text:
    TEXAS INDEMNITY INS. CO. v. STAGGS et al.
    No. 1789—7317.
    Commission of Appeals of Texas, Section B.
    Jan. 3, 1940.
    W. P. Z. German, of Tulsa, Old., Robert M. Turpin, of Midland, and Bert King and Harold Jones, both of Wichita Falls, for appellant.
    Napier & Napier, of Wichita Falls, for appellees.
   SMEDLEY, Commissioner.

The Court of Civil Appeals has combined in one instrument the certification of the question of law to be decided and its tentative opinion on the question certified. We are authorized by the court to direct attention to the fact that Rule 15 for the Supreme Court, as rewritten December 9, 1936 (126 Texas v, 99 S.W.2d xxix) contemplates and intends, when a question of law is certified under Article 1851 of the Revised Civil Statutes of 1925, the preparation and transmission of a tentative opinion separate and distinct from the certificate, which certificate should submit the question or questions of law to he decided with such statement of the nature of the case and of .the material facts as may be necessary for the decision of the said question or questions.

The material facts gathered from the certificate and tentative opinion are as follows : H. T. Staggs was an employee of Skelly Oil Company, insured by plaintiff in error Texas Indemnity Insurance Company under the Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq. His duties were to supervise and repair engines in the company’s pumping plant, which was situated about five or six miles from the town of Burkburnett. He lived on the company’s property a short distance ■ from the plant and was required to be in and out of the pumping plant and to keep the engines working properly for twenty-four hours a day. .Staggs worked nearly all night on October 31, 1935, endeavoring to repair one of the engines and returned to his home about 8 o’clock oil the morning of November 1. After eating breakfast with his family he started to go back to the pumping plant to complete his work, fell while descending the steps of his home and struck his head on a concrete 'block near the steps. He went on to the pumping plant, however, and about 9:30 o’clock engaged in a telephone conversation with the superintendent of the Skelly Company, who gave him instructions that called for a reply. Staggs made no reply and about fifteen minutes after the end of the telephone conversation the superintendent sent a man to investigate. Staggs was found dead, lying on the floor of the office of the pumping plant.

The suit was brought by the surviving wife in behalf of herself and minor children for recovery of compensation under the Workmen’s Compensation Law. The petition. alleges the facts above set out as to the fall and further that the ' exhaust pipe of one of the engines in the pumping plant leaked, causing great quantities of carbon-monoxide gas -to accumulate in the building, and that Staggs was compelled to inhale the gas while he worked. Then follows this allegation: “And the plaintiffs allege that said fall and the inhalation of the carbon-monoxide gas, both and each, caused and contributed to the death of the ■said H. T. Staggs”.

A physician, who performed an autopsy at the request of plaintiff in error, testified that the death of Staggs was due to cerebral hemorrhage caused by the rupture of the carotid artery and that the rupture resulted from high blood pressure, sclerosis of the blood vessel and degeneration of the brain tissue surrounding the bloo.d vessel, which- condition, in his opinion, might have existed for months or years. A physician who testified for defendants in error expressed an opinion which the Court of Civil Appeals found sufficient to support the jury’s finding that the injury suffered by Staggs in the fall caused his death.

The jury made, among others, the following findings in answer to special issues:

“1. Do you find from a preponderance of the evidence that the deceased H. T. Staggs, fell while descending the steps of his house on the morning of November 1, 1935?
“Answer: He did.
“2. Do you find from a preponderance of the evidence that the deceased, H. T. Staggs, sustained accidental injury to his head in so falling, if he did fall.
“Answer: He did.
“3. Do you find from a preponderance of the evidence that such injury, if any, was a producing cause of the death of the said H. T. Staggs, deceased?
“Answer: Yes.
“4. Do you find from a preponderance of the evidence that such injury, if. any, was sustained in the course of his employment with Skelly Oil Company?
“Answer: Yes.
“5. Do you find from a preponderance -of the evidence that the deceased, H. T. Staggs, inhaled carbon monoxide gas on or about the 1st day of November, 1935, in the employer’s pumping station?
“Answer: He did.
“6. Do you find from a preponderance of the evidence that the said H. T. Staggs, deceased, sustained an accidental injury as the result of the inhalation of such gas, if any?
“Answer: He did.
“7. Do you find from a preponderance of the evidence that such injury, if any, was a producing cause of the death of the said H. T. Staggs, deceased?
“Answer: Yes.
“8. Do you find from a preponderance of the evidence that such injury, if any, was sustained in the course of his employment while in the employ of Skelly Oil Company ?
“Answer: Yes.
“9. Do you find from a preponderance of the evidence that the death of the said H. T. Staggs was not caused solely by disease ?
“Answer: It was not caused solely by disease.”

In submitting the special issues the court thus instructed the jury as to the meaning of “producing cause”: “You are instructed that the term ‘producing cause’ as used in this charge, is that cause which, in a natural and continuous sequence, produces the death in issue, and without which the death would not have occurred.”

On the jury’s answers to the special issues above set out, and answers to other issues not material to the question certified, judgment was rendered in favor of defendants in error against plaintiff in error for the sum of $20 per week for 360 consecutive weeks.

The Court of Civil Appeals concluded that there is no evidence to support the jury’s answers to issues Nos. 5, 6 and 7 above set out by which it found that Staggs inhaled carbon-monoxide gas, that he sustained accidental injury in the inhalation of the gas, and that such injury was a producing cause of his death; and counsel for defendants in error has conceded the correctness of that conclusion. The Court of Civil Appeals expressed in the certificate and tentative opinion the further conclusion that there is evidence reasonably supporting the jury’s answers to issues Nos. I, 2, 3 and 4 above set out by which it found that Staggs fell while descending the steps of his home, that in so falling he sustained accidental injury to his head, that such injury was a producing cause of his death, and that the injury was sustained in the course of his employment.

The question certified for decision is as follows: “Were the findings of the jury, in answer to special issues Nos. 1, 2, 3 and 4, sufficient, of themselves, to support the judgment rendered awarding plaintiffs compensation for the death of Staggs, independently of further findings in answer to special issues Nos. 5, 6 and 7, which had no sufficient support in the evidence adduced?”

Plaintiff in error takes the position that judgment for compensation cannot be rendered unless the evidence sustains both the finding that the injury to the head was a producing cause of death and also the finding that carbon-monoxide poisoning was a producing cause of death; while the contention of defendants in error is that it is immaterial that the evidence does not support the finding as to injury from gas, it being sufficient if there is evidence sustaining the finding that the injury to the head produced death.

There is nothing in the compensation law indicating that an injury suffered by an employee in the course of his employment, to be compensable, must be the sole cause of disability or death or that compensation is to be denied when an injury in the course of the employment causes disability or death not of itself but concurrently with another injury, or cause. The statute provides in general terms that an employee who is injured in the course of his employment shall be paid compensation and that if death results from the injury compensation shall be paid to the legal beneficiaries of the deceased employee. Sections -3b and 8 of Article 8306, Revised Civil Statutes of 1925.

It is well settled that in a suit under the compensation law it is not necessary for the claimant to show that the injury proximately caused disability or death. Recovery is authorized if a causal connection is established between the injury and the disability or death. “Producing cause” is the term most frequently used in compensation cases. Sometimes the cause required to be proven is described as an “efficient, exciting or contributing cause”. See Texas Employers’ Insurance Association v. Burnett, 129 Tex. 407, 105 S.W.2d 200; Travelers’ Insurance Co. v. Peters, Tex.Com.App., 14 S.W.2d 1007; Texas Employers’ Insurance Association v. Lovett, Tex.Civ.App., 19 S.W.2d 397, application for writ of error refused; Texas Employers’ Insurance Association v. Birdwell, Tex.Civ.App., 39 S.W.2d 159, application for writ of error refused. The approved definition of “proximate cause” in negligence cases and the approved definition of “producing cause” in compensation cases are in substance the same, except that there is added to the definition of proximate cause the element of foresee-ableness. Phoenix Refining Co. v. Tips, 125 Tex. 69, 72, 81 S.W.2d 60; Young v. Massey, 128 Tex. 638, 640, 101 S.W.2d 809; Texas Employers’ Insurance Association v. Burnett, 129 Tex. 407, 409, 410, 105 S.W.2d 200. It is apparent that “producing cause” is broader in its scope than is “proximate cause”. Since this is true and since the purpose of the compensation law is to extend compensation to employees injured in the course of employment, without reference to negligence on the part of employers, stricter rules certainly should not be applied in compensation cases for tracing results to causes than those that are appropriate to negligence cases.

In actions at common law to enforce liability for negligence the act or omission to be the proximate cause need not be the sole cause. It may be a concurrent or contributing cause. Gonzales v. City of Galveston, 84 Tex. 3, 19 S.W. 284, 31 Am.St.Rep. 17; Texas Power & Light Co. v. Culwell, Tex.Com.App., 34 S.W.2d 820; Gulf C. & S. P. R. Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659. The same principle is given effect in compensation cases which hold that when injury is sustained by an employee in the course of his employment which results in his disability or death, compensation therefor will not be denied, although the injury may be aggravated or enhanced by the effect of disease existing at the time or after-wards occurring. Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356; Commercial Standard Insurance Co. v. Noack, Tex.Com.App,, 62 S.W.2d 72; Texas Employers’ Insurance Association v. Parr, Tex.Com.App., 30 S.W.2d 305; Norwich Union Indemnity Co. v. Smith, Tex.Com.App., 12 S.W.2d 558; Millers’ Indemnity Underwriters v. Schrieber, Tex.Civ.App., 240 S.W. 963, application for writ of error refused.

Judge Nickels, writing the opinion in Norwich Union Indemnity Co. v. Smith, supra [12 S.W.2d 561], said: “And if ‘Bright’s disease’, etc., existed prior to the ‘fall’ and made substantial contribution to death, those facts would not preclude a holding that death resulted from injury received in the ‘fall’ ”. In Texas Employers’ Insurance Association v. Parr, supra, the jury in answer to a special issue found that seventy-five per cent, of the incapacity of the employee was chargeable to injury suffered by him in the course of his employment and by inference that the other twenty-five per cent, was the result of disease. It was held that notwithstanding such finding the employee was entitled to the full amount of the compensation allowed by the statute.

