process, equal protection of the laws” etc. City of Wichita Falls v. Williams, 119 Tex. 163, 26 S.W.2d 910, 914, 79 A.L.R. 704.

We do not find it necessary nor advisable, particularly in the absence of briefs on the question, to determine whether said statute authorizes in a civil action by the State the closing of defendant’s homestead. For the purposes of this case we may assume without deciding that it does so.

The State has no inherent right to maintain a civil suit to abate a nuisance resulting solely from the violation of the criminal laws and regardless of civil injury affecting the public generally. “Our courts of equity, as such”, says Judge Critz in Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270, 274, “have no jurisdiction to entertain suits to enjoin the commission of acts merely because such acts constitute crimes or penal offenses under penal laws. This is because equity is not concerned with the enforcement of penal or criminal statútes. When the State, through its proper officers, invokes the jurisdiction of a court of equity to abate a nuisance, it must be shown either that the action is directly authorized by some constitutional or statutory law, or that such nuisance is an injury to the property or civil rights of the public at large, — that is, to the public generally.”

We must, therefore, look alone to the Constitution and statutes for the authority of the State to maintain this action and to have a judgment closing a homestead. The sole authority, we take it, is said Art. 666 — 29 of the Penal Code. Since the right of action exists solely as a creature of said statute it exists subject to all the conditions and limitations prescribed by the statute. The statute says: “Such proceedings shall be guided by the rules of other injunction proceedings.” There are one or two exceptions, whether one or two being dependent upon construction. One certain exception is that “the plaintiff shall not be required to give bond in such action.” Another provision, being a further exception or not according to construction, is “and upon final judgment against the defendant the Court shall order that said room, house, building [etc.] shall be closed for a period of one year”, etc. This is either an exception or it refers back to the power to abate a nuisance by injunction as incident to such power. In either view the state’s petition, in our opinion, would not support a decree ordering the closing of the homestead. In support of the judgment we presume that the defendant has a wife. The wife had a direct interest in the homestead necessarily to be effected by an order closing it. “It is a general rule of equity pleading that all persons who are materially interested in the event of suit or in the subject matter, however numerous, should be made parties, either as plaintiff or defendants.” 21 C.J. p. 258, sec. 253. This rule is one of the “rules of other injunction proceedings” by which the action if authorized is to be guided. It does not come within the exception or either of the exceptions, if there be more than one. The wife of defendant was not made a party to the suit. Whether, therefore, there was one or two exceptions from the rules of “other injunction proceedings” by which it was provided that the “proceeding shall be guided” it seems evident that neither exception included such equity rule as to necessary parties. Since the court determined the matters properly submitted to its jurisdiction, it is our conclusion that no error is shown in the action of the court refusing to padlock the homestead property. Even if the State in any event could have had such relief, if the wife had been made a party, the court did not err in such refusal in her absence as a party.

It is accordingly our conclusion that the judgment of the court below should be affirmed, and it is so ordered.


author: MONTEITH, Chief Justice.

text:
    JACOB E. DECKER & SONS, Inc., v. CAPPS et al.
    No. 11051.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 17, 1940.
    John P. Doyle, of Chicago, Ill., Arnold & Arnold, Richard L. Arnold, and William H. Arnold, Jr., all of Texarkana, Ark., for appellant.
    Perry R. Meredith, of Longview, Florence & Florence and Russell Surles, all of Gilmer, and E. M. Dodson, of Marlin, for appellees.
   MONTEITH, Chief Justice.

Elbert Lee Capps, a minor, by next friend, Opal Geraldine Capps, a minor, by next friend, and Mrs. C. K. Capps, a widow, instituted suits against Jacob E. Decker & Sons, Inc., to recover damages alleged to have been sustained by them as a result of eating poisonous and contaminated food alleged to have been manufactured and sold by appellant. The thre'e suits were consolidated and tried together.

Appellees alleged that appellant was a manufacturer of meats, including Cervalet Sausage, for the purpose of sale to retail dealers, knowing that said meats would be re-sold to the public for consumption as food; that they sustained the damages alleged as a result of eating said sausage, which had been impliedly warranted by appellant and that by reason of the condition of said sausage appellant had breached said implied warranty.

They alleged that the contaminated condition of said sausage was due to the negligence of appellant in manufacturing and processing it and in failing to exercise care in its inspection.

Appellant answered by general and special demurrers and by general denial. It specially pled that the sale of said sausage was contrary to law and public policy, in that it was made on Sunday, and that, since the sausage was shipped in interstate commerce and that appellant had complied with all the regulations of the Department of Agriculture of the United States in its manufacture and processing, it was not guilty of negligence.

In answer to special issues submitted, a jury found, in effect, that said sausage was contaminated and poisonous at the time of its manufacture by appellant to such an extent as to be unfit for human consumption; that it had been sold by appellant to J. L. Unger, a retail merchant, and purchased from Unger by C. K. Capps on March 19, 1939, and that the eating of said sausage was a proximate cause of the injuries complained of by appellees. It was found, however, that the contaminated and poisonous, condition of said sausage was not due to appellant’s negligence and that the illness complained of by appellees was the result of an unavoidable accident.