In the cases last cited the diseased condition of the employee was a concurring or contributing cause of the disability- or death, but compensation was awarded because the injury received in the course of employment concurred with the disease in causing the disability or death and was therefore a-producing cause.

Chief Justice Willson in Maryland Casualty Co. v. Mueller, Tex.Civ.App., 247 S.W. 609, 610, a compensation case, said: “It is clear, we think, that when an em-ployé as the result of an accident suffers several injuries, all of them not only can but should be considered in determining whether the resulting incapacity to work is total and permanent or not, without reference to whether provision is made in the statute for compensation, separately, of such injuries or not, and without reference to the fact that no one of such injuries alone would warrant a finding that the resultant incapacity was total and permanent. Such a finding, we think, would be warranted if the injuries together resulted in such incapacity”.

The statute (Section 12, Article 8306, Revised Civil Statutes of 1925) provides that if an employee sustains concurrent injuries resulting in concurrent incapacities, he shall receive compensation only for the injury that produces the longest period of incapacity, thus evidencing an intention to award compensation when incapacity to work results from more than one injury, without, however, paying compensation twice for one period of incapacity. It is possible and even probable that an employee may within a short period of time suffer two injuries in separate accidents and that incapacity or death may result either from one of the injuries alone or from both of them taken together. The allegations of defendants in error’s petition make such case. It is alleged that “said fall and the inhalation of the carbon-monoxide gas, both and each, caused and contributed to the death of the said H. T. Staggs”. According to the certificate from the Court of Civil Appeals there is evidence sustaining the jury’s finding that the injury suffered in the fall was a producing cause of death but no proof that death was caused by gas poisoning.

In view of the jury’s findings and the state of the evidence, the case is similar to negligence cases in which several acts or «missions on the part of the defendant are .•alleged by the plaintiff and found by the jury to be proximate causes of injury, and :in which the finding as to one of the causes is not supported by evidence. In such cases it is held that the unwarranted finding may be disregarded and judgment rendered for the plaintiff on the valid findings. Texarkana & Ft. S. R. Co. v. Rea, Tex.Civ.App., 180 S.W. 945; Schaff v. Morris, Tex.Civ.App., 227 S.W. 199, application for writ of error refused; Carter v. Ferris, Tex.Civ.App., 93 S.W.2d 504; St. Louis B. & M. R. Co. v. Cole, Tex.Civ.App., 4 S.W.2d 1019, 1022, Id., Tex.Com.App., 14 S.W.2d 1024.

Here, when the unwarranted findings that the employee was injured by the inhalation of gas and that such injury was a producing cause of his death are disregarded, there remain the findings that he suffered injury to his head in falling, that such injury was a producing cause of his ■death, and that death was not caused solely by disease. As there was evidence of the existence prior to the fall of a diseased condition .of the carotid artery and the brain tissue, we construe these remaining findings of the jury to mean that the injury suffered in the fall was a concurring cause with the preexisting diseased condition in producing death. So construed the verdict supports the judgment for compensation. See Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356, and other similar cases hereinbefore cited.

• It is contended by plaintiff in error that the jury’s findings mean that the injury from the fall and that from the gas poisoning were, taken together, the producing cause of death and not that each injury was a cause. We do not so construe the verdict. The jury found in answer to one issue that the injury from the fall was a producing cause and in answer to another that the injury from gas poisoning was a producing cause. There may be more than one producing cause, as there may be more than one proximate cause. There is nothing in the verdict or in the court’s charge suggesting that the jury meant to find that death would not have resulted but for the concurrence of the two injuries, the one from the fall and the other from the gas, unless it is the use by the trial court of the phrase “without which death would not have occurred” in defining the meaning of “producing cause”. That phrase is merely a part of the definition. As observed by Associate Justice Funderburk in Texas & Pacific R. Co. v. Short, Tex.Civ.App., 62 S.W.2d 995, 999, application for writ of error refused, “to say of a cause of an injury that it is one ‘but for which the injury wQuld not have happened’ is to repeat something already included in the usual and ordinary meaning of the word ‘cause’ ”. The phrase is ordinarily used both in the definition of proximate cause and in the definition of producing cause. Its purpose is to direct the jury’s attention to the importance of unbroken causal connection between the injury and the disability or death. When used in the charge as a part of the definition of producing cause it should not be read into separate and distinct issues as to different injuries in such way as to make the issues or the answers to them dependent the one upon the other.

We believe that the construction which we have given to the issues and the jury’s answers to them is in accord with the’ rules which require that a reasonable rather than a technical construction be given to special issues and the answers to them as a whole, and which permit the disregarding of conflicts or contradictions which are apparent rather than real and the entry of judgment, without reference to immaterial issues, on the answers to material issues which afford sufficient basis for judgment. First National Bank v. Rush, Tex.Com.App., 246 S.W. 349, 353; Whitson v. Nickols, Tex.Com.App., 12 S.W.2d 556; Texas Indemnity Co. v. Bridges, 52 S.W.2d 1075, application for writ of error refused; Texas Indemnity Co. v. Dean, Tex.Civ.App., 77 S.W.2d 748; Southland-Greyhound Lines v. Richardson, 126 Tex. 118, 86 S.W.2d 731; Traders & General Insurance Co. v. Ross, 131 Tex. 562, 117 S.W.2d 423.

We answer the certified question as follows : The findings of the jury in answer to special issues Nos. 1, 2, 3 and 4 were sufficient of themselves to support the judgment rendered awarding plaintiffs compensation for the death of Staggs, independently of further findings in answer to special issues Nos. 5, 6 and 7, which had no sufficient support in the evidence adduced.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: GERMAN, Commissioner.

license: Public Domain

text:
    PERRY v. STRINGFELLOW et ux.
    No. 2278—7413.
    Commission of Appeals of Texas, Section A.
    Jan. 3, 1940.
    Masterson & Bryan, J. P. Bryan, and Cleveland Davis, all of Angleton, for plaintiff in error.
    A. R. Rucks and Robert M. Lyles, both of Angleton, for defendant in error.
   GERMAN, Commissioner.

This is an appeal from an order granting a temporary injunction. The action of the trial court was affirmed by the Court of Civil Appeals. The trial court made elaborate findings of fact, which are set out in detail in the opinion of the Court of Civil Appeals. 113 S.W.2d 1012. These facts relate largely to the relative rights of the parties in the subject matter of the controversy, and under the view we take of the case it is wholly unnecessary to set them out here.

In the district court R. E. L. Stringfellow and wife were plaintiffs and S. S. Perry, Jr., was defendant. They will be so referred to here.

The controversy between the parties concerns their respective rights to pasture cattle and horses within an inclosure of some 3600 acres. Neither party pretends to own. in fee more than a portion of the lands within the inclosure. Undoubtedly, plaintiff has shown a prior right to possession of a part of the inclosed lands, but admits defendant’s right to the use thereof to the extent of some fifteen acres. In addition, it appears that there are perhaps as much as 1500 acres of land within said inclosupe that may rightfully be called “commons.” It is undisputed that for some years prior to the filing of plaintiffs’ petition herein, towit, August 16, 1937, defendant had pastured a considerable number of cattle and horses within said inclosure. It is further undisputed that during the summer months of each year the gates to said inclosure are down and cattle of the general public are left free to graze therein.

The order for temporary injunction entered herein was as follows: ’

“It is, therefore, ordered, adjudged and decreed by the court that the defendant S. S. Perry, Jr., be and hereby is enjoined and restrained, pending the final determination of this suit, from placing or keeping more than three head of cattle in that inclosure known as the Hudgins Pasture, situated in the F. J. Calvit Survey in Brazoria County, Texas, and about five miles Northeast of the Town of Velasco, lying East and abutting State Highway No. 19, North of and abutting the East Union Bayou, bounded on the North by Oyster Creek, and on the East by the Intracoastal Canal, and being that tract of land occupied and controlled by plaintiffs, and commonly designated as the S. H. Hudgins Pasture.
“And the said S. S. Perry, Jr., is further enjoined and restrained from in any manner interfering with or attempting to prevent plaintiffs and their employees from expelling from said inclosure any and all cattle placed therein by the defendant S. S. Perry, Jr., in excess of three head-of cattle.”

At a glance it is seen that so far as defendant is concerned, the court has adjudicated his rights to the extent of holding that he can pasture only three head of cattle in said inclosure. In the next place, it is obvious that said order goes far beyond merely holding the situation in status quo pending final hearing. It enjoins defendant from in any manner preventing plaintiffs from expelling defendant’s cattle from said land in excess of three head. This by necessary implication authorizes plaintiffs to expel defendant’s cattle from the land in question; and, as defendant is helpless to prevent such action, the result is exactly the same as if defendant had been ordered to remove the cattle himself. At least, the effect is undoubtedly the same as if a mandatory injunction had been issued, in that pending the hearing on permanent injunction it destroys the status, quo, rather than maintains it, so far as defendant’s cattle are concerned.

In the case of James v. E. Weinstein & Sons, 12 S.W.2d 959, 961, wherein the opinion of the Commission of Appeals was adopted by the Supreme Court, it was said: “If the effect of the granting of a temporary injunction does more than preserve the status of the property as it had theretofore existed, and accomplishes the whole object of the suit, it would be improper for the court to grant same, as the legitimate purpose of the temporary injunction is merely to preserve the existing condition until a final hearing can be had on the merits. The court is without authority to divest a party of property rights without a trial, and any attempt to do so is void.”

The opinion in that case clearly demonstrates that in this instance the court has practically determined the merits of the controversy and disposed of the case in all its essential particulars. We, of course, recognize that there are instances where a court, upon hearing for temporary injunction, may restore a possession which has been wrongfully taken, or may require affirmative action in lieu of maintaining the status quo. See for instance the cases of Texas Pipe Line Co. v. Burton Drilling Co., 54 S.W.2d 190, and Houston Funeral Home v. Boe, Tex.Civ.App., 78 S.W.2d 1091. It is evident, however, that this case does not come within any of the exceptions to the above quoted rule.

The injunction, in so far as it prevented defendant from putting other cattle in tire inclosure, or otherwise disturbing the status .quo, was proper; but in so far as it destroyed the status quo as to defendant’s cattle, was unauthorized.

The case of Popham v. Wright, Tex.Civ.App., 229 S.W. 335, was obviously one in which there had been a hearing upon the merits, because the opinion proceeds upon the theory that the relative rights of the parties had been determined.

The judgments of the Court of Civil Appeals and of the district court are reversed, and the cause is remanded with instruction that the trial court amend his order so as to conform to this opinion.

Opinion adopted by the Supreme Court.


author: HARVEY, Commissioner.

text:
    HARDY v. WERNETTE et ux.
    No. 2285—7431.
    Commission of Appeals of Texas, Section A.
    Jan. 3, 1940.

      Lee & Betts and J. Hubert Lee, all of Austin, for plaintiff in error.
    C. C. Wurzbach and J. L. Camp, both of San Antonio, for defendants in error.
   HARVEY, Commissioner.

Alleging that on September 2, 1936, she was duly appointed by the County Court of Gonzales County as guardian of the person of her grandson', Clarence Morris Wernette, a child seven years of age, Mrs. Elizabeth Hardy, a feme sole, brought this suit on January 21, 1937, against August R. Wer-nette and his wife, Myrl Wernette, in the district court for the 37th district in Bexar County. The purpose of the suit is to annul a judgment rendered by said district court on August 17, 1936, authorizing August R. Wernette and his wife to adopt said child under the provisions of the Act of the 42nd Legislature, Reg. Sess. of 1931, page 300, chapter 177. .The sections of this Act appear as sections of article 46a in vol. 1, Vernon’s Annotated Civil Statutes, p. 102 et seq. The trial court sustained a general demurrer to the plaintiff’s petition and the case was dismissed by the trial court. Mrs. Hardy appealed, and the judgment of the trial court, sustaining the general demurrer and dismissing the case, was affirmed by the Court of Civil Appeals at San Antonio. 114 S.W.2d 951. Mrs. Hardy has been granted the writ of error.

The judgment of said district court which Mrs. Hardy seeks to have annulled reads as follows:

“No. B — 83,651
“Ex Parte Clarence In the District Court Morris Wernette of Bexar County, and 37th Judicial Dis-August R. Wer- trict of Texas nette and Myrl Wernette Petitioners
“On this the 17th day of August, A. D. 1936, the time heretofore appointed by the Court, came on to be heard the petition of August R. Wernette and Myrl Wernette, for leave to adopt Clarence Morris Wer-nette, a minor child, and came the petitioners in person and by their attorneys, and it appearing tó the Court that a full written report has been filed herein by Lou Ella Hargis, a suitable person previously appointed by the Court to investigate the former environment and antecedents of said child, and for the purpose of ascertaining whether the child is a proper person for adoption, and also to investigate the home of the said petitioners aforesaid to determine whether it is a suitable and proper home for the said child, and it appearing to the Court from said report of from other evidence introduced herein, that the petitioners are husband and wife; that they are both adult residents of Bexar County, Texas and are of the Caucasian Race; that said child is a boy under fourteen years of age; that said child is a proper subject for adoption; and that the home of the petitioners is a suitable home for the said child and that the said child has lived in the home of the petitioners since the loss of his parents as well as prior thereto.
“It is therefore ordered, adjudged and decreed that the said petitioners be and they, and each of them, are hereby given and granted leave to adopt the said child Clarence Morris Wernette in accordance with the laws of the State of Texas; that said adoption is hereby effected as of this date and that child shall from henceforth be deemed and held to be the child of said petitioners, and each of them, and entitled to proper education, support and maintenance, nurture and care from them, and that said petitioners and each of them, shall be entitled to the' services, control, custody and company of the said child, provided, however, that the rights of inheritance shall be such as given him under the Laws of the State of Texas, and that he shall retain his name as Clarence Morris Wernette.
“It is further ordered, adjudged and decreed' that the petitioners shall pay all costs incurred herein, for which let execution issue.”

The averments of the petition of August R. Wernette and wife, in said adoption proceeding, are duly verified as required by statute. Said petition reads as follows:

■“Petition for Leave to Adopt Minor Child
No. B — 83,651
“Ex Parte Clarence' Mortis Wernette, and August R. and Myrl Wernette, Petitioners In the 37th Judicial District Court of Bexar County, Texas
“To said Honorable Court:
“Now comes August R. Wernette and Myrl Wernette, hereinafter called petitioners, and file this their petition for leave to adopt a minor child, and in support thereof they and each of them allege and will show:
“First
“That petitioners are husbahd and wife. That they are adult residents of the State of Texas and of the County of Bexar. That the minor child whom they seek leave to adopt is a boy, their grandson, about seven years of age, and his name is Clarence Morris Wernette.
“Second
“That said child is a proper subject for adoption, in that he has no home, due to the death of his mother and father who were drowned on or about June 30th, 1936, on Sandy Creek, which is near Nixon, Texas, in Gonzales County.
“Third
■“That just prior to and on the date of the death of said child’s parents, he was visiting your petitioners and, since the death of said child’s parents, he has lived and is now living with your petitioners.
“Fourth
“That, as hereinabove alleged, your petitioners are the paternal grandparents of said child, and petitioners’ home is a suitable home for said child, in that your petitioners love said child and they are willing and able to properly care for arid rear him. And they will carry out any and all orders of this Court made in connection with this their petition for adoption.
“Fifth
“That said child and your petitioners are all white persons.
“Wherefore, your petitioners pray that this court cause an investigation to be made of the former environment and antecedents of said child for the purpose of ascertaining whether he is a proper subject for adoption, and of the home of your petitioners to determine whether their home is a suitable home for said child; that this court select a suitable person to make such investigation ; that the court appoint a time and place for hearing this petition, which shall allow a- reasonable time for said investigation, but not exceeding thirty days, and that upon a hearing hereof this court enter its order and judgment granting your petitioners leave to adopt said minor child; ordering that such adopting shall be effected and that said child shall thereafter be deemed and held to be the child of your petitioners as fully as though born to them in lawful wedlock, as provided by the laws of Texas; and that the name of said child remain as Clarence Morris Wernette; and for such other and further relief, in law and in equity, as your petitioners may be entitled to.”

The above judgment of adoption and the petition in said adoption proceeding are alleged in the plaintiff’s petition in the present suit. In the plaintiff’s petition the following facts relevant to the contentions of Mrs. Hardy, hereinafter specifically stated, are also alleged. Clarence H. Wernette and Thula Rena Wernette were husband and wife. Mrs. Hardy was the mother of Thu-la Rena Wernette. Clarence H. and Thu-la Rena Wernette had three children— two girls and a boy, Clarence Morris Wer-nette, the latter being seven years of age. Mrs. Hardy owned a 51-acre farm on Sandy Creek, in Gonzales County, upon which she lived. On June 30, 1936, and prior to said date, Clarence H. Wernette with his family resided in another house on said farm and was using part of the farm for a chicken ranch for the purpose of making a living for himself and family. On June 21, 1936, the child, Clarence Morris Wernette, went to San Antonio to visit his father’s father and mother, August R. Wernette and Myrl Wernette. On June 30, 1936, while the child was still on said visit, a flood occurred in Sandy Creek and destroyed all the improvements on the 51-acre farm; and Clarence H. Wernette and his wife and two daughters were drowned. Mrs. Hardy, being rendered homeless by the flood, went to her brother’s home in Gonzales County and lived there until November 15, 1936, when she went to Austin where she established a home and has resided there ever since, On July 2,1936, the'third day after the flood had destroyed the home of Mrs. Hardy on the farm — and when she had no other home of her own, — it was orally agreed between Mrs. Hardy, on the one hand, and August R. Wernette and his wife, on the other hand, that- the child, Clarence Morris Wernette, should remain at the home of Mr. and Mrs. Wernette, and under their care, until Mrs. Hardy “found a place to live, at which time the parties would, by mutual agreement, determine who should have the care and custody of said child, and what disposition should be made of him.” In violation of this agreement, without any notice to Mrs. Hardy, August R. Wernette and his wife, on July 18, 1936, filed, in the 37th district court, their petition for the adoption of said child, set out above, and on August 17, 1936, without any previous notice to Mrs. Hardy, said court rendered the adoption judgment hereinabove set out. On September 2, 1936, Mrs. Hardy was appointed guardian of the person of said child by the county court of Gonzales County.

The propositions presented in the application for the writ of error, as grounds for the annulment of said adoption judgment, are, in substance:

_ First. That the district court for the 37th district did not have jurisdiction to render said adoption judgment for the reason that the petition in said adoption proceeding does not show that said child had lived in the home of the petitioners for six months and does not show “good cause” for dispensing with this statutory requirement.

Second. That said adoption judgment was obtained by fraud.

We shall take up the first of these propositions. The following provisions of the Act of 1931, which appear in Article 46a of Vernon’s Annotated Civil Statutes, are relevant :

In section one it is provided: “Any adult resident of this State may petition the District Court in the District of his residence * * * for leave to adopt a minor child; such petition shall set forth the facts relevant to petitioner and child * *

Section 3 reads as follows: “No petition for the adoption of any minor child shall be granted until the child shall have lived .for six months in the home of the petitioner; provided, that this requirement may be dispensed with upon good cause shown in the discretion of the Court, when the Court is satisfied that the home of the petitioner and the child are suited to each other.”