Each of the appellees was awarded damages in the sum of $500 and judgment was rendered in their favor in the sums awarded.

The material facts are undisputed. They are substantially as follows: C. K. Capps, the father and husband of appellees, purchased a piece of Cervalet sausage manufactured by appellant from J. L. Unger, a retail dealer, on March 19, 1939, while on a trip by automobile with his family, consisting of his wife and three children, from Gregg County, Texas, to Oklahoma. At the time of said purchase, the cellophane wrapper on said sausage was unbroken. The entire family of five ate portions of said sausage and each became violently ill during the night. One of. the children died. After their arrival in Oklahoma, a small piece of sausage to which was attached a piece of cellophane on which was stamped the name of “Decker C. E.” was found on the floor of the automobile. A bacteriologist testified that he had examined the sausage and that it contained germs of ptomaine. Unger identified it as similar to the article sold by him to C. K. Capps. Appellant’s evidence showed that every reasonable precaution had been taken in the manufacture and inspection of said sausage to prevent it from becoming contaminated or unfit for human consumption.

The jury having found in answer to special issues submitted that appellant was not guilty of negligence and that the illness of appellees was the result of an unavoidable accident, the judgment of the trial court must be sustained, if at all, on the theory of the breach of an implied warranty.

While there are many conflicting decisions of the courts of both Texas and other states as to whether an ultimate consumer may maintain an action directly against a manufacturer for injuries sustained from the consumption of contaminated articles of food and' beverage on the implied warranty that the article purchased was wholesome and fit for human consumption, we think that the decisions holding the manufacturer liable to the consumer on the principle of implied warranty, are supported by better reasoning and are based on sounder principles than the decisions to the contrary.

The appellant herein, when it sold the sausage in question to the retail merchant, unquestionably impliedly represented to him and to the public, the ultimate consumer of the article purchased, that it was free from injurious substances and was fit for consumption as food. There is no question but that an implied warranty arose between the manufacturer and the retailer, J. L. Unger, who purchased said sausage from it. Since appellant was aware that the^ retailer did not purchase said article fori his own consumption, but that it had pur-) chased the sausage for the purpose of selling it to the public, this implied obligation,which unquestionably arose in favor of the retailer, ran with and inured to the benefit j of appellees, who purchased the article from ¡ the retailer.

This theory is sustained in the recent case of Coca-Cola Bottling Works of Fort Worth v. Smith, 97 S.W.2d 761, 765, in which Chief Justice Dunklin of the Fort Worth Court of Civil Appeals, in his opinion, says:

“We conclude further that the acts of the defendant in manufacturing and putting on the market the Coca-Cola drink in sealed bottles for immediate use by the purchaser of the same from the retailer to whom the defendant had first sold it, implied a warranty not only to the retailer, but to the one who purchased the same from him, that the beverage was wholesome and free of any substance injurious to health. * * *
“We believe that the many decisions of other states holding the manufacturer liable to the consumer of a beverage intended for immediate consumption, on the principle of implied warranty, are supported by better reasoning and on sounder principles than the great number of decisions to the contrary. Manifestly, the Coca-Cola Company, defendant in this suit, manufactured and sold the same to the retailer, not for consumption by the latter, but to be consumed by an ultimate purchaser from the retailer. And the implied representation that it was wholesome and free of deleterious substances was intended to induce the consumer to purchase it, the same as advertisements of the qualities of such a beverage carried in the press and posted on the highways which are commonly resorted to by manufacturers of such articles. And since such representations were made to induce the ultimate purchase of the beverage from the retailer, it should follow that the defendant’s implied warranty to the retailer who purchased from it with knowledge and intention on the'part of the defendant that the beverage would be sold and consumed by a purchaser from the retailer ran with the article and inured to the benefit of the plaintiff who purchased from the dealer.”

In the case of Kress & Co. v. Ferguson et al., Tex.Civ.App., 60 S.W.2d 817, 818, the court in its opinion says: “ * * * we hold, appellant- impliedly warranted that the food sold appellee Zell Ferguson was wholesome, contained no deleterious substance, and was fit for consumption. We are aware that on this question the decisions of the courts of the various states are conflicting, but we think that the great weight of modern authority, and the better reasoning, supports our holding. Many, if not most, of the older cases which hold to the contrary, went off on the idea that there had not been a sale of food, but of service in serving the food. * * * Even under the old decisions, a sale by appellant having been conceded the implied warranty of the wholesomeness of the food sold and its fitness for the use for which it was bought, follows. As supporting our holding of implied warranty * * Citing numerous cases.

The holdings in the above cases are followed in the case of Brown Cracker & Candy Co. v. Jensen et al., Tex.Civ.App., 32 S.W.2d 227.