It is true, that the petition in the adoption proceeding here involved does not show that the child had lived in the home of the petitioners for six months. It is further true that the allegations of the plaintiff’s petition in the present suit show that said child had lived there less than sixty days at the time the adoption judgment was rendered. The subject of dispute therefore narrows down'to the provision of section 3 to the effect that the six months’ requirement, therein specified, “may be dispensed1 with upon good cause shown in the discretion of the court.” We shall not pause to-consider whether, in order to give the court jurisdiction to determine the existence of “good cause,” the facts relied on as constituting “good cause” must be alleged in the-petition for adoption. For the purposes of this discussion we shall take for granted that such allegations must be made. With this concession made, we turn to the petition in said adoption proceeding and find the following facts alleged therein, towit: That the petitioners were the grandparents of said child; that the parents of said child were drowned on or about June 30, 1936, and that said child had no home; that following the death of its parents, the child had lived with the petitioners and was living with them at the time said petition was filed. It is our opinion that these allegations were sufficient to invoke the jurisdiction of the court to determine whether the facts alleged constituted “good cause” for dispensing with the requirement that the child shall have lived in the hom.e of the petitioners for six months before the petition should be granted. The very fact that the court rendered the judgment of adoption it did, implies a determination by the court that such facts constituted “good! cause.” That said facts existed, is virtually admitted by Mrs. Hardy, for these same facts appear from the allegations of her petition in the present suit.

We now take up the contention that said adoption judgment was obtained by fraud. The essential basis for this contention is the agreement made with Mrs, Hardy by August R. Wernette and wife,, shortly after the flood, that the child should-remain in charge of Mr. and Mrs. Wernette until Mrs. Hardy found a place tb live when, the parties “by mutual agreement” would, determine who should have the care and custody of the child. The fact that this agreement was ignored by Mr. and Mrs. Wernette, did not affect the validity of the-adoption judgment. In the first place, Mrs. Hardy was not at that time the guardian of the person of said child, and in the next place it is not probable that if the court had been informed of such agreement the adoption judgment would not have been rendered as it was.

We conclude that the adoption judgment is valid. It, therefore, is unnecessary to consider whether the Court of Civil Appeals erred ’in holding that the Act of the 45th Legislature (1937) p. 1324, chapter 490, sec. 2, Vernon’s Ann. Civ. St. art. 46b, had effect to validate said adoption judg.ment.

The judgment of the trial court and that of the Court of Civil Appeals are affirmed.

Opinion adopted by the Supreme Court.


author: HICKMAN, Commissioner.

text:
    FRENCH INDEPENDENT SCHOOL DIST. OF JEFFERSON COUNTY v. HOWTH.
    No. 2283—7428.
    Commission of Appeals of Texas, Section A.
    Jan. 3, 1940.
    Morris & Bennett, of Beaumont, for plaintiff in error.
    G. H. Wilder, Jr., and Howth, Adams & Hart, all of Beaumont, for defendant in error. .
   HICKMAN, Commissioner.

In the trial court French Independent School District of Jefferson County, plaintiff in error, was awarded judgment against C.. W. Howth, defendant in error, for taxes on land belonging to him and situated in the district, together with a foreclosure of its tax lien upon such land. The Court of Civil Appeals reversed the trial court’s judgment and remanded the cause for another trial. 115 S.W.2d 1036.

Findings of fact and conclusions of law were filed by the trial judge, from which the opinion of the Court of Civil Appeals quotes at some length. Under the view which we entertain of the case as it comes to this court, we do not find it necessary to set out those findings in detail.

The taxable years involved were 1924 to 1934, both inclusive, except the year 1927; defendant in error having paid his taxes for that one year. He did not render his land for the years 1924 — 1925 and 1928-1934. For those years it was placed on the unren-dered role and valued by the tax assessor as follows: For the year 1924 at $660, for the year 1925 at $2,900, and thereafter at $5,-250. Two tracts of land are involved, one containing 22.3 acres, and the other 9 acres, making a total of 31.3 acres. The trial court found that the value of the 22-acre tract was $10 per acre and the nine-acre tract not more than $25 per acre; that the entire tract of land was worth less than $500, yet was rendered for $5,250. In short it found facts that would make the rendition unreasonable and confiscatory. The school district did not except to or assign errors upon such findings. We are, therefore, bound by them. The findings disclose that the trial court would have decreed the assessments void, but for the presence of certain facts which the court concluded operated as an estoppel against the land owner. The judgment of the trial court was based solely upon an estoppel. We quote the conclusions of the trial court on the question of estoppel: “That the defendant, C. W. Howth, having failed to appear before said equalization boards or any of the other taxing authorities of the said French Independent School District for said years 1924 to 1934, both inclusive, and make protest of the valuations placed on said land for said years after he had been notified of the valuations and by reason of his payment of the taxes on said land for the year 1927 upon the valuation of $5250.00 without protest, and by reason of having himself rendered said property in bulk for the years 1926 and 1927, he is now estopped to claim that said land has been excessively valued or improperly described.”

The Court of Civil Appeals concluded that under the conflicting findings the judgment could not be made to rest upon an es-toppel. Oür only inquiry is whether or not the findings of the trial court support its legal conclusion that defendant in error is estopped to question either that his land was excessively valued or that it was improperly described.

The conclusion that defendant in error was estopped to claim that his land had been excessively valued was based upon these fact findings: For the year 1926 he signed a rendition sheet prepared by the tax assessor in which the value was placed at $2,900, but the board of equalization raised the value to $5,250 for that year. The following year, 1927, he rendered his land at a value of $2,000. It was raised again to $5,250, but he nevertheless paid the taxes for that one year. There are apparently conflicting findings, as pointed out by the Court of Civil Appeals, with reference to the question of whether notices of the valuations placed upon his property were sent to or received by him. Be that as it may, it is our view that Howth is not estopped to claim that the assessment of taxes against' his property was arbitrary, confiscatory and, therefore, void, merely because he paid taxes under such void rendition for one year and failed to go before the authorities and enter a protest. More than one reason might be conceived why he paid the illegal tax for one year, but the fact that he did so does not operate to estop him from resisting void assessments for prior and subsequent years. His paying more than he was legally obligated to pay one time did not license the district to continue to make void assessments against him. The difficulty of the position of the plaintiff in error lies in the fact that the record contains unchallenged findings of fact which render the assessments confiscatory ' and void, and no affirmative act of the defendant in error authorized such assessments. The elements of an estoppel are not present in this phase of the case.

With reference to the question of whether defendant in error is estopped to claim that his property was improperly described, a different question is presented. The record discloses that his tracts were not separately assessed, but were described as one tract. The record further discloses that he gave one acre of his land to the school district for school purposes many years ago, which gift was not taken into account in the assessments by the tax assessor. It is further disclosed by the record, however, that defendant in error himself signed two rendition sheets during the taxable years in controversy, one in 1926 and one in 1927, in each of which the property was described just as it .was in the assessments made out by the tax assessor for the other, years, thereby affirmatively certifying that the description was correct'. These acts on his part operate as an estoppel against him to complain of the description or failure of the taxing authorities to assess the tracts separately. The matter of assessment by separate tracts is for the tax payer’s benefit and by his own act in rendering his land as one tract, defendant in error waived any right which he had to have same separately described and valued, State Mortgage Corporation v. Ludwig, 121 Tex. 268, 48 S.W.2d 950. He cannot complain that the 'school district continued to describe the land just as he represented in writing that it should be described.

In view of another trial we make these observations: It is disclosed by the record that defendant in error signed a rendition sheet for the year 1926, in which his property was valued at $2,900. If upon another trial it should be determined that the act of the district in undertaking to raise the valuation to $5,250 was void, then judgment may be rendered for taxes for that year at the valuation of $2,900, provided the pleadings authorize such judgment. State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076; Republic Insurance Co. v. Highland Park Independent School District, 129 Tex. 55, 102 S.W.2d 184.

Should it be determined upon another trial that any or all of the assessments were void, the right of the district again to assess and levy the taxes under Vernon’s Annotated Civil Statutes, Art. 7346, should not be prejudiced by any recitals in the judgment. State v. Richardson, supra.

For the reasons above assigned, the judg-. ment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.


text:
    CITY OF WEST UNIVERSITY PLACE et al. v. ELLIS.
    No. 2306—7485.
    Commission of Appeals of Texas, Section A.
    Jan. 3, 1940.

      Robert L. Sonfield, of Houston, for plaintiffs in error.
    W. P. Hamblen, Sr., W. P. Hamblen, Jr., and Orrin H. Bonney, all of Houston, for defendant in error.
   GERMAN, Commissioner.

In this case the City of West University Place will be designated plaintiff and J. R. Ellis will be called defendant.

The City of West University Place is incorporated under the general laws of the State of Texas, and has some 8,000 population. Under its charter and the laws of the State it has power to enact a comprehensive zoning ordinance. It adopted such an ordinance on June 11, 1937. Just when such ordinance became effective is in doubt, but that question need not be determined here.

The ordinance in question divided the city into “Single-Family Dwelling Districts” and “Retail Business Districts.” Defendant owns Lot 4A in Block 44, having acquired same prior to the adoption of the zoning ordinance. Said lot is located in the extreme southwest portion of what was designated as a Single-Family Dwelling District. It faces south on University Boulevard, which is the main street or thoroughfare through said city. Said lot appears to be about fifty feet in width east and west, and has that frontage on said boulevard. It is about 150 feet in length north and south. Prior to the date of the zoning ordinance there was a business district or “community center” in the city. This community center lies immediately west of defendant’s lot and between that lot and the grounds of West University School. The west line of Lot 4A constitutes the east line of the block upon which the business houses are located. According to the maps the property line is the division line between the -business district and the dwelling district, as created by the zoning ordinance. There is a drainage ditch some ten or twelve feet wide along this property line, but it is not clear whether it is partly on Lot 4A or entirely on the business block. Upon the business block west of Lot 4A there are six business houses, all of which appear to adjoin, and all of which face on University Boulevard. Immediately west of defendant’s lot, coming up to the west edge of the drainage ditch, is a two-story business house, used as a drugstore and as a liquor store. Just east of defendant’s lot, on Lot 4B, which is also about fifty feet in width, is a brick or brick-veneer building, originally built for a residence, but now used as a beauty parlor, and which was so used at the time of the enactment of the zoning ordinance.