In the case of Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170, the Commission of Appeals, in passing on the question of liability of a retail merchant to the purchaser of a can of corn which was alleged to be poisonous, held that the retailer was liable to the purchaser on an implied warranty that the corn sold him was a pure and wholesome food. It was held that, since the identity of the manufacturer had been concealed, the retailer took his place.

Appellant relies upon the case of Dunn v. Texas Coca-Cola Bottling Company, Tex.Civ.App., 84 S.W.2d 545, writ of error dismissed, in support of its contention that a purchaser from a retail merchant cannot hold the manufacturer of the purchased goods for damages in the event the goods are not fit for human consumption 'on the ground of implied warranty. The Court of Civil Appeals reversed and rendered the case for plaintiff on the grounds that plaintiff was entitled to judgment on the findings of the jury on the issues of negligence on the part of defendant. The Supreme Court, in dismissing the writ of error, decided only that a correct judgment had been rendered by the Court of Civil Appeals. This action did not necessarily involve the question of implied warranty.

Appellant contends that, since the alleged sale to J. L. Unger was made on Sunday, the sale and contract were in violation of Arts. 286 and 287, Penal Code of the State of Texas, Vernon’s Ann.P.C. arts. 286, 287, which forbids the sale of food and provisions after 9 o’clock on Sundays,' and that no action could be maintained based on an alleged breach of warranty on said sale, and that therefore there could be no implied warranty arising out of said contract, and no breach thereof. This contention cannot be sustained. The question involved herein was decided contrary to appellant’s contention in the case of Texas Employers’ Ins. Ass’n v. Tabor, Tex.Civ.App, 274 S.W. 309, 311, affirmed by the Commission of Appeals, 283 S.W. 779.

This action was brought to set aside an award of the Industrial Accident Board. Appellant contended that the contract involved services to be rendered on Sunday which were in violation of Art. 299 of the Penal Code, which forbids labor on Sunday, and that therefore the relation of employer and employee did not exist between the parties, and that there was no liability on its part as an insurer under the Compensation Act. The court in its opinion says:

“This contention in our opinion is foreclosed against appellant by the ruling of Judge Stayton in [Houston & T. C.] Railway Co. v. Rider, 62 Tex. 267. In that case Rider and the engineer of a train were fellow servants. The former was injured through the latter’s negligence * * *. The work the parties were engaged in at the time the accident occurred was being-done on Sunday. * * *
“Rider sought to avoid the force of the fellow-servant doctrine upon the theory that the relation of fellow servants between himself and the engineer did not exist bécause they were performing labor in violation of the Sunday Law. Judge Stayton said:
“ ‘That this was on Sunday did not change the relation which existed between the engineer on the train.and the plaintiff. They were fellow servants, nevertheless, in view of the rule which affects the question of master’s liability, even if the work in which they were engaged was not such as the law permits to be done on that day.’ * * *
“The principle upon which recovery is allowed in such cases is thus stated by Judge Cooley:
‘Where the violation of law is merely a condition and not a contributory cause of the injury, a recovery may be had.’ * * * It has been often held in this state that negligence óf a plaintiff because of a violation of a statute or ordinance will not bar his right of recovery in an action for personal injuries unless such negligence was a proximate cause of the injury (Keevil v. Ponsford [Tex.Civ.App.] 173 S.W. 518, and cases there cited), and we see no reason why the same rule should not apply in a personal injury suit at common law by an employee against his master, where the latter sets up that the servant was laboring in violation of the Sunday law. We think if the present action could be maintained at common law by Tabor against the Fulwiler Motor Company, the latter could not defend upon the ground that at the time Tabor was injured he was laboring in violation of the Sunday law, unless it was further shown that this was a proximate cause of the injury.”

In the case of St. Louis, B. & M. Ry. Co. v. Price, 269 S.W. 422, opinion adopted by the Supreme Court, it is held that while it is true the violation of a statute is negligence, it is equally true that such negligence must be the proximate cause of the injury before it will preclude recovery. This is well settled in the recent opinion of our Supreme Court, speaking through Justice Greenwood, in the case of Waterman Lumber Company v. Beatty, 110 Tex. 225, 218 S.W. 363.

Our courts have uniformly held that an agreement to perform certain work on Sunday is illegal and cannot be maintained. It is the rule, however, that if a party can show a complete cause of action without being obliged to prove his own illegal act, although such illegal act may incidentally appear, and may be important as explanatory of other facts in the case, he may recover.

Appellant challenges the findings of the jury to the effect that said sausage, became contaminated to such an extent as to become unfit for human food during the time it was being manufactured by defendant; that the sausage was in such contaminated condition at the time it was delivered to the retail dealer, and that the eating of the sausage was a proximate cause of appellees’ illness.