This suit was brought by plaintiff to obtain an injunction restraining defendant from constructing a business house on his said lot, on the ground that such building would be in contravention of the zoning ordinance, under which said lot had been classified as residence property. ■ Defendant, while admitting the validity of the zoning ordinance in its general features, asserted that same was invalid as to his particular lot, for the reason that same., when applied thereto, was unreasonab^á, oppressive and arbitrary, in that his lot was suitable and valuable only as business property, and was of but little, if any, value as residential property; (áfícpfurther, because at the time of the enactTSent of the zoning ordinance said lot was naturally, and in fact, within the de facto business portion of said city.

The trial court, after a full hearing, denied the city any relief, and this action was upheld by the Court of Civil Appeals. 118 S.W.2d 907, 908. Because of the public nature of the case it was advanced for hearing here. •

The Court of Civil Appeals appears to have placed its decision upon the ground “that appellee’s proof must be taken to have established, as a matter of fact, that his lot was in the de facto business area of the community at the time the zoning ordinance was adopted” and consequently the restricting of such property to residential purposes, for which it was not suited, was, as to said property, unreasonable, discriminatory and arbitrary. The trial court filed no findings of fact and conclusions of law, and if its judgment may be sustained upon any reasonable theory supported by the law and the facts, it should be upheld.

As presented in assignments of error, plaintiff’s contentions in this court may be reduced in substance to two:

First. That the legislature of the State has given to cities such as the City of West University Place express authority to create zoning districts and restrict businesses to a particular locality, and therefore the reasonableness of the zoning ordinance as to any particular piece of property cannot be judicially inquired into. In this contention, plaintiff is in error in two particulars:

(a) The ordinance in question is one passed under a general power, and not one where the mode of the exercise of power is specific, and consequently is subject to the test of reasonableness. Houston & T. C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 70 L.R.A. 850; Crossman v. Galveston, 112 Tex. 303, 247 S.W. 810.

(b) But if otherwise, it is definitely settled that an ordinance, and even a legislative enactment, is subject to the constitutional attack that same is unreasonable, oppressive and arbitrary to such extent as to deprive one of property without due process of law. This has been decided innumerable times.

Second. It is next contended that the reasonableness of an ordinance is a question of law, and that the facts in evidence do not establish as a matter of law that the classification of defendant’s property as residential property was unreasonable or arbitrary.

A like contention was made in the case of Houston & T. C. Ry. Co. v. City of Dallas, supra, in which a general demurrer was sustained. However, the Supreme Court reversed and remanded the case for trial upon the facts alleged. Among other things it was held (as shown by the syllabus) as follows: “The police power, though its limits are not capable of precise definition, is not arbitrary or unrestrained; the courts may inquire into the reasonableness of a proposed exercise of it, and may deny the right where the public protection to be accomplished by a city ordinance involves an oppressive loss to the property owner affected, in proportion to the good accomplished, the question of reasonableness being one of law, but dependent upon the facts to be established.”

The recent case of City of Amarillo v. Stapf, 129 Tex. 81, 101 S.W.2d 229, and Id., Tex.Civ.App., 109 S.W.2d 258, is decisive in this respect. In 129 Tex. 81, 101 S.W.2d 229 the Supreme Court answered certified questions from the Court of Civil Appeals, and the opinion there contains holdings which are in some particulars applicable here. The Court of Civil Appeals thereafter considered the holding of the trial court upon the question of unreasonableness of the ordinance, and upheld the implied finding of the court in that repect, saying [109 S.W.2d 260]: “Under this testimony we are of the opinion that the ordinance, though a valid enactment in its general aspects, as applied to the property of the plaintiff, is clearly arbitrary and unreasonable and therefore unenforceable as to his proposed foundry.”

That court cited numerous authorities which are pertinent here. This holding was necessarily approved by the Supreme Court in dismissing application for ■writ of error with notation of “Correct Judgment.”

In our opinion, the judgment of the trial court may justly be sustained upon one or more theories. There is ample evidence to sustain a nfiding that defendant’s lot is practically worthless as residential property. In the first place, a residence thereon would have to be located within a few feet of a drugstore and liquor store. In the next place, it would have to be located practically upon the brink of a deep drainage ditch, which the photographs showed carried a considerable flow of water. Besides, the lot faces upon the principal thoroughfare of-the city, and immediately across the street from same another street opens into University Boulevard. It is thus seen that a residence on this lot would be subjected to all of the discomforts and inconveniences of a constant stream of traffic. In addition, there is already a business being conducted immediately east of the lot. While mere inconvenience and depreciation in value are not sufficient within themselves to constitute unreasonableness, yet it is settled that when depreciation in value is such as to make the property practically worthless for the designated use, this constitutes confiscation. In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 159, 67 L.Ed. 322, 28 A.L.R. 1321, referring to the matter of values in connection with the exercise of a power such as is here involved, the Supreme Court said: “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act.”

We also refer to the following cases: City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883; Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; Strain v. Mims, 123 Conn. 275, 193 A. 754; Dowsey v. Kensington, 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642; State ex rel. Taylor v. Jacksonville, 101 Fla. 1241, 133 So. 114; Phillips v. Township Council, 120 N.J.L. 45, 198 A. 368.

We do not think the placing t>f this lot in the residential district can be upheld upon the theory that its incorporation in such district was in furtherance of a general plan designed for the protection of the city as a whole. The right to sustain the validity of an ordinance on the ground that same is an indispensable or an essentially necessary part of a general zoning scheme has recently been discussed in several opinions, notably in State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210, 86 A.L.R. 654, and Women’s Kansas City St. Andrew Society v. Kansas City, Mo., 8 Cir., 58 F.2d 593. In a consideration of this question a principle emerges which is clearly recognized by our Supreme Court in the case of Houston & T. C. Ry. Co. v. City of Dallas, supra. This principle is that if the attempted protection to the public involves an oppressive loss to the property owner, and the protection afforded appears to be doubtful or inconsiderable, the ordinance will not be sustained. For instance, in said case the Court said: “If it be true that there is to be no benefit to the public from the proposed change, or a benefit which is inconsiderable when compared with the detriment to be suffered by the respondent, who will say that it is just and reasonable to subject respondent to such expense and loss as is averred?”

Again, as is said in several cases, “the seriousness of the restriction upon the private right is to be considered in balance with the expediency of the public interest.” Brady v. City of Keene, N.H., 4 A.2d 658, 660; Woolf v. Fuller, 87 N.H. 64, 174 A. 193, 94 A.L.R. 1067, Oklahoma City v. Dolese, 10 Cir., 48 F.2d 734.

In this connection, it is held that the importance of any particular lot or particular piece of property to a general zoning scheme may be determined partly by the fact of whether, or not such property comes within any of the exceptions allowed by the ordinance.

We note that in the ordinance under consideration the Board of Adjustment may make exceptions as follows:

“(3) Permit the extension of a building or use into a more restricted district immediately adjacent thereto, but not more than 50 feet beyond the boundary line of the district in which such building or use is authorized.”
“(5) Permit in any district, such modification of the requirements of these regulations as said board may deem necessary to secure an appropriate development of a lot where adjacent to such lot on two or more sides there are buildings that do not conform to these regulations.”

It appears from the proof in this case that defendant is almost entitled to an exception as a matter of law. At any rate, in view of these exceptions, there is ample proof to sustain a finding by the trial court that the placing of this particular lot in the residential section is not an essential part of the general scheme, and the protection afforded to the general public by its inclusion therein is negligible when compared to the manifest depreciation in the value of said lot by excluding it from the business district.

For the reasons stated herein the judgment of the Court of Civil Appeals is aifirmed.

Opinion adopted by the Supreme Court.


author: TAYLOR, Commissioner.

text:
    DAVIS et al. v. MAGNOLIA PETROLEUM CO. et al.
    No. 1785—7301.
    Commission of Appeals of Texas, Section B.
    Jan. 3, 1940.

      H. A. Berry and Carl Runge, both of Houston, for Federal Land Bank.
    King, Mahaffey & Wheeler and William Hodges, all of Texarkana, Edwin M. Fulton, of Gilmer, and C. E. Bryson, of Houston, for plaintiffs in error.
    C. E. Florence, of Gilmer, Lewis Rogers and Bruce Billingsley, both of Houston, Wynne & Wynne, of Longview, Sam Williams, of Mt. Pleasant, and W. H. Francis and Roy C. Ledbetter, both of Dallas, for defendants in error.
   TAYLOR, Commissioner.

Plaintiffs in error, the children and grandchildren of C. M. Davis, deceased, as plaintiffs in the trial court, brought this suit to try title against the following designated defendants: the fee owner of the land involved, the holder of a leasehold interest and other holders of mineral rights in the land, and the Federal Land Bank of Houston as holder of certain notes secured by deed of trust on the land, all of whom are defendants in error here. The jury was discharged by agreement of the parties after the evidence was introduced. The court thereupon as trier of the facts as well as the law rendered judgment that plaintiffs take nothing and that defendants go hence without day. The Court of Civil Appeals affirmed the judgment. 105 S.W.2d 695.

C. M. Davis, a widower, and his second wife, M. A. Davis, purchased the land in question from N. W. Grau and wife in August, 1919, during coverture of Davis and his wife, for the consideration of the execution and delivery by Davis of two vendor’s lien notes for $540 and $749, respectively, and the further consideration of his assuming payment of two other vendor’s lien notes then outstanding against the land for $580 each, due January 1, 1920 and January 1, 1921, respectively, the notes executed and those assumed carrying the same maturity dates.