It bases this contention on appellant’s evidence that it had at all times used the latest methods in its plants to prevent its products from becoming contaminated by impurities. It contended that meats that went into its products had been inspected by United States Government authorities and that it had complied with all federal government regulations with reference to manufacturing, inspecting, and shipping them.

The question raised here was presented in the case of Coca-Cola Bottling Co. v. Smith, Tex.Civ.App., 97 S.W.2d 761, 765, supra. In this case the court, in discussing the sufficiency of the evidence to sustain a finding that a cockroach found in a bottle of Coca-Cola got into the bottle during the process of manufacturing and bottling the product, says: “In view of plaintiffs’ inability to prove just how the cockroach happened to be in the bottle of coca-cola and the superior knowledge of defendant as to the process employed to manufacture and bottle the beverage, and its manifest inability to produce a witness to testify just how this particular bottle of the beverage was cleaned before it was .filled, we believe plaintiffs were entitled to invoke the rule of res ipsa loquitur.”

In the case of Swift & Co. v. Blackwell, 4 Cir., 84 F.2d 130, a party was injured by swallowing broken fragments of glass found in a can of milk. It was held proper for the court to submit to the jury an issue as to whether the glass was in the can when it was sealed in the factory or was placed there after the can was opened, although the testimony to the effect that there was no possibility of the glass getting into the can during the process of manufacture was un-controverted.

The courts of this state have never subscribed to the doctrine that a manufacturer, by introducing testimony to the effect that it had used the latest methods of processing its products, and the most approved methods of inspection, will be, as a matter of law, free of liability for injury caused by their use.

The rule is laid down in Cameron Compress Co. v. Whitington, Tex.Com.App., 280 S.W. 527, and the cases cited, that testimony showing that reasonable precautions had been taken and that devices such as are customarily used with good results had been employed, will be admitted to be considered by the jury as any other testimony in the case, but this evidence will not be conclusive of defendant’s contention. Fort Worth & D. C. Railway Co. v. Gatewood, Tex.Civ.App., 185 S.W. 932; Skelton & Wear v. Wolfe, Tex.Civ.App., 200 S.W. 901; Magnolia Paper Co. v. Duffy, Tex.Civ.App., 176 S.W. 89, 90.

Appellant pleads as a defense the act of Congress of the United States known as Title 21 U.S.C.A., Section 71 thereof. It contends that the United States Government in such act had set up a complete standard of the care required in the manufacture of meat products to be shipped in interstate commerce; and that it had complied with this standard of care in the manufacture and inspection of its products; and that therefore it cannot be held responsible for an injury received by the ultimate consumer of such products on account of any poisonous or impure substance found therein.

The courts of the State of Pennsylvania in the case of Catani v. Swift & Co., 251 Pa. 52, 95 A. 931, L.R.A.1917B, 1272, Id., 241 U.S. 690, 36 S.Ct. 554, 60 L.Ed. 1238, have held, in passing on this identical question, that it is no defense that federal officers had inspected and approved meat under Title 21, Section 71, U.S.C.A.

For the above reasons, the judgment of the trial court will be in all things affirmed.

Affirmed.


author: DUNKLIN, Chief Justice.

text:
    GARRETT et al. v. BROCK.
    No. 14114.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 4, 1940.
    Rehearing Denied Nov. 8, 1940.

      Gillen, Francis & Gallagher, of Dallas, for appellants.
    T. R. Boone, Kearby Peery, and Charles C. McDugald, all of Wichita Falls, for ap-pellee.
   DUNKLIN, Chief Justice.

This suit grew out of a collision between an automobile driven by A. B. Sandler and a truck in charge of one W. C. Barnes, as the agent and employee of E. N. Brock. The collision occurred on the highway about 3½ miles east of Iowa Park, about 9 o’clock in the evening on about April 12th, 1939. At the time of its happening, the truck and the automobile were both headed in an easterly direction toward Wichita Falls, with the truck in front and the automobile following it, and the front end of the automobile struck the rear end of the truck.

Mrs. Iona Lebus, who later married D. F. Garrett, was the owner of the automobile, and she was riding on the front seat with A. B. Sandler, the driver, when the accident happened. Mrs. Yetta Sandler, wife of A. B. Sandler, was also riding in the automobile, and was sitting on the front seat between her husband and Mrs. Lebus.

The suit was instituted by Mrs. Iona Le-bus, but during its pendency she was married to D. F. Garrett, and thereafter it was prosecuted in the name of D. F. Garrett and his said wife, as plaintiffs.

Judgment was sought against the defendant, E. N. Brock, for $7,500 damages for alleged personal injuries sustained by Mrs. Garrett, as a result of the collision, plus $75 as expenses incurred for medical treatment for those injuries. Recovery was also sought for damages done to the automobile.

The case was tried to a jury in answer to special issues, and upon their verdict judgment was rendered in favor of the defendant, from which plaintiffs have prosecuted this appeal.