The property in question was the homestead of Mr. Davis and his wife. Davis died intestate June 3, 1920, survived by his wife and three of their children, Ed, Aubrey and O. M. Davis, and J. L. Davis, a stepson of the wife. There were other children whom it is unnecessary to mention. The above described notes were outstanding against the land at the time of his death, which occurred some nine months after the land was purchased. Mrs. Davis and some of the children continued to occupy it as their rural homestead until November 27, 1924, at which time Mrs. Davis by warranty deed j oined in by her stepson and the three children above named, conveyed the land to the First National Bank of Gilmer.

The deed recites among other things that “We, Mrs. M. A. Davis, surviving wife of C. M. Davis, deceased, a feme sole,” for and in consideration of the sum stated in the deed, “have granted, sold and conveyed” to the First National Bank of Gilmer, Texas, the property in question, describing it. The deed is signed and acknowledged by Mrs. Davis, J. L. Davis, the stepson, and Mrs. Davis’ three children named above.

The consideration recited in the deed is $1450, paid by the bank as follows : “$167.-00 cash, * * * and the cancellation * * * of one * * * note due the bank * * * executed by Mrs. M. A. Davis and son, Ed Davis, for $450.00, also the * * * cancellation of a * * * note due J. W. Wall signed by Mrs. * * * Davis for * * * $550.00, and also the settlement and * * * cancellation of a * * * note due Roberts & Oliver, signed by Mrs. * * * Davis for * * * $175.00, also the assumption of the taxes due on said land for the years 1923 and 1924, amounting to $108.00.”

Immediately following the quoted recitation is the further recitation which reads: “Said above described indebtedness is community indebtedness created by C. M. Davis and Mrs. M. A. Davis during their married relation, except the note due Roberts & Oliver, said amount * * * (being) due for the burial expenses of C. M. Davis, the deceased husband of Mrs. M. A. Davis.”

After the sale of the land to the bank Mrs. Davis and the children then living with her moved away. The bank sold it to Burnett .Burns, who in turn, on January 14, 1925, conveyed it to M. C. Bell, retaining one-half of the oil, gas and mineral rights. On January 25, 1929, Bell executed a deed of trust in favor of the Federal Land Bank, and Bell and Burns executed various mineral conveyances to others who are defendants in error here or their grantors.

The sale it will be noted was made more that four years after the death of C. M. Davis. There was no administration on his estate. Mrs. Davis did not marry again and did not qualify as survivor. No question of bad faith on her part, or of anyone else connected with the sale, is presented or involved.

Plaintiffs seek to recover title to the respective interests claimed by them in the land and to cancel the notes held by the Federal Land Bank, upon the grounds indicated by the four following propositions: first, that by the deed above described Mrs. Davis did not exercise her power as community survivor, and that it was effective to convey only her one-half community interest, and J. L. Davis’ one-twelfth interest in the land; second, that upon the death of C. M. Davis his community interest was inherited by his children and grandchildren subject to the homestead rights of his widow and minor children, and that Mrs. Davis, without qualifying as survivor of the community, was without power to convey the community interest thus inherited to pay community debts that were not liens upon the homestead ; third, that Mrs. Davis, since she did ■not qualify as community survivor under ■the statute within four years after her hus'band’s decease, and since there was no regular administration on the estate during such time, lost the power as survivor to sell the children’s homestead interest in the community to pay community debts, especially those not secured by a lien on the homestead; and, fourth, that defendants failed to discharge the burden upon them to ■establish that Mrs. Davis sold the land to' pay community debts existing at the very time the land was sold.

Among the contentions presented here by plaintiffs as incidental to those made in support of the foregoing propositions, is one that will be disposed of preliminary to a discussion of the alleged errors of the Court ■of Civil Appeals. It is that the unqualified surviving wife in making sale of the community homestead to pay community debts does not have the same broad powers for this purpose as does the unqualified surviving husband. While admitting the surviving husband has power to sell the homestead to pay ordinary community debts (Stone v. Jackson, 109 Tex. 385, 210 S.W. 953) they question the power of the surviving wife to do so.

Such power on the part of the surviving wife was recognized by this Court in Ladd v. Farrar, 17 S.W. 55, in which it is held that the surviving wife has such power. Other cases so holding in which writs of error were refused by this Court are: Crawford v. Gibson, Tex.Civ.App., 203 S.W. 375; Hames v. Stroud, 51 Tex.Civ.App. 562, 112 S.W. 775; Henry v. Vaughan, 46 Tex.Civ.App. 531, 103 S.W. 192; Jennings v. Borton, 44 Tex.Civ.App. 280, 98 S.W. 445 and Jung v. Petermann, Tex.Civ.App., 194 S.W. 202. No such distinction as that insisted upon by plaintiffs has been established by our decisions, and the Court is not disposed to create such a distinction at this time. The contention is overruled.

. The Court of Civil Appeals held that Mrs. Davis in executing the deed to the bank exercised her power as community survivor and that it was effective to convey the entire interest in the property. Writ of error was granted upon the assignment complaining of this holding, but upon further consideration in the light of the subsequent action of this Court upon an assignment predicated upon a similar contention made by plaintiff in error in Griffin et al. v. Stanolind Oil & Gas Company, Tex.Com.App, 125 S.W.2d 545, we have concluded that the holding of the Court of Civil Appeals upon this point is correct.

Such a conveyance by a grantor having power to convey as community survivor, “passes title commensurate with the power,” notwithstanding he does not specify in the instrument of conveyance that he is acting under the power. It was immaterial whether Mrs. Davis, in making the conveyance, acted in her own name simply or in her name as survivor. Griffin et al. v. Stanolind Oil & Gas Co., supra. Neither is it material, so far as Mrs. Davis’ power to convey is concerned, that she acted as an unqualified community survivor in making the deed to the bank; Stone v. Jackson, supra; Fidelity Union Ins. Co. et al. v. Hutchins et al., Tex.Sup., 133 S.W.2d 105 ; or that the deed was made more than four years after the decease of her husband. Stone v. Jackson, supra. Martin v. Dial, Tex.Com.App., 57 S.W.2d 75, 89 A.L.R. 571; Jennings v. Borton, supra, writ refused; Kauffmann v. Hahn, Tex.Civ.App., 59 S.W.2d 435. Nor does it make any difference whether the debts in question were secured ■or unsecured, so far as Mrs. Davis’ power to make the conveyance for their payment is concerned, especially since she was not acting as an administrator under the statute. Griffin et al. v. Stanolind Oil & Gas Co., supra; Ashe v. Youngst, 65 Tex. 631; Stone v. Jackson, supra, and authorities there cited; Jung v. Petermann, supra.

Under the decisions cited above, and the settled holdings of this Court, the minor children of Mrs. Davis had no such rights against her as survivor as to prevent the sale of the homestead by her to pay community debts. This holding is not in conflict, as contended by plaintiffs, with Milner v. McDaniel, 120 Tex. 160, 36 S.W.2d 992, Johnson v. Hampton, 117 Tex. 580, 8 S.W.2d 640. They do not hold that the homestead is not subject to voluntary conveyance by the survivor to satisfy community debts, but that at the death of the parents the homestead was not subj ect to forced sale if ■constituent members of the family remained to take and occupy it as such. See in this connection Thompson et al. v. Kay et al., 124 Tex. 252, 77 S.W.2d 201. The minor children had no such rights against their mother as to prevent the sale by her to the bank.

When the land in question was conveyed to Davis in 1919 he executed in consideration therefor certain vendor’s lien notes and assumed the payment.of others, as above stated. These notes were due on the 1st of January, 1921, following Davis’ death in June, 1920, in a sum aggregating in excess •of $1,000. Davis at the time of his death was carrying two policies (W.O.W. and Yeoman) of life insurance payable to Mrs. Davis, the proceeds of which aggregated about $1480. From the proceeds received as beneficiary in the policies Mrs. Davis, •according to the holding of the Court of ■Civil Appeals, paid the notes. Its holding is predicated upon its additional holding in ■this connection that Mrs. Davis having paid the notes out of her separate funds, had the power to sell the property and to reimburse herself for the money paid out.

It was contended by plaintiffs in the -courts below, and is here, that an express parol trust was engrafted on the proceeds ■of the insurance policies by virtue of an agreement made by Mr. and Mrs. Davis with respect to applying it in the event of his death before hers, to pay the indebtedness, if any, against the property at such time. The Court of Civil Appeals upheld the judgment of the trial court, expressing the view that the testimony bearing upon the question was not sufficient to establish the trust. Its conclusion that the parol trust was not established is final. Pegues v. Dilworth, Tex.Com.App., 132 S.W.2d 582.

We approve the holding of the Court of Civil Appeals that the insurance proceeds were the separate property of Mrs. Davis (Martin v. McAllister, 94 Tex. 567, 63 S.W. 624, 56 L.R.A. 585; San Jacinto Bldg., Inc. v. Brown, Tex.Civ.App., 79 S.W.2d 164, writ refused; Tweedie Foot-Wear Corp. v. Fonville et al., Tex.Civ.App., 115 S.W.2d 421, writ refused) ; and that she had power to sell the property to reimburse herself for the money, if any, paid out by her in satisfaction of the community indebtedness outstanding at the time of the death of her husband. Martin v. McAllister, supra; Leatherwood v. Arnold, 66 Tex. 414, 1 S.W. 173; Jennings v. Borton, 44 Tex.Civ.App. 280, 98 S.W. 445, writ refused.

This brings us to a consideration of the final contention of plaintiffs urged in connection with the fourth proposition, supra. It is that there is no evidence to establish the existence of any community debts at the time Mrs. Davis sold the land. It is not contended that there was no community indebtedness when Mr. Davis died. The testimony is undisputed that there was. The contention is, precisely stated, that there is no competent evidence to establish the existence of such indebtedness at the very time Mrs. Davis made the deed to the bank.