The jury found that on the occasion of the accident and prior to the collision, the driver of the truck brought the same to a stop, and when it stopped it occupied a part of the paved portion of the highway, and was in such position that it obstructed the right-hand side of the main portion of the traveled highway, while the left side of the highway nearly opposite the truck was occupied by another vehicle, and that the stopping of the truck in that position was negligence, which was a proximate cause of the injuries sustained by Mrs. Garrett.

The facts so found by the jury were all alleged in plaintiffs’ petition. There were other allegations of negligence on the part of the defendant, namely, the failure of the truck driver to carry at the rear of said truck a lighted lamp, exhibiting one red light plainly visible 500 feet from the rear; and also failure to have a clearance light on the left side of the truck at the rear, displaying a red or yellow light visible for a distance of 500 feet from the rear; also failure to have a reflector at the rear of said truck, located as to height and maintained in such manner to be visible for at least 200 feet when opposed by the light of a motor vehicle displaying lawful undimmed headlights at night.

But the jury made adverse findings on those issues, and appellants have not assigned error to those findings.

The jury further found that $275 would reasonably compensate plaintiff, Mrs. Iona Garrett, for the injuries she sustained as a result of the collision, and that $43 was the reasonable value of physician’s services in treatment for those injuries.

There were further findings that the reasonable market value of plaintiffs’ automobile immediately before the collision was $650, and its reasonable market value after the collision was $125; and further, that the reasonable market value of the car immediately after it was repaired was $400. In this connection, we will state that according to the undisputed evidence the plaintiffs had those repairs made and that the repair bill was paid by an insurance company who carried accident insurance on the automobile. There was a further finding that the collision in question was not an unavoidable accident. Other special issues, with the findings of the jury thereon, were as follows:

“23. Do you find from a preponderance of the evidence that the plaintiff and A. B. Sandler were on a joint enterprise just prior to and at the time of the collision in question? Answer: Yes.
“24. Do you find from a preponderance of the evidence that A. B. Sandler was driving plaintiff’s automobile at the time and just prior to the time in question, in excess of 45 miles per hour ? Answer: No.”
“26. Do you find from a preponderance of the evidence that A. B. Sandler was driving plaintiff’s automobile at the time and just prior to the collision in question, at an excessive rate of speed? Answer: Yes.
“27. Do you find from a preponderance of the evidence that such rate of speed at which A. B. Sandler was driving said car in question, as inquired about in Special Issue No. 26, was the proximate cause of the injuries to the plaintiff? Answer: Yes.
“28. Do you find from a preponderance of the evidence that A. B. Sandler at the time and just prior to the collision in question failed to keep a ‘proper lookout’ for traffic on the highway in question? Answer: Yes.
“29. Do you find from a preponderance of the evidence that such failure on the part of A. B. Sandler to keep a proper lookout, if you have so found he did fail, was a proximate cause of the damage to plaintiff, if any ? Answer: Yes.”
“38. Do you find from a preponderance of the .evidence that A. B. Sandler failed to use ‘ordinary care’ toward having plaintiff’s car under control just prior to the time of the collision in question? Answer: He failed to use ordinary care.
“39. Do you find from a preponderance of the evidence that such failure on the part of A. B. Sandler to have plaintiff’s car under control at the time in question, as inquired about in the preceding issue, was a proximate cause of plaintiff’s damage, if any? Answer: Yes.”
“43. Do you find from a preponderance of the evidence that A. B. Sandler discovered the position of the truck prior to the time of the collision in question? Answer: Yes.”
“49. Do you find from a preponderance of the evidence that A. B. Sandler, in approaching the place where the collision, occurred, failed to use ordinary care in reducing the speed of his car before driving the same past the warning signs, and car, on the highway, belonging to Mr. Beverly? Answer: Yes.
“50. Do you find from a preponderance of the evidence that such failure inquired about in the preceding issue on the part of A. B. Sandler was a proximate cause of the damages of the plaintiff, if any? Answer: It was a proximate cause.”

The issue of joint enterprise, submitted in Special Issue No. 23, was specially pleaded by the defendant, and the negligence of Sandler, found by the jury in issues above shown, was pleaded as contributory negligence chargeable to Mrs. Garrett, by reason of such joint enterprise! Other allegations of contributory negligence of Sandler were not sustained by the jury, and therefore are not necessary to be mentioned here.

Special Issue No. 42 and the jury’s answer thereto are as follows: “Do you find from a preponderance of the evidence that the acts and conduct of A. B. Sandler in driving the plaintiff’s automobile prior to and at the time of the collision was not the sole proximate cause of the collision? Answer: It was not the sole cause.”

According to further findings of the jury, Mrs. Garrett discovered the position of the truck prior to the time of the collision but that such discovery was not in sufficient time to enable her to avoid the collision by the exercise of ordinary' care and the use of all the means at her command.