It is conceded by plaintiffs that if the power exists in an unqualified community survivor to sell the community property to pay community debts a presumption of fact arises that its sale by such survivor was made for such purpose. It is contended, however, that this presumption falls in the face of the recitation of the deed by Mrs. Davis to the bank that the consideration paid was for the cancellation of a note due the bank executed by Mrs. Davis and one of her sons for $450 and another note for $550 due J. W. Wall signed by Mrs. Davis, and other items which were not, during the lifetime of Mr. Davis, indebtednesses existing in the form recited. It is contended in this connection also that the burden of proof was upon defendants to establish that Mrs. Davis sold the land to pay community debts, and that they failed to discharge this burden.

The recitation in the deed particularizing the items of indebtedness paid by the consideration is that they were to discharge an “indebtedness created by C. M. Davis and Mrs., M. A. Davis during their marital relation,” with the exception of expenses for the burial of. the deceased.

It does not necessarily follow; however, that the trial court determined that the items designated were in their original form, especially in view of the fact that no findings of fact o'r conclusions of law were filed, or requested. As stated by Judge Gaines in Johnson v. Archibald, 78 Tex. 96, 14 S.W. 266, 268, 22 Am.St.Rep. 27: “At all events, there being no conclusions of fact and law found in the record, if the evidence is sufficient to support the judgment upon any defense presented in the case it is to be presumed that the court found in favor of the defendants upon that issue.”

We cannot say in view of the record before us that there is no evidence to support the conclusion that Mrs, Davis sold the land for the purpose of reimbursing herself for the payment of community indebtedness (evidenced in a different form from that in which created) out of her separate property, as will presently appear.

It is undisputed that when the land was conveyed in 1919 to Mr. Davis he executed certain vendor’s lien notes and assumed the payment of others, and that part of such outstanding indebtedness was due at the time of his death on June 3, 1920. The facts and conclusions concerning the life insurance proceeds have already been stated. The stepson testified that neither his father, a retired minister, nor his stepmother, had means of any consequence; that the father at the time of his death was indebted to the bank, the exact amount of which he did not know. Oliver M. Davis testified that in 1920 he signed a note with his father due to the bank in October of that year; that he did not remember just how much of the note was carried over, but that Ed, another brother, probably signed with his mother after Oliver moved out in the fall of 1920. He testified also that his mother took “the insurance money that she got ■ * * * and paid off the land notes against the land”; but that he did not know whether they were the notes his father executed for the land or those assumed; also that his mother, after his father’s death, paid more than $1,000 to J. W. Wall from insurance money in settlement of the land notes his father had made or assumed. Mrs. H. V. Davis (not related to the members of the Davis family here involved), bookkeeper for J. W. Wall through the years 1920 to 1924, testified that J. W. Wall at the time of the death of Mr. Davis held land notes against the land in an amount around $1200 to $1400 and that Mrs. Davis after the death of her husband paid Mr. Wall for vendor’s lien notes which he held. J. L. Davis, who signed the deed with Mrs. Davis, testified that after his mother collected the insurance money from the Woodmen of the World and the Yeoman, she paid off the land notes against the land and that he knew this of his own personal knowledge. H. P. McGaughy, who was connected with the bank during the time of the transactions in question, testified that Mr. Davis, in January 1920, gave the bank a note for $550.35 secured by a mortgage on certain livestock and other personal property; that the bank held the claim due J. W. Wall of $550, and paid him for that; also that the bank by virtue of the execution of the deed to it cancelled the note for $450 therein referred to; also that the bank paid the taxes referred to in the deed as assumed by it.

The foregoing testimony is largely from the cross examination of witnesses who were called by plaintiffs, with the exception of McGaughy’s and Mrs. H. V. Davis’. It is not conclusive in its effect, but was competent evidence of a substantial nature to support a conclusion on the part of the trial court that the indebtedness referred to in the recited consideration was the then form of the community indebtedness existing when Mr. Davis died.

In view of the record stated we are unable to say there was no testimony before the trial court to support a judgment for defendants predicated upon a finding of the trial court that Mrs. Davis sold the land to reimburse herself for the payment by her of community indebtedness out of her separate property.

As the trial court was the trier of the facts as well as the law and there was some evidence to support the judgment rendered, the question of the burden of proof becomes immaterial for present purposes.

The judgment of the Court of Civil Appeals affirming that of the trial court, is affirmed.

Opinion adopted by the Supreme Court.


author: SMEDLEY, Commissioner.

text:
    McFARLANE et al. v. WHITNEY et al.
    No. 1786—7307.
    Commission of Appeals of Texas, Section B.
    Jan. 3, 1940.

      E. D. Smith, of Crane, R. J. Channell, of El Paso, and W. H. Penix, of Mineral Wells, for plaintiffs in error.
    Scarborough & Ely, Edmund C. Yates, and Walter' Ely, all of Abilene, and J. A. Moore, of Odessa, for defendants in error.
   SMEDLEY, Commissioner.

Defendants in error R. S. Pershing and F. O. Pershing contest on two grounds the validity of a public sale of land made by a trustee under power of sale given in a deed of trust. The sale is attacked, first, on the ground that notices of the sale were not posted at three public places as required by statute, the contention being that the posting was not in compliance with the statute because all three notices were posted in the unincorporated town of Crane, the county seat, so close together as to amount to a posting in the same place. The second ground of attack is that the sale was not made between the hours of 10 o’clock A. M. and 4 o’clock P. M. as required by statute, because according to solar or true sun time the property was sold before 10 o’clock A. M. The sale was made at 10:15 A. M., central standard time.

The suit was filed by plaintiffs in error J. H. McFarlane and R. C. Wyche, who claim under the trustee’s sale, against R. S. Pershing, F. O. Pershing and Ross O. Whitney for the title and possession of three surveys of land in Crane County aggregating 1704.8 acres. It seems that Ross O. Whitney neither had nor claimed any interest in the land, as the judgment rendered by the district court recites his discharge with his costs on disclaimer. Defendants in error R. S. Pershing and F. O. Pershing filed a cross action for the title and possession of the land, specially pleading that on and prior to September 1, 1922, they owned the land in fee simple, title being in the name of R. S. Pershing, that on said date R. S. Pershing executed a deed of trust conveying the land to Charles Wyche, trustee, to secure the payment of a note executed by R. S. Pershing to Miriam C. Wyche in the sum of $2500, that on April 7, 1931, a substitute trustee undertook to sell the land publicly for the satisfaction of the said debt and that the attempted sale was void for three reasons: (1) because notices of the sale had not been posted as required by law; (2) because the sale was not made between the hours of 10 o’clock A. M. and 4 P. M.; and (3) because at the time the attempted sale was made usurious interest had been collected by the owner of the note in a total sum sufficient to pay the principal of the debt in full.

The district court, after trial without a jury, rendered judgment that plaintiffs in error take nothing by their suit and that defendants in error R. S. Pershing a.nd F. O. Pershing have judgment against plaintiffs in error for the title and possession of the land except 213 acres of royalty described in a deed, identified by reference to the records, from Ross O. Whitney, trustee, to Miriam C. Wyche, which royalty interest was adjudged to plaintiff in error R. C. Wyche.

The trial court found in substance that no usurious interest was either contracted for or paid. The correctness of the finding has not'been challenged by defendants in error either in the Court of Civil Appeals or in this court. After setting out fully the facts as to the execution of the note and deed of trust, certain extensions of the debt, the trustee’s sale, the places where the notices were posted and the time of the sale, the trial court concluded that the trustee’s sale was not void on account of having been made before 10 o’clock by sun time, but that the sale was void because the posting of the three notices all in the town of Crane was not in compliance with the deed of trust and not in compliance with the law. The Court of Civil Appeals affirmed the trial court’s judgment, holding that two of the notices were posted in such close proximity to the one at the courthouse door that a proper posting of the notices was not made as contemplated by the statute and the terms of the deed of trust. 106 S.W.2d 406.

We consider first the question as to the posting of the notices. The deed of trust, which was executed September 1, 1922, provides that before making sale of the property the trustee shall give “notice of the time, terms and place of sale and of the property to be sold, as now required by statute in sales of real estate under deeds of trust”. It authorizes the trustee after selling the property to execute to the purchaser a good and sufficient deed to the property sold. The last paragraph in the deed of trust is as follows: “It is further provided that the recitals in the conveyance to the purchaser shall be full evidence of the matters therein stated, and all the prerequisites to said sale ■ shall be deemed to have been performed.” . The trustee’s deed made after the sale to Miriam C. Wyche contains among other recitals the statement that the sale was made “after having given public notice of the time, place and terms of such sale as .required by law and by the terms of said deed of trust.”

The statute regulating the manner of making sales of real estate under deeds of trust that was in effect when the deed of trust was executed is Chapter .15, Acts First Called Session, 34th Legislature (1915). It provides that notice of such sale shall he given “by posting written notice thereof for three consecutive weeks prior to the day of sale in three public places in said county or counties, one of which shall he at the court house door of the county in which such sale is to be made, 'and if such real estate he in more than one county, one at the court house door of each county in which said real estate-is situated, or such notice may he given as required by statute in case of judicial sale, or such notice may be given in either of said methods, or as may be provided for in said deed of trust or contract lifn”. The sale was made April 7, 1931, at which time Article 3810 of. the Revised Civil Statutes of 1925 was in effect. -The codifiers made changes in the act of 1915 above referred to in bringing it into the Revised Statutes, but such changes are not material here. The statute in effect when the deed of trust was executed and the statute in effect when the trustee’s sale was made both authorized the trustee to give notice of .the sale by posting written notice thereof for three consecutive weeks in three public places in the county, one of which should be at the courthouse door.

The facts bearing upon the question whether the notices were posted in three public places are, according to the findings of the trial court and the undisputed evidence, as follows: One of the notices was posted at the door of the courthouse in the town of Crane, the county seat. Another notice was posted at the “Humble Filling Station”, an oil and gasoline service station which was about 400 feet east from the courthouse door. This service station was in the town of Crane and was on the main public highway of the county, which was a paved highway running north and south through the county and the only state highway in the county and the only road in the county that had been legally laid out. There were other roads over which the public traveled. The third notice was posted at the post office, which was about 1200 feet northeast from the courthouse door and was also in the town of Crane and on said main public highway but farther north than the Humble Company’s service station and on the other side of the street. The courthouse was not on the main highway.