After the verdict was returned, the plaintiffs filed their motion for the court to disregard the findings of the jury in answer to Special Issue No. 23 of joint ■enterprise, because not supported by any competent evidence; and as a corollary thereto to set aside the further findings of contributory negligence of A. B. Sandler, the driver of the automobile, because the ■same was not imputable to plaintiffs in the .absence of a sufficient finding of joint enterprise. Plaintiffs further prayed for judgment in their favor for damages occasioned by defendant’s negligence as found by the jury.

That- motion was based on Vernon’s Texas Civil Statutes, Art. 2211, as amended by the Acts of the 42nd Legislature in 1931.

Much testimony bearing on the issue of joint enterprise is cited -in appellants’ briefs, which we shall not undertake to set out in full here. The following is the substance of the facts established by the undisputed testimony of Mrs. Garrett and Mr. Sandler and his wife. Mr. and Mrs. Sandler planned a trip from Electra to Wichita Falls to attend a church social at the Holt Hotel, given by the Women’s Auxiliary of the Jewish Synagogue, and invited Mrs. Lebus to accompany them in their car and the invitation was accepted. When they were ready to start on the trip, Mr. Sandler discovered that his car was not in proper running condition. Mrs. Lebus then proposed that her car be used instead of the Sandler car, and delivered to him the keys of her car, with the understanding he was to drive it. Sandler proceeded to do the driving. Mrs. Lebus and Sandler occupied the front seat of the car, and Mrs. Sandler sat between them on that seat.

Mrs. Lebus testified in part as -follows:

“A. If he (Sandler) had been driving careless or reckless why I would have stopped him.
* * * * *
“Q. Why would you have stopped him? It was your car? A. Because I don’t believe in driving 75 or 80 miles an hour at night or driving careless or reckless.
“Q. * * * In other words, you knew that was your car and you had control over it? A. And what?
“Q. And you had control over it. A. Well, whether it was my car or whether I had control over it or not if I was driving with some one else in their car and they were going 75 or 80 why I would ask them not to drive so fast.
“Q. But you knew that you wasn’t going to permit him to go 75 or 80 miles an hour with your car that night? A. I wouldn’t have permitted it with anyone else if I could have kept them from it even in their car.
«* * * * *
“Q. You knew that was your car and you could control it with reference to him driving reckless and careless and 75 or 80 miles an hour, didn’t you? A. Yes, I think a passenger has a right to control any driver that is driving too fast.
“Q. And if he had started driving 75 or 80 you would have stopped him, would-n’t you? A. I would have asked him to have gone slower.
“Q. Well, wouldn’t you have stopped him? A. I don’t know how I could have stopped him. I would have asked him to drive slower.
“Q. Then he was driving under your directions as far as speed was concerned. A. Why, no.
“Q. Well, with your consent, going as fast as he was. A. He was driving my car.
“Q. Yes. And had your consent to go the speed he had gone? A. I didn’t say anything to him about the speed he was going.
“Q. The speed he was going was satisfactory to you? A. Yes, it was.”

We believe the decision of the Supreme Court in El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187, 189, is controlling on the question now under discussion. In that case it was held that the testimony introduced showed conclusively, as a matter of law, that the trip there involved was a joint undertaking by the driver of an automobile and Miss Leeper, whose mother, in her behalf, furnished the car for the trip, and Miss Leeper was riding with the driver when an accident happened, occasioned by the concurring negligence of the Electric Company and the driver of the car, as the result of which Miss Leeper sustained personal injuries, for which recovery of damages was sought. It was held that by reason of the joint undertaking the contributory negligence of the driver was imputable to Miss Leeper, which . barred her recovery against the Electric Company, notwithstanding its negligence. The testimony in this case pertinent to the issue of joint undertaking is substantially to the same effect as that in the Leeper case, in which the Supreme Court approved these rules touching the question of joint enterprise:

“Where persons are engaged in a common or joint enterprise and each has an equal right to direct and control the conduct of the others with respect to acts or omissions which contributed to cause an injury to one of them, the negligence of one of such persons is imputed to each of the others. 45 C.J. p. 1020, par. 574.

“As applied to occupants of a conveyance, the doctrine of joint enterprise not only requires joint possession thereof by the joint adventurers, but they must also have joint control and responsibility for its operation. Simensky v. Zwyer, 40 Ohio App. 275, 178 N.E. 422. This rule is in harmony with the definition given by the trial court in the instant case. In this regard the trial court charged the jury as follows: ‘Occupants of a conveyance are supposed to be on a joint expedition where they have not only a joint interest in the object and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.’ ”

Accordingly, the assignment of error now under discussion is overruled, without a discussion of decisions of other states cited by appellants, to support a different conclusion.

One Earl Davis was introduced as a witness for the defendant and testified that at the time of the accident he was engaged in repairing a fence about 900 feet from the place of the accident, using a light, and from which he saw the collision; that defendant’s truck had not stopped until it was struck by the automobile; that just prior to the accident the automobile was being driven 5*0 or 60 miles per hour, and he did not notice that it slowed down; there were three lights on the rear end of defendant’s truck and all were burning when he got to the truck after the collision; he did not notice any reflector on the truck. But further testimony given by him tended to discredit some of the foregoing, especially when considered in connection with his statement to the effect that owing to the long time that had elapsed since the accident his memory of the incidents connected therewith was not quite clear.

Error has been assigned to statements made in argument to the jury by counsel for defendant, as follows:

“Old Earl Davis, I have known him many years and you may believe because he is acquainted with me, he didn’t tell the truth; but, if you had known Earl Davis as I know him and his daddy as I knew him, you wouldn’t have that feeling about him.”
“How fast, Earl? 50 or 60 miles an hour, and it didn’t slow up until it hit that truck? I don’t know, this jury may go out and say Earl Davis lied, but I have known him and I have known him years and knew his daddy before him, and I have a great deal of respect for Earl Davis.”
“You know, milk of human kindness runs in the veins of some people, and within 15 Or 20 years the people know about it. Earl went down there to help.”

No objection was urged by counsel for plaintiff to that argument when it was made, but same was urged in plaintiffs’ motion for new trial as a ground for setting aside the judgment rendered in defendant’s favor on the verdict returned.

The trial court approved the bills of exception to that argument with this qualification :

“The court is of the opinion that the argument of T. R. Boone was in reply to the argument of Mr. Gillen, and the court allows this bill, with the foregoing qualifications.”

In the first place, the 'findings of the jury definitely show that the jury discredited Davis’ testimony that the truck did not stop before the collision occurred; and that just prior to the collision the automobile was traveling 50 or 60 miles per hour. And by reason of the uncertainty of his further testimony as to lights on the truck, it is not reasonably probable that much credence was given thereto. The argument of counsel for defendant to the jury was not of such prejudicial and inflammatory character that probable injury to plaintiffs by reason thereof could not have been avoided by an instruction to the jury if plaintiffs had objected thereto at the time they were made. Failure to make objection thereto, especially when the remarks complained of were made at different times, as shown by bills of exceptions, was a waiver of right to complain of them for the first time in plaintiffs’ motion for new trial. Texas Cities Gas Co. v. Ellis, Tex.Civ.App., 63 S.W.2d 717; City of San Antonio v. McKenzie Construction Co., Tex.Civ.App., 138 S.W.2d 568; Ramirez v. Acker, Tex.Civ.App., 124 S.W.2d 905; Id., 134 Tex. 647, 138 S.W.2d 1054; Missouri, K. & T. Ry. Co. v. Nesbit, 43 Tex.Civ.App. 630, 97 S.W. 825, writ refused; Black v. Wilson, Tex.Civ.App., 187 S.W. 493, writ dismissed; Harris v. Sadler, Tex.Civ.App., 55 S.W.2d 173, writ dismissed; City of Waco v. Rook, Tex.Civ.App., 55 S.W.2d 649, writ dismissed.

Moreover, it was within the discretion of the trial court to overrule the objection to the argument if the same was provoked as a rejoinder to argument already made by plaintiffs’ counsel. And in the absence of a clear showing of abuse of such discretion, no error is shown. Brazelton v. St. Louis S. W. Ry. Co., Tex.Com.App., 296 S.W. 290; Emberlin v. Wichita Falls Ry. & Ft. W. Ry. Co., Tex.Com.App., 284 S.W. 539.

When the bills of exception were accepted and filed by appellants, they were bound by the qualification thereof by the trial court. Vernon’s Tex.Civ.St. Art. 2237; Lowrimore v. Sanders, 129 Tex. 563, 103 S.W.2d 739, 106 S.W.2d 266; Petroleum Casualty Co. v. Bristow, Tex.Civ.App., 35 S.W.2d 246; 3 Tex.Jur. 657.

Accordingly, the assignment now under discussion is overruled.

Since the judgment in favor of defendant on the whole case must be affirmed, on the findings of the jury of joint, enterprise, and the contributory negligence of Sandler, above shown, it is not necessary to determine the merits of another assignment to the admission of testimony offered by defendant, that the insurance company, with whom plaintiffs had procured an insurance policy, had paid $410 for repairs on the automobile after the collision; over plaintiffs’ objection that the transaction was with a stranger to the suit, and such testimony would be prejudicial to plaintiffs’ right to recover the damages which they sought to recover.

For the reasons stated, the judgment of the trial court is affirmed in its entirety.

On Motion for Rehearing.