There was no other town in the county and there was in the county outside of the town of Crane no school house, church or public building where people generally gathered for public purposes. There were situated in the county within a radius of five miles of the town of Crane seven or eight oil camps or communities maintained by oil companies for their employees, superintendents and officials. The largest of these, that of Gulf Oil Company, was two or three miles southeast of the town of Crane. About 200 people lived in that camp. It was connected with the town of Crane by road and in it a store was operated. These camps were situated on property owned by the, oil companies that maintained them.

Crane County was organized in 1927. The town of Crane was incorporated in 1933. According to the 1930 census the population of the county was 2194 and 1000 of those who resided in the county lived in the town of Crane. All but 25 or 30 of the inhabitants of the county lived within a radius of five miles of the town.

From the recitals in the deed of trust and the trustee’s deed, above qhoted, the presumption arises that public notice of the sale was given as required by law and by the terms of the deed of trust. Adams v. Zellner, 107 Tex. 653, 183 S.W. 1143. The facts in evidence, which have been stated, with respect to the places where the notices were posted, in our opinion not only do not overcome the presumption but conclusively prove compliance with the statute and with the provisions of the deed of trust.

The requirement is merely that the notices be posted in three public places in the county, one of which shall be at the courthouse door. Thus the courthouse door is designated by the statute as one of the three public places and it is left to the trustee to select two other public places in the county. The statute does not provide that the other two public places selected shall not be in the town or city that is the county seat, and it does not prohibit the posting of two or of all three of the notices in the same city or town. We are not authorized to read, such provision into the statute.

Nor can it be said that under the facts of this case the posting of all three notices in the town of Crane did not give due publicity to the sale. ' There was no other town than Crane in the sparsely settled county and there was outside of the town of Crane no schoolhouse, church or other public building. All of the inhabitants of the county except 25 or 30 lived within a radius of five miles of the town. The post office and the Humble Company’s service station were in the town and on the main public highway of the county, the only designated state highway m the county, the post office being on one side of the highway and the service station on the other. These were public places.

Were the places where the notices were posted separate and distinct places or were they, or two of them, so close together as to be in" effect only one place or only two places? The service station was 400 feet from the courthouse door, more than the length of one of the blocks of the town, and on a different street from that on which the courthouse was situated. The evidence is that the service station was on the state highway running through the town and that the courthouse was not. The post office was 1200 feet, more than three blocks, northeast of the courthouse door and was also on the state highway but about two blocks, 600 feet or more, north of the Humble service station and on the opposite side of the highway. It is evident that the three places were far enough removed, the one from the other, to be separate and distinct places and that there was no such relation between any two of the three places in location, ownership or use, as to make them in effect one place. They were three public places in the county within the meaning of the act of 1915 and Article 3810. Graham v. Pitts, 53 Miss. 307.

Three decisions. are cited by the Court of Civil Appeals in support of its conclusion that the places of posting were not three different public places as contemplated by the statute. They are National Loan & Investment Company v. Dorenblaser, 30 Tex.Civ.App. 148, 69 S.W. 1019, application for writ of error refused, Phipps v. Fuqua, Tex.Civ.App., 32 S.W.2d 660, application for writ of error refused, and Holmes v. Klein, Tex.Civ.App., 59 S.W.2d 171. The case last cited is not in point. The sale was of personal property. To-such sale Article 3810 has no application, and the opinion does not disclose what method of giving notice was prescribed by the chattel mortgage.

In the Dorenblaser case one notice was posted at'the courthouse door in the town of Hillsboro, one on a telephone post on the northeast corner of the public square in which the courthouse was situated, and the other on a telephone post on the northwest corner of the said square. It was held1 that the posting of the notices was practically at one place and not at three public places. Neither the opinion of the Court of Civil Appeals nor the application for writ of error- discloses the size of the public square or the distances between the places where the notices were posted. The decision seems to rest upon the fact that the notices were not posted in three separate-places, but were all in effect in one place, at the courthouse. As has been shown, such state of facts does not exist in the instant case. The opinion in that case treats the manner of posting the notices-as an irregularity sufficient, in connection with gross inadequacy of the price for which the property was sold, to set aside the sale. There is no evidence of inadequacy of price in the sale in the instant case.

In Phipps v. Fuqua, supra, [32 S.W.2d 662], the notices of sale of land in Deaf Smith County were posted, as' shown by the recital in the trustee’s deed, one at the courthouse door, “one at the cross section of Harrison highway and Twenty-Five Mile avenue, and one on a telephone post on East Third street in Hereford, north of the First National Bank Building”. This recital is the only evidence in the statement of facts in that case with' reference to the places where the notices were posted. It seems, therefore, to have been held by the Court of Civil Appeals in the Phipps v. Fuqua case that the posting of two of the notices in one town constitutes of itself, and without reference to any other facts, a failure to comply with the requirement of the statute that the notices he posted in three public places. It is our ■opinion that such decision is unsound for the reasons hereinbefore stated.

The second ground of the attack made by defendants in error upon the trustee’s sale is that it was not made between the hours of 10 A. M. and 4 P. M. as required by the deed of trust and by Article 3810, because according to solar or true sun time, but not according to central standard time, the sale was made before 10 o’clock A. M. Defendants in error in support of this contention rely upon three -decisions of the courts of this state, the latest of which was made in 1916. In the first two of such cases, Ex parte Parker, 35 Tex. Cr. 12, 29 S.W. 480, 790, and Texas Tram & Lumber Company v. Hightower, 100 Tex. 126, 96 S.W. 1071, 6 L.R.A.,N.S., 1046, 123 Am.St.Rep. 794, it was held that in determining the time of the expiration of a term of court limited by statute to a certain day, solar time and not standard or railroad time should be used. The Court of Civil Appeals in Walker v. Terrell, 189 S.W. 75, application for writ of error refused, applied the same standard of time in deciding whether a saloon was kept open after 9:30 P. M. in violation of what was known as the 9:30 closing law. It may be observed that the two decisions of the Texas courts last cited were when made contrary to the decisions in a number of the other states, the courts of which, on account of the general use of standard time, recognized standard time rather than solar time as the criterion in determining questions dependent upon time. Rochester German Insurance Company v. Peaslee-Gaulbert Company, 120 Ky. 752, 87 S.W. 1115, 89 S.W. 3, 1 L.R.A.,N.S., 364, 9 Ann.Cas. 324; Salt Lake City v. Robinson, 39 Utah 260, 116 P. 442, 35 L.R.A.,N.S., 610 and note, Ann.Cas.1913E, 61; 29 R.C. L. pp. 727-730, Sections 1-3, 62 C.J. pp. 960-962, Sections 3-6; Note 6 L.R.A.,N.S., 1046.

The Supreme Court, in Texas Tram & Lumber Company v. Hightower, supra, followed solar or true sun time in preference to “railroad time”, which was the standard time adopted, for the sake of uniformity, in 1883 by the railroads of the United States. The use of that standard or railroad time soon became general and in the more populous communities of the nation almost exclusive. Standard time, however, as now known and used, is that which was established as the standard time for the United States by the Act of Congress of March 19, 1918 (15 U.S.C.A., §§ 261-265). By that act provision was made for dividing the territory of the United States into five zones and a standard time for each zone was fixed, based on the mean astronomical time of a specified degree of longitude.' Texas has been placed in the second zone, the standard time of which zone is designated by the act as United States standard central time.

It has been held that this act of Congress makes the standard of time “applicable only (1) to the movement of common carriers engaged in interstate and foreign commerce; (2) to its own officials and departments; and (3) to all acts done by any persons under federal statutes, orders, rules and regulations”. Massachusetts State Grange v. Benton, D.C., 10 F.2d 515, 516; Id., 272 U.S. 525, 47 S.Ct. 189, 71 L.Ed. 387. But even though the act does not by its terms provide a standard of time for all persons subject to the jurisdiction of the United States, such has been its practical effect. Very soon after the act went into effect the standard of time established by and under it was adopted and came into general use by the people throughout the United States. Such fixed single standard was found to be not only beneficial but necessary in the operation of railroad trains and other means of transportation and in conducting business, governmental and private, and social affairs. These facts are so generally known that the courts may and should take judicial knowledge of them. Reynolds v. McMan Oil & Gas Company, Tex.Com.App., 11 S.W.2d 778, 784; Salt Lake City v. Robinson, 39 Utah 260, 116 P. 442, 35 L.R.A., N.S., 610, 617, Ann.Cas.1913E, 61; 20 American Jurisprudence, pp. 49-50, Sec. 18. The court judicially knows that in 1931 .when the trustee’s, sale was made central standard time was the time generally used in Crane County. The undisputed evidence establishes the same fact. The court also knows judicially that central standard time was the time generally used in that county in 1922 when the deed of trust was executed and that the same standard of time was in general use in Texas when the Revised Civil Statutes of 1925 containing Article 3810 were enacted. We conclude that the trustee’s sale made on April 7, 1931 before the courthouse of Crane County between the hours of 10 A. M. and 4 P. M. according to central standard time, was made within the time intended by the parties to the deed of trust and within the time intended by the statute.

The conclusion that the trustee’s sale was valid makes unnecessary the determination of other questions presented by the application for writ of error and in the briefs. The case having been fully developed, the judgment that should have been rendered by the trial court is here rendered. The judgments of the district court and the Court of Civil Appeals are reversed and judgment is rendered in favor of plaintiffs in error against defendants in error R. S. Pershing and F. O. Pershing for the title and possession of the land described in the second amended petition of plaintiffs in the trial court, vesting in plaintiffs in error title to the interests in said land owned by them respectively as set out in said petition, that said defendants in error take nothing by their cross action, that plaintiffs in error take nothing by their suit for damages, and that Ross O. Whitney, defendant in the trial court, be discharged with his costs on his disclaimer.

Opinion adopted by the Supreme Court.