As pointed out in our original opinion, the trial judge approved the several bills of exception to statements of appel-lee’s counsel in his argument to the jury, with the qualification that the argument so made was in reply to argument theretofore made by plaintiffs’ counsel. Appellants contend that the qualification was without proper foundation in fact, as reflected by the bills themselves. Those bills of exception set out the certain prior argument of plaintiffs’ counsel, to which it is insisted the qualification was necessarily confined. That argument of plaintiffs’ counsel was to the effect that the testimony of Earl Davis, witness for the defendant, that the truck was still moving when the collision occurred, was untrue, as reflected by other testimony of that witness of certain circumstances detailed. It is insisted that, as that argument was confined to Davis’ own testimony, the argument of defendant’s counsel outside the record could not be excused on the ground that it was merely a rejoinder to the argument of plaintiffs’ counsel. As noted in our original opinion, no possible harm resulted to plaintiffs by the remarks of defendant’s counsel shown in those bills of exception, since the finding of the jury that the truck had stopped before the collision showed conclusively a rejection of Davis’ testimony that it was still moving when the collision occurred, as well as his further testimony pointed out in original opinion as to the speed of plaintiffs’ car before the collision.

There was a- further qualification of those bills of exception, to the effect that plaintiffs offered no objection to the argument of counsel at the time the argument was made, which counsel for plaintiffs admits was true. It follows, therefore, that the improper argument complained of worked no injury to appellants and therefore was insufficient to require a reversal of the judgment. 3 Tex.Jur. par. 877; page 1253, par. 883, page 1260.

In the motion for rehearing, the seventh assignment of error urged on original hearing is again presented. In that assignment complaint was made of the admission in evidence offered by defendant, in substance that the bill for repairs of the automobile in question was paid by the General Insurance Company, that carried accident insurance on the car, and that, too, in the absence of any admissible proof of the customary stipulation in the policy that the insurer would be subrogated to the rights of the insured to any right of action the latter may ^ have against the wrongdoer whose tort was the proximate cause of the damage.

Following is one of the objections urged to the admission of that evidence, and repeated several times: “This relates to a transaction between the plaintiff and another party that has nothing to do with the defendant and it absolutely has no connection with this lawsuit, and it is irrelevant, and it is prejudicial to the plaintiff in this case because she does have a right to recover for this damage to her automobile, and any compensation that may be paid to her by a third party under a contract with that party has nothing to do with her right to recover, and such testimony as to such a transaction is of a prejudicial nature and should not go before this jury.”

In plaintiffs’ petition it was alleged that immediately before the collision the reasonable market value of the car was $750; immediately after the collision it was $100; that it was repaired at the reasonable expense of $410, and its reasonable market value after those repairs was $375; and that the car was damaged in the sum of $650.

The jury found that immediately before the collision the reasonable market value of the car was $650; its reasonable market value immediately after the collision was $125; and its reasonable market value immediately after it was repaired was $400.

The proof showed "that the repair bill was for $410, which was paid by the Insurance Company, less “the deductible” of $50, making the amount paid $360.

That evidence was relevant to the issue of the amount of damages recoverable for injury to the car. It was wholly irrelevant to the issues of joint enterprise and contributory negligence of A. B. Sand-ler, the driver of the car, both of which were determined by the jury in defendant’s favor.

But assuming error in its admission, as insisted by appellants, yet the err- or was harmless because the findings of the jury of joint enterprise and contributory negligence were sufficient to defeat plaintiffs’' suit, even if the court had excluded the proof of payment of repairs by the Insurance Company.

There is nothing in the record to suggest possible bias in favor of defendant against the plaintiff, a woman, and the minor child. If left to conjecture, possible bias in her favor might more reasonably be surmised. Since, as urged by plaintiffs in objections to that testimony, the payment of the repair bill by the Insurance Company had no possible bearing on the issues of joint enterprise and contributory negligence of the driver of plaintiffs’ car, it would be unreasonable to suppose that a jury composed of twelve fair-minded men of average intelligence probably might have been influenced thereby to plaintiffs’ injury.

We cannot say that the error in admitting the testimony last referred to “amounted to such a denial of the rights of appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case”, within provisions of Court Rule 62-a. 3 Tex.Jur. par. 874, page 1249, and par. 875, page 1250, par. 880, page 1267.

In addition to the foregoing authorities, a multitude of decisions is noted in 1 Tex. Jur. Supplement, beginning on page 352, upon the subject of “harmless error” in trials of cases, showing different holdings under different conditions of the records. We shall cite only a few of those decisions, which we believe support our foregoing conclusion on the question now under discussion, and also on the issue of improper argument. Nance v. McClellan, 126 Tex. 580, 89 S.W.2d 774 (Sub. 7 of Syl.), 106 A.L.R. 117; San Antonio U. & G. Ry. Co. v. Schmidt, Tex.Civ.App., 18 S.W.2d 237 (Sub. 9 of Syl.) error dismissed; Bankers’ Reserve Life Co. v. Springer, Tex.Civ.App., 81 S.W.2d 756 error refused; Epting v. Nees, Tex.Civ.App., 25 S.W.2d 717 (Sub. 7 of Syl.) error refused; McFarlin v. Elliott-Tuck, Inc., Tex.Civ.App., 71 S.W.2d 410 (Sub. 3 of Syl.).

Hence we conclude that assignment of error No. 7 is without merit.

The motion for rehearing is overruled.